Copyright and the National Anthem – preventing a tangled future, avoiding another gap of danger

Wilhelmus, via WikipediaA 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. The key provision of Senator Daly’s Bill provides:

… copyright regarding —

(a) the English lyrics of Amhrán na bhFiann (A Soldier’s Song) authored by Peadar Kearney, and
(b) the music of Amhrán na bhFiann (A Soldier’s Song) composed by Patrick Heeney,

is deemed always to have subsisted, and is hereby vested, for an indefinite period, in the State.

His justification is that holding this copyright allows the state to protect the national anthem from being used in an inappropriate fashion, and will ensure that the integrity of the anthem is maintained. This echoes a point made by his party colleague Brian Cowen, who, as Minister for Finance, told the Dáil on 8 November 2005 that the principal reasons for holding copyright in the national anthem “are to ensure that it is freely available, to prescribe that performance fees are not to be charged or collected in respect of the use of the national anthem, and to ensure that it is not used in an inappropriate context and without due deference, such as to render it an object of scorn or derision”. A later Minister for Finance, Michael Noonan TD, made an identical comment in the Dáil on 3 May 2011.

I have four problems with all of this. First, the scope of this provision is misconceived. Second, it is a misuse of copyright. Third, this is censorship masquerading as copyright. And, fourth, EU law probably prevents it.

My first problem with Senator Daly’s Bill is that its scope is misconceived: it claims both too much and too little. It claims too much, in that it claims copyright in the full text of the music and English lyrics, whereas the national anthem is just the chorus. (It also claims too much when it deems that copyright in the anthem has always subsisted in the State, when this is plainly not the case.) And it claims too little, in that it claims only the music and the English lyrics of “The Soldier’s Song”, and not the Irish version “Amhrán na bhFiann”, which after all is the version in widespread – if not exclusive – use. (It also seems to assume that the “The Soldier’s Song” and “Amhrán na bhFiann” are the same thing, and that English text is a translation of the Irish, when this is plainly not the case). I think the problem here is that the draft is too brief for the work it is trying to do. In statutory drafting, as in prose, brevity is the soul of good writing. I am a big fan of Occam’s Razor, especially in the variant that provides that “everything should be kept as simple as possible, but no simpler”. The first half of the principle (keep it simple) is why it is usually cited; but, in my view, the second half of the principle – emphasised here – is just as important. In its zeal to heed the first half of the principle, Senator Daly’s draft went too far in the other direction, and failed to heed the second half of the principle. For these reasons, in my view, Senator Daly’s draft Bill is misconceived in its own terms.

My second problem with Senator Daly’s Bill is that, even if it were better drafted, it would still be a misuse of copyright. Preventing inappropriate use of the anthem (or, indeed, of any other work) is not what copyright is for. The function of copyright is twofold. First, it incentivises and rewards the production of works, by affording copyright rights-holders legal protection for, and revenue from, the fruits of their labours. The restrictions which copyright rights-holders can impose on copying, publishing, or adapting their works effectively mean that they can be paid to allow such uses. Second, society also benefits by the creation of work of potential economic value or cultural significance, both at the time of the creation of the work, and later when it falls out of copyright and forms part of the cultural heritage from which further authors musicians and so on can draw in the creation of new works. Works that are no longer covered by copyright are instead in the public domain, and are fully available to be used, enjoyed, shared and built upon by all, for any purpose whatsoever, without having to seek permission or pay royalties. A robust public domain is an essential precondition for cultural, social and economic development and for a healthy democratic process. The wealth of information out of copyright and in the public domain is a critical component of our heritage, and provides the building blocks for cultural development and the creation of new knowledge. The freedom to use material when it eventually comes into the public domain is the necessary corollary of the restrictions on use which apply while the material is covered by copyright. This balance – protect the work now, free it for use later – is the grand bargain at the heart of copyright, and you can’t have one without the other.

The music, and lyrics in both languages, of the national anthem have had their time in copyright. The 1933 and 1965 settlements in respect of Heeney and Kearney, and Ó Rinn’s employment by the State, mean that they and their estates have had their rewards – and this achieves the first function of copyright. Society has benefitted from their composition of the words and music of “The Soldier’s Song” and “Amhrán na bhFiann”; and now that they are out of copyright, society can further benefit by the production of new cultural works – and this achieves the second function of copyright. Seeking to bring the music and lyrics of “The Soldier’s Song” back into copyright meets neither of these functions. Worse, seeking to take them out of the public domain subverts the “protect now, use later” balance at the heart of modern copyright law. The national anthem is now in the public domain and free for everyone to use, precisely because it was protected by copyright for so long. Now that it is in the public domain, we might not like what some people do with it, but that is the necessary consequence of the public domain and is the price we pay for copyright protection in the first place. Taking the national anthem out of the public domain and putting it back into copyright (for reasons that have nothing to do with copyright) will create a gap of danger in our cultural heritage. (The “gap of danger” is the “bearna baoil” which appears in both versions of the anthem; it is the only phrase in Irish in “The Soldier’s Song”, and it is repeated verbatim in “Amhrán na bhFiann).

We may not like Meltybrainscharity ambient version of “Amhrán na bhFiann”. It might in time come to be bracketed with the Sex Pistols’ reworking of “God Save the Queen” or Jimi Hendrix’s Woodstock performance of “The Star Spangled Banner”, though I doubt it. The fact that the national anthem is now in the public domain means that precisely this kind of experimentation is possible, and that is a good thing in principle, whether or not we like the result. And the same is true of Paul Galvin’s clothing collection for Dunnes Stores, which has been advertised with him declaiming the words of the first verse of “The Soldier’s Song”. He was a far better footballer (as a Kerryman, I declare my interest here; and I’m sure that my fellow Kerryman Senator Daly would too) than he is an interpreter of lyrics, but the fact that “The Soldier’s Song” is out of copyright means that he can go right ahead and join William Shatner, Jack Nicholson and Richard Harris in the pantheon of the great spoken-lyric-manglers of our time. For these reasons, in my view, Senator Daly’s draft Bill is a misuse of copyright: it does not meet any of the functions of copyright, and it undercuts the public domain, in both case subverting the protection/use balance on which modern copyright law depends.

As by Dr Seán Ryan TD, Minister for Finance, explained in the Dáil on 2 March 1965, the intention in making the 1933 and 1965 deals “was to free the Anthem of vested interests and make it freely available for performance”. This was re-iterated by Michael Noonan TD, Minister for Finance, in the Dáil on 7 June 2011, in advance of the expiry of copyright in the music and English language version of the anthem:

Copyright protection in relation to the National Anthem will run out in December 2012. The main purpose of ownership by the State of the copyright to the original version of the National Anthem was to ensure that it was freely available for general use. This situation will remain unchanged on the expiry of the copyright.

My third problem with Senator Daly’s Bill is that it is censorship masquerading as copyright. Censorship is an ugly word for an ugly concept; it is the suppression or prohibition of speech that a government considers unacceptable. Sometimes, it is overt and justifiable (though still ugly), as where the Offences Against the State Act, 1939 prohibits sedition on the grounds of national security. Sometimes, it is covert and unjustifiable (and even uglier), as where vague and expansive prohibitions against begging in the Vagrancy (Ireland) Act, 1847 were held to be a disproportionate infringement of the constitution’s free speech guarantees.

The effect of Senator Daly’s Bill is censorship (I’m with Éibhear Ó hAnluain on this), since its aim is to restrict “inappropriate” uses of the national anthem. This censorship is covert, since (not for the first time) it is hidden behind copyright. And it is all the more unjustifiable, since the grounds for this censorship – to prevent “inappropriate” uses of the anthem – do not appear anywhere in the overly-brief text of Senator Daly’s Bill. Worse, even if it were to be added to the Bill, “inappropriateness” would not pass constitutional muster. For state restrictions upon a right (such as freedom of expression) to be constitutionally valid, they must be based on a good justification and infringe the right as little as possible. “Inappropriateness” fails this test; it is vague and subjective in character, and intrinsically lends itself to arbitrary and inconsistent application. In the radio interviews, Senator Daly backed away from the “inappropriateness” standard, and objected instead to commercial usages of the anthem. On RTÉ, he seemed to accept that Meltybrains’ version of “Amhrán na bhFiann” is acceptable; but in both interviews, he insisted that Paul Galvin’s use of the first verse of “The Soldier’s Song” is unacceptable (even though this is not the national anthem, which is only the chorus of the song). But they are both commercial usages; Meltybrains want to make money for charity by selling their recording, just as much as Galvin wants to make money by selling his clothing range. If Senator Daly cannot articulate a clear and consistent standard on which to decide what usages are acceptable and what aren’t, then his attempts to censor usages of the national anthem by means of copyright would be unconstitutional. In the end, there is no getting away from the fact that legislation affording the State the power to choose which speech it will favour and which it will ban is censorship, even if it is dressed up in the guise of copyright.

My fourth problem with Senator Daly’s Bill is that it is incompatible with EU law. The 1993 and 2006 Directives relating to the term of copyright protection provide that copyright “shall run for the life of the author and for 70 years after his death”. That “shall” is mandatory. It means that the copyright term must run for the life of the author plus 70 years; it means that it cannot be less than that (such as the previous Irish position, which was for the life of the author plus 50 years, and which had to be changed to come into line with these Directives); and it means that it cannot be more than that, as suggested by Senator Daly. As I read these Directives, they do not permit of any exceptions for works such as the national anthem.

In the radio interviews, Senator Daly argued that other countries – such as Australia, Canada and New Zealand – have extended copyright to protect their national anthems. This is almost the case for Australia, but not at all the case for Canada or New Zealand. On the one hand, in Canada, section 3 of the National Anthem Act 1985 provides that the words (in both English and French) and music of the national anthem (“O Canada“) are in the public domain. This means that they are not covered by copyright at all. The only recent amendment to the Act renders the English language version more gender neutral. However, culturally, the anthem is held in such high esteem that any meddling with it does not prosper. In New Zealand, the words of “God Defend New Zealand” were written as a poem in 1876 by (Irish-born) New Zealand poet, politician and journalist Thomas Bracken (1841-1898); and, following a competition, the music was composed later that year by John Joseph Woods (1849-1934). A Maori language version was produced two years later, as a fairly free translation of the English text. These dates mean that the original words (in both English and Maori) and music are now in the public domain. It was proclaimed the second national anthem (with “God Save the Queen”) on 17 November 1977 (pdf). The Protocol section of the website of Manatu Taonga, the New Zealand Ministry for Culture and Heritage, notes that there is no copyright restriction in relation to the use of the national anthem. (Like Ireland, the anthems in both Canada and New Zealand are in two languages).

On the other hand, in Australia, the words and music of “Advance Australia Fair” were written in 1878 by Peter Dodds McCormick (1834-1916). Again, these dates mean that the original words and music are now in the public domain. However, following a referendum in 1977, with some modifications to McCormick’s text, it was proclaimed Australia’s national anthem on 19 April 1984. These modifications allow Australia to claim copyright in the words of the anthem as proclaimed, and it also holds copyright in specific arrangements of the music to accompany the words. It makes these words and arrangements freely available for non-commercial usages, but there is a requirement to seek permission for commercial use of the anthem, to ensure that it is not “modified, parodied or demeaned”. So, Senator Daly is right that Australia does seek to rely on its copyright in “Advance Australia Fair” to restrict inappropriate commercial uses. Nevertheless, in my view, this is not a precedent to follow. Australia is not bound by EU law; a fortuitous act of legerdemain created a new copyright in 1984; and exercising that copyright for reasons of taste smacks as much of censorship in Australia as it would in Ireland.

chart, via is running a poll on whether the Irish State should hold the copyright for “Amhrán na bhFiann”. More than 60% think that it should. It seems, therefore, that Senator Daly is on to a winner. However, even though there is public support for his Bill, it’s still the wrong thing to do. I agree with him that the national anthem should be treated with courtesy and respect, but copyright legislation is not a suitable means to this end. Indeed, I’m not sure that legislation of any sort would be suitable; but, if legislation is to be used, then it should set out exactly what is protected, what that protection means, and what the standards of protection are. But none of this has anything to do with copyright, and it should not be distorted for these purposes. We should not willingly countenance the creation of a gap of danger in our cultural heritage. I have long argued on this blog that many copyright issues are ripe for reform, but the national anthem simply is not one of them.