Uganda: copyright in the national anthem
Copyright judgments in Uganda are fairly rare. So a judgment that deals with copyright in the national anthem is certainly worthy of discussion. The case in question is Mary Theresa Kakoma, as administrator of the estate of Professor George W Kakoma v Attorney General, a judgment of the Court of Appeal of Uganda handed down on 15 July 2019.
The issue was very simple - who owns the copyright in the Ugandan national anthem, Oh Uganda, Land of Beauty? This anthem has an interesting background. Uganda achieved independence from the United Kingdom in 1962 and, in preparation of independence, the authorities requested members of the public to submit entries for a national anthem. A number of entries were submitted and, after a lengthy selection process, the entry of Professor George Kakoma was chosen - this seems to have been done reluctantly, with the judging panel not being very happy with any of the submissions. The professor was paid Shillings (Shs.) 2000 for his troubles - it is not clear exactly what that was worth then, but at today’s rates that would be very little indeed - one US$ is roughly Shs. 3500.
In 2008, an obviously dissatisfied Kakoma sued for an order declaring that he was the lawful holder of the copyright in the national anthem. He wanted various things including an acknowledgment of copyright in the musical work, as well as payment of royalties. Kakoma did not get what he sought, although the court (in what seems to have been a somewhat confused judgment) did order that Shs 50,000,000 be paid to Kakoma for the ‘the residue of his interest in the copyright.’ Kakoma was dissatisfied with this award and took the case on appeal.
On appeal Kakoma insisted that he owned the copyright. He denied that he had been commissioned to write the national anthem, pointing out that there had never been a contract between the parties. He further denied that he had assigned the copyright to the authorities, making the point that assignments have to be in writing and no document had ever been signed.
But the Court of Appeal found against Kakoma, who had died by the time the judgment was delivered. Lady Justice Elizabeth Musoke, JA, applied the present Ugandan copyright law, the Copyright and Neighbouring Rights Act 2006. The judge did not make reference to previous copyright laws, even though the present law does state that rights acquired under previous copyright laws are retained. The judge said that Section 8(2) of the legislation provides that where a person creates a work under the control of the government the copyright belongs to the government unless otherwise agreed, even if the moral rights remain with the individual. Moreover, as 50 years have passed since its first performance (at the independence celebrations in 1962), copyright in the anthem had expired.
As for the initial award that had been made, Shs.2000, the judge said that this was ‘a reward to the composer of the song. As for the latter award by the earlier court (Shs. 50 million), the judge felt that this ‘had no legal basis’ and the order therefore had to be set aside.
A harsh result for the widow of the composer. But an interesting addition to the copyright jurisprudence.
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