This is a call for help. I would like suggestions as to what should, and should not, be in a National Anthem Bill – either in the comments below, via the contact form on this blog, by email, on a postcard, or even by means of carrier pigeon (or messenger raven) …
In four recent posts (here, here, here, and here) I’ve been looking at various issues around the national anthem. The context has been Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016, but the analysis has ranged much more widely than that. And it has become clear to me that there are lots of gaps in the story of our national anthem. Some of those gaps could be filled by legislation, and so I am trying to work out what that legislation might provide.
I am conscious that, to a man with a hammer, every problem looks like a nail; and to a lawyer, every problem looks like it can be solved with legislation. A hammer isn’t always the solution to DIY problems, and legislation isn’t always the solution to social problems. So, I want to identify not only the issues around the anthem that could admit of a legislative solution, but also the issues where legislation would be unsuitable or ill-advised. Hence my call for suggestions as to what should, and should not, be in a National Anthem Bill.
I agree with Senator Daly that the anthem should be treated with respect and dignity, and that legislation could protect it from inappropriate commercialization, but I do not think that copyright is a suitable means to this end. In a previous post, I commented that if legislation is to be used for this purpose, then it should set out exactly what is protected, what that protection means, and what the standards of protection are. Hence, rather than just criticizing, I would like to be able to offer an alternative solution that respects the national anthem, and protects it from inappropriate commercialization, but without going too far.
Having regard other countries provide in legislation about their national anthems, I think the first thing that an Irish Bill could do is provide a clear definition of the national anthem. You’d think that the answer to the question “what is the national anthem?” would be a simple one. You’d be wrong. It’s actually quite complicated. The chorus of “The Solider’s Song” (composed 1907; words in English by Peadar Kearney (1883-1942); music by Patrick Heeney (1881-1911)) was formally adopted to very little fanfare as the national anthem in 1926. By the end of the 1930s, the chorus of the Irish language translation “Amhrán na bhFiann” (words by Liam Ó Rinn (1886-1943), set to the Heeney’s music) had completely taken over as the national anthem in popular usage, though it has never been formally adopted by the State. Although the flag is provided for in Article 7 of the Constitution, there is no constitutional, or even statutory, definition of the national anthem. We have no clear official statement that the anthem in common practice is indeed our national anthem. This is an unnecessarily messy status for the anthem, and the first significant section of a National Anthem Bill should regularise this position. Canada provides an excellent example here. Their National Anthem Act, 1985 is a short Act that provides simply that the music, and French and English words, of the song “O Canada”, as set out in a schedule to the Act, “are designated as the national anthem of Canada”. In Ireland, a National Anthem Bill could do the same thing, for Heeney’s music, Ó Rinn’s words in Irish, and Kearney’s words in English.
(For my own part, I would not make any changes to the music or words of the anthem; but, if it is thought that some changes should be made, then they could be incorporated into the versions in the Schedule. In my view, it would be sufficient if the the sheet music (pdf) currently available on the Taoiseach’s website (with the dates for Liam Ó Rinn corrected to read “1886-1943”) were to be reproduced in the Schedule).
Once the national anthem is placed on a formal statutory footing, the Bill could also contain a general statement it should be treated and performed with respect and dignity. This would meet one of Senator Daly’s concerns. However, this section should not be overly prescriptive. Indeed, in my view, this kind of section should be no more than a general encouragement. For example, in India, the Ministry of Home Affairs provides (pdf) that it is “left to the good sense of the people” not to indulge in indiscriminate performances of the Anthem. Again, in the US, directions about saluting and standing to attention are provided in legislation (36 US Code § 301). But these directions are guidelines, stated in precatory or exhortatory – rather than prescriptive or binding – terms (“should … stand at attention”, rather than “shall” do so). Moreover, to emphasise the exhortatory non-prescriptive nature of any such provision, the lead of section 42(11) of the Irish Human Rights and Equality Commission Act 2014 could be followed, to prescribe that the section does not give rise to legal obligations.
Senator Daly’s key concern is to protect the national anthem from inappropriate uses. However, his Bill is very terse. It simply asserts copyright for the State, and effectively leaves it in practice to an official in a government department to make judgment calls as to what would be appropriate and what would not, and thus to give copyright permission to appropriate uses and refuse copyright permission for inappropriate uses, without providing guidance as to what constitutes appropriate or inappropriate uses. This is not what copyright is for. Moreover, a Bill should provide far greater precision and much clearer guidance on such crucial matters. Senator Daly’s core example of an inappropriate use of the anthem is a commercial advertisement. For my own part, I have no problem with the advertisement in question. But if adddressing the use of the anthem in commercial advertising is the issue with which Senator Daly wishes to grapple, then that should be addressed directly and explicitly in its own terms, and not indirectly and obliquely by means of copyright. Indeed, it would not be impossible to draft a provision addressing the use of the anthem in commercial advertising. For example, section 41 of the Broadcasting Act 2009 already provides restrictions upon the broadcast of religious and political advertising. (Indeed, if that lead is followed, then any restrictions the use of the anthem in commercial advertising is likely to survive constitutional challenge for same reasons that reasons restrictions upon religious and political advertising survived challenges in Murphy v IRTC  1 IR 26,  2 ILRM 360; Colgan v IRTC  2 IR 490,  1 ILRM 22,  IEHC 117 (20 July 1998); Murphy v Ireland 44179/98 (2003) 38 EHRR 212,  ECHR 352 (10 July 2003); Animal Defenders International v UK 48876/08 (2013) 57 EHRR 21,  ECHR 362 (22 April 2013)).
Senator Daly presents the use of the anthem in commercial advertising as the core example of commercial misuse of the anthem, but, in his radio interviews, he plainly considers that other commercial misuses should also be addressed. A National Anthem Bill should therefore seek to draw the line between appropriate non-commercial and inappropriate commercial uses of anthem. Again, the issue should not be left to the judgment call of an official in a government department; the Bill should provide as precision and guidance as possible on such a crucial matter. These are not necessarily easy lines to draw, but the alternative is to cast the net too widely, which is what Senator Daly’s current draft does. It seems to me that, on the commercial side of the line are commercial recordings, broadcasts, and performances of the anthem, and that, on the non-commercial side of the line are charitable, educational, personal, private or religious uses of the anthem. It also seems to me that distinction could form the foundation of the statutory line between appropriate non-commercial and inappropriate commercial uses of anthem.
Whether it comes to commercial advertising or other commercial usages, once the lines are drawn and the necessary definitions provided in the legislation, I wouldn’t ban them outright; instead, I’d provide that such matters would require the consent of the Minister – permission to use the anthem has in the past been a matter for the Department of Finance, though some thought might be given to whether it should in the future be a matter for the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs. It may be that the former practice in the Department of Finance could add to the definitions emerging here, so the Bill could provide that the relevant Minister could make secondary legislation giving further content to the commercial advertising or other commercial usages that would require the Minister’s consent.
Finally, whilst most uses of the anthem would fall on the non-commercial and thus permitted side of the line, in the case of those advertising or commercial uses that would require Ministerial consent, I think some thought might be given to establishing scales of charges to be levied in consideration of any consent granted by the Minister. This would be a departure from the former practice that performance fees were not charged or collected for permitted uses of the anthem; but, on the criteria emerging here, the vast vast majority of usages would not need the consent of the Minister, and therefore would not be subject to the possibility of such charges. It is only in respect of advertising, and commercial public performances, that consent would be necessary. Even then, where consent is granted, a charge need not be levied. Furthermore, if a charge is indeed levied, it doesn’t have to disappear into the maw of the Department of Finance. For example, in 1929, the author JM Barrie had donated his copyright in his play “Peter Pan” to the Hospital for Sick Children, Great Ormond Street, London. When that lapsed after his death, copyright legislation was amended to provide that the hospital would still be entitled to a royalty payment in respect of the public performance, commercial publication or communication to the public of the play (indeed, a National Anthem Bill could build upon this formula to define the commercial uses that would need the consent of the Minister, subject to a charge). By analogy, any charges paid for use of the national anthem could also go to good causes, and one way to do so in the Bill would be to provide that such charges should be disbursed as if it were National Lottery funding.
So, in sum, what should, and should not, be in a National Anthem Bill?
In Northern Ireland, the Minister for Finance has just published a Review of the Law of Defamation, prepared for it by Andrew Scott (Associate Professor of Law, LSE). Prof Scott had prepared a consultation paper for the Northern Ireland Law Commission (NILC) in November 2014. The consultation period closed on 20 February 2015. The NILC itself closed on 31 March 2015. So Prof Scott’s final Report (pdf) was submitted directly to the Ministry for Finance, which has just published it. The Report builds on the work of the NILC, draws on the consultation responses that it received, assesses the recent experience of the law of defamation in England and Wales under the Defamation Act 2013, and sets out recommendations for reform of the law of defamation in Northern Ireland. Most of the recommendations require legislation by the Northern Ireland Assembly, so a Bill to this effect is included as Appendix 1 to the Report. A second draft Bill that would merely emulate the 2013 Act in Northern Irish law is included as Appendix 2.
The Report recommends that, to a significant extent, measures equivalent to the provisions of the 2013 Act should be introduced into Northern Irish law. However, one of the substantial changes from the 2013 Act relates to the proposed new defence of honest opinion. In section 3 of the 2013 Act, the defence of honest opinion is as follows:
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—(a) any fact which existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the statement complained of. …
The Report recommends that a drafting error be corrected, and that the section should be substantively amended in two further ways
- it should be possible for a publisher to rely not only on true underpinning facts or privileged statements as the basis for his or her opinion, but also on “facts” that he or she “reasonably believed to be true at the time the opinion was published”. This expands the defence, especially so as to defend the position of social media commentators …
- it is recommended that it be made clear that the defence extends to cover “inferences of verifiable fact”. This is intended to clarify an aspect of the defence that is agreed to be the current law by many legal commentators, but on which there remains a measure of uncertainty in English law …
In Ireland, section 20 of the Defamation Act, 2009 introduced a similar defence of honest opinion, but required that the opinion relate to a matter of public interest (section 20(2)(c)). Given that there is a public interest defence elsewhere in the 2009 and 2013 Acts, there is no need for a public interest requirement in the defence of honest opinion. The Irish section should be amended to come into line at least with the 2013 Act, if not with the NI proposals. Their publication today is very welcome indeed, and Prof Murray is to be commended for his excellent Report. The Irish Act is in need of revision, but none is envisaged in the Government’s Legislation Programme (pdf). Nevertheless, a review of the operation of the 2009 Act is due, and it is to be hoped that the English experience of the 2013 Act and the Northern Ireland Report will be taken into account – in particular, to make the defence of honest opinion workable.
My last three posts (here, here, here) have looked at some copyright issues around the national anthem. Their immediate context was Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016 (effectively reviving a Bill that he had introduced into the last Seanad earlier in the year). To provide a little lighter reading on the topic, here are 4 sets of bonus links about the copyright, the anthem, or both.
Bonus 1: Alex Marshall (blog | twitter), author of Republic or Death!: Travels in Search of National Anthems (Penguin | Amazon), writing in the Irish Times (h/t Alex’s blog), put “The Soldier’s Song” into the context of other national anthems. It’s a very entertaining piece. While he bemoans the relative obscurity of Peader Kearney and Patrick Heeney, he consigns Liam Ó Rinn to oblivion – he finishes the piece with the first line of “Amhrán na bhFiann”, but he doesn’t name-check Ó Rinn at all!
Bonus 2: I was on the the Marian Finucane show on RTE Radio 1 the Sunday morning before last (listen here), on The Last Word with Matt Cooper on TodayFM the following Monday evening (listen here), and on the Shaun Doherty Show on Highland Radio the following Wednesday morning (listen here until the end of the week). On the latter two shows, it was just the presenter, Senator Daly, and myself, However, on the Marian Finucane show, as Marian was on holiday, the show was hosted by Brendan O’Connor; the others on the panel in the studio were Philip McCabe (Director, MABS), Brian Hayes (Fine Gael MEP for Dublin) and Sinead O’Carroll (News Editor, theJournal.ie); and we were joined on the phone by Senator Daly (listen here). At the end of the discussion on the National Anthem, we were joined by Stuart Clark (Deputy Editor, Hot Press) and writer & journalist Sinéad Gleeson, to discuss the UK’s 60 official biggest selling albums of all the last 60 years (listen here).
The discussion covered not only what makes it on to such a list (greatest hits, recent releases) but what doesn’t (almost any musically influential pop or rock album ever), and some of the copyright stories behind the albums. It seems you can’t have a high-profile song these days without its accompanying copyright suit, whether it’s “Happy Birthday” being held to be out of copyright, to Robin Thicke and Pharrell Williams’s “Blurred Lines” being held by a jury to have infringed copyright in Marvin Gaye’s “Got to Give It Up”, or Led Zeppelin’s “Stairway to Heaven” being held by a jury not to have infringed copyright in Spirit’s “Taurus”. As to copyright stories from the albums on the list, Number 2 is Abba “Gold – Greatest Hits”, which includes “Chiquitita”, from which Abba shared the copyright and thus royalties with UNICEF. Number 3 is the Beatles’ “Sgt Pepper’s Lonely Hearts Club Band”, some of the most lucrative US copyrights in which are owned by Michael Jackson’s estate, as Jackson outbid Paul McCartney in 1985, though McCartney is now working on various means of getting them back.
However, probably the two most famous pop music copyright infringements of all time feature on that top 60. At number 10 is Queen’s “Greatest Hits, Vol 2”, which includes Queen/Bowie’s “Under Pressure”, copyright in which was infringed by Vanilla Ice in “Ice Ice Baby”. The case settled out of court, but Mercury and Bowie now have writing credits on (and therefore get royalties from) “Ice Ice Baby”. At number 18 is the Verve “Urban Hymns”, which includes “Bittersweet Symphony”, which infringed the copyright in the Rolling Stones’ “The Last Time”. Again, the case settled out of court; but the writing credits for “Bittersweet Symphony” are now “Jagger/Richards/Ashcroft”; and all of the royalties go to the music company that owns the rights to “The Last Time”.
Bonus 3: There’s a Trinity connection with the anthem. For many years, the most familiar version was probably the orchestral arrangement used by the national television station, RTÉ, at the close of transmission each day. It was composed in 1961 for the launch of RTÉ’s television service by Brian Boydell (1917-2000), Professor of Music at Trinity; this is the version that was in use from 1961; this is a version that was used during Easter Week 1966; and this was the last closedown version:
Bonus 4: Here’s a 25-minute documentary on the anthem, produced by One Productions for the national Irish language television channel TG4. It is mostly in Irish with English subtitles, though some of the contributions are in English:
A national anthem is a hymn or song expressing patriotic sentiment, from prayers for a monarch, to allusions to nationally important uprisings, to expressions of national feeling. It is usually recognised by a nation’s government as the official national song, though it often emerges by convention through use by the people. “Kimigayo” is the Japanese national anthem, and its lyrics are the oldest text of a national anthem in the world, dating from an anonymous ninth century poem (though the anthem was not formally legislatively established until 1999). The oldest musical setting of an anthem still in use is the “Wilhelmus“, the Dutch national anthem (an early version of which is pictured above left). It was written between 1568 and 1572 during the Dutch Revolt against Spanish rule; and, although it was the de facto Dutch anthem for almost four centuries thereafter, it was only officially adopted in 1932.
Given their antiquity, there can be no copyright issues with the Japanese or Dutch anthems. The Irish national anthem, on the other hand, is a different story. In my previous two posts (here and here), I sought to unravel the fascinating but tangled story of its copyright, some of which I discussed on the Marian Finucane show on RTE Radio 1 last Sunday morning (listen here) and on The Last Word with Matt Cooper on TodayFM on Monday evening (listen here). The immediate context of those discussions was Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016 (effectively reviving a Bill that he had introduced into the last Seanad earlier in the year).
The chorus of “The Solider’s Song” (composed in 1907; words by Peadar Kearney (1883-1942); music by Patrick Heeney (1881-1911)) was formally adopted as the national anthem in 1926. By the end of the 1930s, the chorus of the Irish language translation “Amhrán na bhFiann” (words by Liam Ó Rinn (1886-1943), set to the Heeney’s music) eclipsed the English language version, and has now completely taken over as the national anthem in popular usage, though it seems never to have been formally adopted by the State. In my previous two posts (here and here), I explored the copyright history of all these versions of the anthem. The stories are tangled, but the position is now quite clear. After two deals – in 1933 and 1965 – the State owned the copyright in the music and English language version (“The Soldier’s Song”) of the national anthem, and this copyright persisted until 1 January 2013. If, as seems likely, Ó Rinn was an employee of the State when he composed “Amhrán na bhFiann”, then the State owned copyright in it until 1 January 1974. If, however, Ó Rinn was not an employee of the State at that stage, then his copyright in it will have persisted until 1 January 2014. Hence, all copyrights in the national anthem have now come to an end. Senator Daly’s Bill would revive at least some of them; and, in this post, I want to explain why I think that this is a thoroughly bad idea. Read more
Copyright and the National Anthem; unravelling a tangled past, avoiding a gap of danger – II – Amhrán na bhFiannMost states have national anthems. Just as states come in all shapes and sizes, so there is a great variety in anthems. Some (such as Spain) have no words at all; others, (in states with multiple national languages, such as South Africa) are multi-lingual.
Given that Article 8 of the Irish Constitution provides that the Irish language is the first official language of the State, and that the English language is recognised as a second official language, it is unsurprising that the national anthem comes in both official languages. However, the story of the emergence of both versions is not straightforward. In my previous post, I discussed “The Soldier’s Song”, the music and English language version of the national anthem. In this post, I want to discuss “Amhrán na bhFiann”, the Irish language version of the anthem. The stories are fascinating but tangled; and, as I said in my previous post, I discussed some of them on the Marian Finucane show on RTE Radio 1 last Sunday morning (listen here). Since then, I was also The Last Word with Matt Cooper on TodayFM yesterday evening (listen here). In both cases, I was discussing Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) Bill 2016 (reviving a Bill that he had introduced into the last Seanad earlier in the year).
By way of background to a detailed discussion of Senator Daly’s Bill in my next post, I discussed in my previous post some of the copyright issues that have arisen relating to the music and English language version of the national anthem. The chorus of “The Soldier’s Song” was adopted as the national anthem in 1926. Following deals in 1933 and 1965, the State owned the copyrights in the music and the English language version of the anthem. These copyrights persisted until 1 January 2013, when they lapsed by effluxion of time in the usual way. However, the English language version quickly lost out to “Amhrán na bhFiann“, the Irish language version of the anthem, which is now almost invariably sung instead, even though there seems to be no government decision formally approving this practice. And the copyright issues relating to “Amhrán na bhFiann” are just as knotty as those relating to “The Soldier’s Song”.
“Amhrán na bhFiann” was composed by Liam Ó Rinn (pictured above left) – probably in 1923 – as a fairly free translation of Kearney’s English language text of “The Soldier’s Song”, and the versions in both languages are sung to Heeney’s tune. Read more
Copyright and the National Anthem; unravelling a tangled past, avoiding a gap of danger – I – The Soldier’s Song
I was on the Marian Finucane show on RTE Radio 1 yesterday morning (listen here), discussing copyright in the National Anthem. The immediate context of the discussion was Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) Bill 2016 (reviving a Bill that he had introduced into the last Seanad earlier in the year). The story of the copyright in the national anthem is a fascinating one, with many legal twists and turns, which I will discuss in this post and the next (update: this post and the next were originally one post; but I have divided that post into two; in this post I discuss the copyright issues around the music and the English language version of the words of the anthem; in the next post, I will discuss the issues around the Irish language version). Once I have brought that story of these various versions of the anthem up to date, I will discuss the possible impact of Senator Daly’s Bill in a further post.
Working together in 1907, the music of the national anthem was composed by Patrick Heeney (1881-1911) and the English lyrics of “The Soldier’s Song” were composed by Peadar Kearney (1883-1942) [His first draft, written on copybook paper, sold at auction in 2006 for €760,000]. The text was first published in 1912; it quickly became a popular marching song among the Irish Volunteers; and it was sung by the rebels in the General Post Office during the 1916 Rising and later in the internment camps. The chorus was formally adopted as the rational anthem in 1926; as Ruth Sherry explains (with added links):
… a simple decision was made by the Executive Council to adopt “The Soldier’s Song” as the national anthem for all purposes. The reasons for choosing this rather than another air are not recorded, but it seems likely that by this point “The Soldier’s Song” had become so firmly established by custom that replacing it would prove difficult, and William Cosgrave is on record as wanting to retain it. The decision was not accompanied by any publicity, and was announced only by means of a brief answer to a backbencher’s question in the Dáil on 20 July 1926.
The Irish language version, “Amhrán na bhFiann“, was composed by Liam Ó Rinn in 1923 as a fairly free translation of Kearney’s English language text of “The Soldier’s Song”. This version gradually eclipsed the English language version; and, from the end of the 1930s, the chorus of “Amhrán na bhFiann” eventually took over completely as the national anthem in popular usage, though it seems never to have been formally adopted by the State. I will return to this version in my next post.
Unlike the flag, the national anthem is not provided for in the Constitution adopted in 1937. Read more
Privacy in the Digital Age – Is it Time for a New Paradigm?
in the Trinity Long Room Hub, next Wednesday, 13 July 2016, from 3:00pm to 5:00pm.
A recent discussion in the Seanad suggests that a copyright reform Bill will be brought to government very soon. The discussion focussed on the need for efficient enforcement of IP rights in Irish courts, but it was placed in the broader context of copyright reform in general, and the Minister for Jobs, Enterprise and Innovation promised to bring a full package of copyright reform proposals to Government “before the summer recess”. That is due at the end of this week, which means that the copyright reform Bill would have to have been considered by the Government at today’s meeting. But there is nothing on the websites of the Department of the Taoiseach or the Department of Jobs, Enterprise and Innovation to suggest that it was discussed or approved today. Nevertheless, the discussion in the Seanad is suggestive that we will see the government’s reform proposals very soon. Copyright reform is yet another step closer. I greatly look forward to its arrival.
The discussion arose from the following question posed by Senator Ivana Bacik on the Commencement of the Seanad on Wednesday, 29 June 2016:
The need for the Minister for Jobs, Enterprise and Innovation to inform the House when she proposes to implement the recommendation of the Copyright Review Committee in its report Modernising Copyright, published in October 2013, concerning the extension of the small claims procedure in the District Court to include intellectual property claims up to the value of €15,000, as provided for within the draft Statutory Instrument prepared by the Committee.