Government, and more particularly the Departments of Trade and Industry and Arts and Culture, entered into the current controversy around the ownership of the copyright in the National Anthem by issuing a media release on 18 June 2012. With respect, its contribution to the debate evidences the same lack of knowledge and insight into Copyright Law that is apparent in its ill-conceived and executed Intellectual Property Laws Amendment Bill (the infamous so-called “Traditional Knowledge Bill”)

In regard to the ownership and duration of the component parts of the current National Anthem, and of the composite Anthem as a whole, see “An Anthem To Ignorance – The Case of Nkosi Sikelel’ iAfrika” on this blog. The bottom line is that the Nkosi component, both words and music, and the words of Die Stem are in the public domain and, being the property of no-one, are free for use for all, unless they have been cast in a particular new form or arrangement, in which case copyright can exist in, but is limited to, that particular form or arrangement. Such new copyright grants no rights in respect of the pre-existing subject matter. The music of Die Stem is still in copyright and such copyright is owned by the heirs of the composer, MJ De Villiers, while the new words of the English component of the Anthem and the merged composite work are the subjects of copyright which is owned by Jeanne Zaidel-Rudolph, the author/composer.

“Proclamation does not create copyright”

It is stated by the Departments that the adoption of the current work as the National Anthem by Proclamation no 68 in the Government Gazette of 10 October 1967 makes the work the property of the country – by which is presumably meant that it is owned by the State. The Proclamation says no such thing, nor does section 4 of the Constitution from which it derives its authority. The section merely provides that the State President is empowered to determine by Proclamation what work shall be the National Anthem and the Proclamation purports to do no more than this. This determination of the National Anthem no more creates ownership of the copyright in the particular work than it would make the State the owner of the copyright in  “Somewhere Over the Rainbow” if it was determined as the National Anthem. Similarly, when Beethoven’s Ninth Symphony was designated as the temporary National Anthem for purposes of the 1992 Olympic Games, the State could not have become the copyright owner of this work by any proclamation.

Copyright is created and owned in terms of the Copyright Act and nowhere is it provided that the State can become a copyright owner by proclamation.

It is claimed that Section 5 of the Copyright Act enables the State to become the owner of the copyright in a literary/musical work (an anthem is such a work) where it commissions the making of the work and pays for such making, and that the State is the owner of the copyright in the National Anthem on this basis.

In the first place the facts show that neither the music of Die Stem nor the composite work which constitutes the current National Anthem were made pursuant to any commission by the State or any other person.

In the second place, Section 5 has nothing to do with commissioned works and, moreover, Section 21(c), which does deal with the ownership of copyright in commissioned works, does not cover literary or musical works, which means that even if the making of these types of works is commissioned by a third party, the copyright in them is owned by the author/composer.

“Filling imaginary gaps?”

The Departments say that they are “currently reviewing gaps in the legislation” with regard to the National Anthem, presumably with a view to rectifying the situation. There are no “gaps” – all that is required is that the State should do what any sensible person who wishes to acquire copyright in a work would do, and what the State did in 1957 with regard to Die Stem, namely obtain an assignment of the copyright in its favour from the copyright owner by means of a written agreement.

In the event that the State seeks to acquire copyright in a work by legislation, it would act in breach of Section 25 of the Constitution (the “Property Clause”) unless it paid adequate compensation to the person who owns copyright in terms of the Copyright Act.

It is a matter for considerable concern that the very government departments that are responsible for the administration of copyright and the legislation in that regard should show such appaling ignorance of the subject. Small wonder in the circumstances that the DTI comes up with ridiculous legislation like the Traditional Knowledge Bill. It is simply not good enough.

The Government should either acquire the necessary expertise or consult those that do have it. Otherwise our intellectual property legislation and the state of this field of law are sailing headlong at the rocks.