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Ten Questions About Internet Governance

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    Inside Views
    Inside Views: An Anthem To Ignorance: South Africa’s Case Of Nkosi Sikelel’ iAfrika

    Published on 20 June 2012 @ 9:33 pm

    Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

    Intellectual Property Watch

    By Prof. Owen Dean

    Summary: The South African national anthem comprises the works Nkosi Sikelela’ iAfrika and Die Stem, which was formerly the national anthem. Nkosi has passed into the public domain and contrary to various claims cannot be used as the basis for royalty claims arising out of its use. The music of Die Stem is however still under copyright but its ownership has reverted from the State to the heirs of the composer in terms of the reversionary interest provisions of the British Imperial Copyright Act and is thus the subject of private ownership. In principle royalties can be charged in respect of its use as part of the current national anthem.

    Articles dealing with Nkosi Sikelel’ iAfrika and claims by various parties that they hold copyright in it and are entitled to claim, and have claimed, royalties for its use and public performance appeared over the weekend of 17 June 2012 in City Press and Rapport, and possibly other newspapers. These articles claimed that, unlike enterprising third parties, the South African Government has missed out on vast sums of money by way of royalties for use of the song such as at major international sports events. With respect, these articles are well wide of the mark and exhibit a woeful ignorance of the law of copyright. They are misleading and have the potential to stir up strong emotions.

    The ignorance of the journalists who wrote the articles is such that they, and possibly journalists in general, would do well to attend the introductory course on intellectual property law which will be offered to non-lawyers jointly by the law faculties of the Universities of Stellenbosch and Cape Town in late July (details of the course can be obtained from the website of the Anton Mostert Chair of Intellectual Property Law). The articles also display less then complete knowledge of the history and background of Nkosi and indeed of the South African national anthem. The Vine Oracle will proceed to rectify these shortcomings in the articles.

    First, a brief lesson in the basics of copyright law. Provided a song or other work is original and has been reduced to a material form, it can enjoy copyright virtually throughout the world without compliance with any formalities whatsoever such as registration. The copyright in a work is regulated in each country by the national copyright laws of that country. A work is “original” for purposes of copyright if it is the product of the author’s own individual effort and expertise. It need not be unique or inventive in any way. As a general rule a work cannot be original if it is a copy of a pre-existing work.

    On the other hand, however, a work can be original even though it embodies the whole or part of an existing work provided the author of the junior work adds something of his own creation to the existing material. The copyright which comes into existence in these circumstances, however, only encompasses the author’s new contribution and creates no rights in respect of the earlier work or pre-existing material. A derivative copyright of this nature can exist even though in making the derivative work the author might infringe an existing copyright. The fact that a derivative work may have its own copyright does not mean that the author of the derivative work can restrain or control the use of the pre-existing material which is not original to him/her.

    Copyright in a work has an existence which is limited in time. The duration of the term of copyright varies from country to country and is determined by a particular country’s domestic copyright law. There are many countries, of which South Africa is one, which confer copyright for a period terminating 50 years after the death of the author of the work, while other countries grant this term for a period of 70 years after the death of the author. Once the term of copyright has expired, a work falls into the public domain and is free for use by all. The erstwhile copyright owner has no claim whatsoever to the right to control the use of a work once it has fallen into the public domain.

    The ownership of copyright can be transferred by the author to another party and thereafter can be transferred to further parties by means of a written document or assignment effecting the transfer of the rights. Generally speaking, once the copyright in a work has been assigned, the former owner or assignor has no further claim to the right in the work.

    There is, however, an exception to this rule caused by an obscure provision of the British Imperial Copyright Act which was made law in the early twentieth century in all countries which were part of the British Empire or realm, including South Africa. This law applied in South Africa for the period 1916 to 1966 and continues to govern the ownership and term of copyright of a work made during those years. This Act provided that, where the author of a work assigns his copyright during his lifetime (and therefore divests himself of those rights), 25 years after his death the ownership of the copyright reverts to the estate of the author, somewhat like a homing pigeon returning to its base.

    It was this provision of our law which enabled the executor of the estate of Solomon Linda to successfully claim infringement of the copyright in the song Mbube/Lion Sleeps Tonight against Walt Disney in a celebrated case a few years ago.

    Complicated Copyright History

    For copyright purposes, a song (or an anthem) consisting of words and music, is a compilation of two separate works, each enjoying its own copyright. The melody of the song constitutes a “musical work” while the words or lyrics of the song constitute a “literary work”. Because each component has its own copyright, the ownership and duration of the copyright in each component work is determined separately by its own circumstances. It is possible for the music and lyrics of a song to have different copyright owners.

    Second, the facts pertaining to the South African national anthem. The current South African national anthem is a composite of three separate segments. The first segment comprises Nkosi Sikelel’ iAfrika with Xhosa/Zulu words, while the second and third components comprise the music of Die Stem with, in the first instance, Afrikaans words, and in the second instance, English words. It dates from 1997 in which year it was officially proclaimed as the single national anthem.

    Nkosi was composed in 1897 by Enoch Sontonga, a South African school teacher. The melody was based on a Welsh hymn entitled Aberystwyth written by Joseph Parry. Sontonga wrote the words of the first stanza in Xhosa and thereafter additional stanzas were added by the poet Samuel Mqhayi. Joseph Parry died in 1903, Enoch Sontonga in 1905 and Samuel Mqhayi in 1945. More than 50 years have passed since the death of all of these authors and this song in its entirety is thus in the public domain and no copyright subsists in it.

    The words of Die Stem were written in 1918 by Cornelis Jakob Langenhoven as a poem. Langenhoven died in July 1932 and the term of copyright in his poem has thus expired and the work is in the public domain. No copyright subsists in it. Langenhoven’s poem was later set to music by Marthinus Lourens de Villiers and the composite work became the South African national anthem in 1928. De Villiers died in May 1977 and the term of copyright in the musical work will thus expire in 2027. The music of Die Stem, as distinct from the lyrics, is thus still the subject of copyright.

    At some stage prior to Langenhoven’s death in 1932, de Villers assigned the copyright in the music of Die Stem to Langenhoven. In June 1957 Langenhoven’s heirs and the administrator of his estate assigned the copyright in both the words and music of Die Stem to the South African government, i.e., The State. For legal technical reasons, this assignment was confirmed by an act of parliament, namely the “Stem van Suid Afrika” Copyright Act, No.2 of 1959. However, notwithstanding these assignments, for the same reasons as applied in the Solomon Linda Lion Sleeps Tonight case, (see Dean OH “Stalking the Sleeping Lion” in De Rebus 2006 16) the copyright in the music of Die Stem reverted to the estate of Marthinus Lourens de Villiers in 2002 and it or its successors in title is/are the current copyright owner.

    The current composite national anthem was compiled by Jean Zaidal-Rudolph, who also wrote the words of the English component of the anthem. Jean Zaidal-Rudolph is still alive and the term of copyright in her works will thus run for at least the next 50 years. It must be appreciated, that the composite work created by Zaidal-Rudolph is an original work and enjoys copyright, but only to the extent of Zaidal-Rudolph’s own contribution, namely the manner in which the separate components inter-relate and merge with each other. However, as far as the English words are concerned, there is a separate literary work enjoying its own copyright in the full extent.

    Zaidal-Rudolph’s copyright does not extend in any way to Nkosi or Die Stem as such and the use of these works individually are unaffected by Zaidal-Rudolph’s copyright. Unless the State has taken some steps to acquire the ownership of the copyright in the composite national anthem from Zaidal-Rudolph, which appears not to be the case, the copyright in it vests in her.

    To sum up, no copyright vests in Nkosi or in the words of Die Stem and they are free for unqualified use by all. The melody of Die Stem, the words of the English component of the current national anthem and the composite of the works embodied in the current national anthem are the subjects of copyright and their use is subject to the permission or licence of the respective copyright owners. In the light of the extremely obscure nature of the provision of our copyright law which vests the copyright in the melody of Die Stem in the estate of Marthinus Lourens de Villiers, it is extremely doubtful whether it is appreciated by anyone, including de Villers’ heirs and the State, that the copyright in this work is owned by private persons who are entitled to charge royalties for its use and public performance as part of the current national anthem.

    In practice, music industry royalties for the use of works covered by copyright are collected by collecting societies, for instance in South Africa, the South African Music Rights Organisation (SAMRO). There is an international network of national collecting societies which operate on a reciprocal basis. A copyright owner who wishes to utilise the services of a collecting society, registers his copyright with his national society. This manner of registration, however, has nothing whatsoever to do with the subsistence and ownership of copyright, which is determined by copyright law, but simply records what is believed to be the facts regarding the ownership of copyright. A copyright owner who does not register with a collecting society is free to collect royalties for the use of his work himself/herself. Consequently, the fact that a particular composer or copyright owner does not register with a collecting society is irrelevant to the ownership of a copyright in a work. New arrangements of existing works can qualify for independent copyright in the limited sense discussed above (namely the new own contribution of the derivative composer is protected) and royalties are only due to such a copyright owner if his/her particular version of the work is used.

    Countering Newspaper Articles

    Against this background, we will comment on the contents of the newspaper articles under discussion.

    The articles suggest that the South African government has somehow lost the plot by not registering The South African national anthem with a collecting society and has in a sense “forfeited” its copyright. In the first place, the South African government does not appear to own the copyright in the national anthem, and in the second place, the lack of registration of the work with a collecting society is irrelevant to the subsistence of copyright and the right of the copyright owner to claim royalties for its use.

    It is stated that some 61 claimants have registered claims to Nkosi Sikelel’ iAfrika and are obtaining royalties for its use. At best such claimants can only claim rights in their particular versions or arrangements of Nkosi (provided they are original) and the use of Nkosi per se does not fall within the ambit of the rights of any such claimants.

    If, for instance, any such claimants were to claim that the inclusion of Nkosi in the South African national anthem impacts upon their rights, such a claim would be totally without any foundation. The Belgian singer, Helmet Lotti, is said to be one of the claimants to rights in Nkosi by virtue of his version of it on his album “Out of Africa”. With respect, Helmet Lotti in the past made spurious claims to rights in various other South African songs, including Tula Baba, and the unfounded nature of his claims and the fact that his use of the songs on that album indeed amounted to copyright infringement, were exposed in a copyright case before the Belgian Court (see; Dean OH “Golden Oldies” in IPStell 2012 available at blogs.sun.ac.za/ipstell).

    In the circumstances, anyone who pays any form of royalties of the use Nkosi to any collecting society or to any person deserves to be ripped off unless he/she is specifically using a particular modern version of the work, which, for the major part, is unlikely.

    It is suggested that it is necessary to apply to the National Herald for permission to use the current South African national anthem. Apart from the fact that, as previously mentioned, the State does not appear to own any rights in the current national anthem, let alone Nkosi, the National Herald has nothing to do with the use of literary/musical works belonging to the State, as distinct from heraldic works such as coats of arms and possibly the national flag.

    It is said that when versions of Nkosi are registered with international collecting societies they become derivative names of the national anthem. This statement seems to confuse the protection of the names, with which copyright law is not concerned, with the protection of literary/musical works. The derivative of a name has absolutely nothing to do with the payment of copyright royalties for use of a work.

    All Registrants’ Claims Invalid?

    The long and the short of it is that no one, including the 61 “registrants” of claims to rights in Nkosi, is entitled to claim any rights in, or royalties from, the use of, Nkosi as a component of the current South African national anthem.

    The only persons who can claim rights in, or royalties in respect of the use of, the current national anthem are the heirs of Marthinus Lourens de Villiers for use of the melody of Die Stem, and Jean Rudolph, for the use of the English words in the national anthem and the use of the anthem as a composite.

    As a question of fact it would appear that none of these copyright owners are exercising any such claims and in the view of the Vine Oracle this is as it should be because the country’s national anthem should be free for use by all, and it would be at variance with public policy for it to be otherwise. For the sake of good order, the South African government should take appropriate steps to acquire the ownership of the copyright in their respective works from the heirs of Marthinus Lourens de Villiers and Jean Rudolph so as to ensure the freedom of use of the national anthem as a national asset.

    Nkosi is not a national cash cow from which the South African government can or ought to derive wealth. Nor does it belong to anyone else. It may be part of our heritage but it is free for use for all. No one, not the South African government nor the 61 pretenders, can monopolise or appropriate it. Long live Nkosi !

    [Note: this article first appeared on Prof. Dean’s blog, here.]


    Owen Dean was appointed as a Professor at the Law Faculty of Stellenbosch University as of 2011, where he is the incumbent of the Anton Mostert Chair of Intellectual Property Law.

    He is a consultant and former senior partner at Spoor and Fisher, intellectual property attorneys, with specialisation in trademark and copyright law with a special emphasis on litigation and opinion work.. He holds a B.A (Law), LL.B and LL.D from the University of Stellenbosch in, respectively, 1964, 1966 and 1989, and was admitted to practice as an attorney in South Africa in 1974, also admitted as an attorney in Namibia and Botswana.

    Dean served on the Government’s Advisory Committee on Intellectual Property Law for 20 years, including as Chairman of the Copyright Sub-Committee. He is a Past President of the South African Institute of Intellectual Property Law. He conceived, and chaired the Drafting Committee of, the Counterfeit Goods Act, and as well conceived and drafted Section 15A of the Merchandise Marks Act (ambush marketing).

    He is author of the “Handbook of South African Copyright Law”, and numerous other publications, serving on editorial boards and publishing in a very wide range of intellectual property publications, and is frequent speaker at events.

    Dean also holds appointments to the Panel of Adjudicators for South African Domain Name Disputes, WIPO Panel of Arbitrators for Domain Name Disputes, Stellenbosch University Business School Panel of Mediators and IP Panel of Arbitration Federation of South Africa (AFSA).

     


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