[Guest Post] Who owns the copyright to Nigeria’s “new” national anthem?

The IPKat has received and is pleased to host the following guest contribution by Katfriend Seun Lari-Williams, PhD researcher in the fields of copyright and dispute system design at the University of Antwerp, regarding copyright ownership of Nigeria’s re-adopted national anthem. Recently, the Nigerian government decided to do away with the country’s national anthem and re-adopt the previous national anthem - the one it used between 1960 and 1978. A court judgment in Uganda had raised similar questions which this Kat analysed in 2019. Over to Seun:

Who owns the copyright to Nigeria’s “New” national anthem?
by Seun Lari-Williams 

As Nigeria reverts to its old national anthem written and composed in 1959 (pre-independence) and titled "Nigeria, We Hail Thee," there have been more backlash than praise concerning the necessity, timing, and the implication of this change for Nigeria. This post explores the copyright issues at play in all of this.

The lyrics of the now former Nigerian anthem, “Arise O Compatriots,” was taken from five of the best entries in a national contest and its music composed by Benedict P. Odiase. It was reported that the composition has earned the composer royalties from the Musical Copyrights Society Nigeria (MCSN). Notably, in 2013, the estate of the composer sued the telecommunications giant MTN Nigeria for N1.5 billion naira for the unauthorized use of the national anthem as a ringback tone. The basis on which Odiase is able to make the claim is not clear to this author but perhaps the work was neither donated to the nation nor was its copyright acquired from him.

Questions which this post raises are: Between the government and the author/composer, who owns or profits from the use of this ‘new’ national anthem? Is the national anthem in the public domain? Ownership affects who controls the anthem's use and receives any royalties. Additionally, if the anthem is in the public domain, it can be freely used without legal constraints. Clarity on these issues will aid legal compliance, protect the rights of the creators and/or their heirs, and prevent potential disputes.

As an aside, the questions raised are reminiscent of the legal issues highlighted in a 2019 IPKat post on the copyright dispute over Uganda’s national anthem. In that case, the Ugandan Court of Appeal had to determine the copyright ownership between the composer and the government. Similarly, Nigeria’s “new” anthem, penned by Lillian Jean Williams and music composed by Frances Benda, which had earlier served Nigeria from 1960 to 1978, may have its own set of copyright challenges.

Copyright status of "Nigeria, We Hail Thee": Who profits?

To understand the issues at play, it is necessary to delve into some legal history (see here). During Britain’s colonial rule over Nigeria which lasted for over 60 years, a new copyright legislation replacing the Statute of Anne was passed—the English Copyright Act of 1911. And by virtue of an extension order in council of 1912, the Act became applicable in the Southern Protectorate of Nigeria. This remained the law until the Copyright Act of 1970 was enacted—Nigeria’s first indigenous copyright statute.

As Williams and Benda’s works were authored when this Act was in force, the 1911 Act is the applicable law here. On the issue of term, Section 3 of this Act provided that “the term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author and a period of fifty years after his death.” Consequently, depending on whether Williams and Benda assigned their copyright, each creator should enjoy copyright until 50 years after their death.

But wait, doesn’t the Government own the copyright to the National Anthem?
It might be necessary to consider Section 18 of the 1911 Act on Provisions as to government publications as well, particularly in light of the decision of the Ugandan Court of Appeal referred to above. In that case, it was held that copyright vested in the government because the composition was made under the direction and control of the government under section 8(2) of the Ugandan Copyright Act.

Section 18 of the 1911 Act also contains a similar provision on works “prepared or published by or under the direction or control of His Majesty or any Government department” and says that the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work”.

Could Nigeria’s “new” anthem be deemed to have been “prepared or published by or under the direction or control of His Majesty or any Government department”? I don’t think so. The records show that the lyrics and composition were created in response to a competition.

The lyrics

The call for entries for the competition (see below) gave only a vague description of what the anthem should be: “a National Anthem expressing the spirit of a Nigeria that is free and independent among the countries of the world.” Considering this, in my opinion, the government cannot reasonably be deemed to have directed or controlled the resulting works.

The next question which then arises is whether the copyright in these works was subsequently assigned to “His Majesty or a Government department” or the Nigerian government in accordance with and subject to Section 5(2) of the 1911 Act. If this happened, then copyright would belong to the government.

A question which might arise is whether the phrase “[a] prize of $280.00 will be paid for a National Anthem…” may be interpreted as meaning that this was a commissioned work.. In my opinion, this should be interpreted as an invitation to participate in a competition rather than a commissioning. A commissioned work involves a specific agreement between the commissioner and the creator, where the commissioner outlines the desired work and agrees to pay a fee for its creation. This scenario is a competition: the government offered a prize for the winning entry, but they have not commissioned a specific work from any individual participant (see Section 28(3) of the Nigerian Copyright Act for example).

At any rate, if “His Majesty”/the then new Nigerian government was deemed the owner of work in 1959, it would have entered the public domain in 2009—i.e., “fifty years from the date of the first publication of the work.” But if not, copyright would persist until 50 years after the death of the authors as per Section 3, entitling their heirs to income from Nigeria’s national anthem.

The melody
Regarding the melody, a competition was held offering a $2,800 prize. However, the competition notice explicitly stated, "...the Federal Government retains the copyright of the composition selected as the National Anthem."

Despite this express claim to copyright, this statement in the competition notice, without more, does not constitute a valid assignment. To be duly assigned, the composer must execute a contract solely for the purpose of the assignment, or have an assignment clause embedded in the contract between the government and the winning composer. Simply submitting an entry without a separate contract assigning the work to the government, in my opinion, does not constitute an assignment. The competition notice creates an implicit agreement, but the Copyright Act requires an explicit assignment.

Conclusion
Copyright in the new anthem might still be valid depending on the date of death of the authors (under the applicable 1911 Copyright Act). The key question is whether the anthem can be said to have been created "under the direction or control" of the government. I would argue that without definitive proof of copyright assignment to the government, like Odiase, the estates of Williams and Benda may have a valid claim over Nigeria’s anthem (if they died less than 50 years ago). The Nigerian Copyright Commission (NCC) can help determine the copyright status of both the lyrics and music for the anthem. Clarity would ensure it resonates not only culturally, but legally.