Who owns copyright in Uganda’s National Anthem?

Between the Ugandan government, which organised a contest for the composition of the national anthem and the late Professor Goerge Kokoma who composed the winning entry adopted as the national anthem, who owns copyright in the Ugandan national anthem?

This is the principal question that the Ugandan Court of Appeal answered in the case of Elizabeth Kokoma vs Attorney General, Civil case no. 50 of 2011 decided in July 2019.

Background
Professor George Kokoma (now deceased) had instituted an action at the High Court of Uganda (the lower court) against the Attorney General (of Uganda) for copyright infringement and royalties over the span of 40 years. Professor Kokoma claimed that as the composer of the national anthem of Uganda, he owned copyright in the said national anthem and that the Ugandan Government owed him royalties for the use of the national anthem since 1962 when it was composed.

The Ugandan flag

In 1962, the Ugandan government advertised an open competition for the composition of the national anthem. Aside from indicating that the winning entry would be adopted as the national anthem and that Shs.2000 would be paid to the composer of the winning entry, no conditions (particularly, no copyright conditions) were indicated on the advertisement. Subsequently, the government selected Professor Kokoma’s composition and adopted it with some amendments. Professor Kokoma was paid Shs2,000 for winning the competition. Professor Kokoma subsequently sought compensation or payment in order to assign copyright in his composition to the Ugandan Government but was unsuccessful. He then instituted an action for copyright infringement, and claimed inter alia, royalties for use of copyright and damages for infringement at the lower court.

The lower court  held that Professor Kokoma was not entitled to the reliefs sought. However, the court awarded the sum of Shs. 50million ($13,000 approximately) to Professor Kokoma as a remedy it deemed “just and fitting in the circumstances” given the value of the composition and the time and effort Professor  Kokoma expended in creating the composition. Dissatisfied with the court's finding that he did not own copyright and with the sum of awarded, Professor Kokoma’s wife, as representative of his estate appealed to the Court of Appeal. The Court of Appeal  reversed the judgment of the lower court and held that Professor Kokoma did not own copyright in the national anthem, rather the Ugandan Government owned copyright because it organised the contest and managed the process of submissions up to the selection and adoption of George Kokoma’s entry as the national anthem. According to the Court of Appeal, such activities meant that the composition was undertaken under the government’s direction or control.

Issues raised on appeal

In her lead judgment, Justice Elizabeth Musoke identified a sole issue for the resolution of the appeal viz: Who owns the intangible property right in the national anthem with the attendant privilege to reproduce same? See page 12. She held that the other issues relating to commissioning of the composition and/or assignment of copyright in the composition would amount to an academic exercise given that the Ugandan Government owned copyright in the composition. [Pages 14 and 15 of the judgment.]

To resolve this issue, the court considered section 2 (definition of author to include a person who commissioned the creation of a work), section 4 (originality, fixability and absence of formality for protection), section 5 (categories of protected works including musical works) and section 8 (ownership of copyright in a work made under employment, commissioned by another or made under the direction or control of the Government) of the Copyright and Neighbouring Rights Act 2006. See page 12-13

The Court noted that the subject of the appeal involved the government and therefore particularly considered section 8(2) of the Ugandan Copyright Act. The Court observed that the Act did not define what it meant to create a work under the “direction or control” of government. However, using the dictionary definition, it held that control and direction respectively meant restricting/limiting/managing something and the art of managing or guiding something or someone. See page 14. The Court went on to hold that by initiating the idea of the contest for the composition of the national anthem; managing the entire process and making amendments to the appellant’s submission and having the power to decide whether or not to adopt the appellant’s composition as the national anthem, the Government “directed” and “controlled” the composition of the work. [Page 14]. And, by virtue of section 8(2) of the Act, the Government owned copyright in the work.

The court further held that by virtue of section 13 of the Copyright Act, the copyright in the work (i.e. national anthem) expired in 2012 having belonged to the government for 50 years since 1962, when it was published. Section 13 of the Copyright Act stipulates that the duration of copyright held by the government is 50 years. The court also held that the award of Shs50million made by the court of first instance had no legal basis and therefore, set it aside. [See pages 15 and 16].

Comments
The Court of Appeal rightly identified that the resolution of the appeal hinged on the determination of the person who owned copyright in the composition. Further, given that section 8 of the Copyright Act deals with copyright involving the government, the court rightly relied on that section as a basis for its judgment. However, in holding that copyright vested in the Government because the composition was made under the direction and control of the government under section 8(2), the Court of Appeal did not consider the purport of section 8(3) of the Act.

The vesting of copyright in the employer under section 8(1)(a), the commissioner of a work under section 8(1)(b) or the government under section 8(2) is dependent on the condition in section 8(3). Section 8(3) provides that:

“Vesting of copyright referred to in (1) and (2) above shall apply only to work created within the stipulated schedule of work of an employee.”

It is opined that even where a work is made under the direction and control of the government, vesting of copyright in such work upon the government requires the establishment of some employment nexus between the government and the creator of such work. Such employment nexus does not exist in this case. In the view of this Africa Correspondent, the government need not own copyright in the national anthem in order to use it in this instance and serve the interests of Ugandan citizens. Given that the advert for the contest clearly stated that the winning entry will be adopted and used as the national anthem and the winner would be given the prize of Shs.2000, it is argued that there was an implied (express licence, even) license to use the work as the national anthem with the attendant activities inherent in such use. Otherwise, it may mean that based on this decision, copyright in “contest-created” works would be construed as made under the direction and control of the person who organised the contest. In this era of artists and fan engagement through social media contests, the judgement herein may provide a basis for arguing that copyright in the submissions of entrants would vest in the artist or organiser of the contest (in the absence of an agreement to the contrary). That would be tough.

What do readers think?

P.S. - Africa Correspondent is grateful to Phillip Karugaba for obliging me with a copy of the judgment of the (Ugandan) Court of Appeal discussed here.