St. John’s Antigua- As the debate continues on the appropriate use of national symbols and emblems, particularly the national anthem and flag, intellectual property lawyer Conliff Clarke said the owner of the symbols has the authority to control their use.
The owner of the symbols in this case is the government, and the Minister of Ecclesiastical Affairs controls the established Code of Etiquette which dictates how, when, where and by whom the emblems and symbols can or cannot be used.
Controversy erupted over a week ago when the musical group Red Hot Flames used the lyrics of the anthem and reproduced it as their own song titled “Patriotic.” Since public outcry, Clarence “Oungku” Edwards, the singer on the “Patriotic” track, has withdrawn the song.
Just before that, the Antigua Clays shooting club reconfigured the flag and used it as a logo on its productions. The group too has withdrawn the logo.
Clarke, who has 12 years experience in intellectual property law, explained, “The Code of Ethics in reference to the symbols and emblems are not statutory instruments. However, the Copyright Law has sanctions in it on how they are to be used to enforce sanctions. It is a matter of Property Law and has nothing to do with freedom of expression, it doesn’t give you the right to use somebody’s property.”
The code to which he referred points out, “The national anthem should not be parodied in a verse or in song neither should it be played in any tempo other that that officially recognized. Particularly, the tune should not be used as a dance number.”
It also states, among other things, that persons are prohibited from flying the flag in certain manners and at certain times and places.
Additionally, it outlines, “The flag should not be used for the purposes of adornment or advertising …”
It also states that the Coat of Arms, the official seal of the government, may not be used or reproduced in any form without the approval of the government.
Clarke said it is a myth that copyright has to be sought by the producer or owner of a material.
“Copyright doesn’t have to be registered, it is valid from the point and time when the material is put into a permanent form, like writing. Government is a legal entity and the anthem and flag and other symbols are done by work for hire. Government is the entity that owns the rights to those national symbols and as such it has the ability to dictate how these symbols are to be used,” Clarke said.
Meantime, attorney Steadroy “Cutie” Benjamin said the Copyright Act is somewhat new to Antigua & Barbuda, and recent developments highlight the need for legal practitioners to discuss the matter.
“We need to look at it and some of us are already discussing it. I think we should have a forum to study the provision in Copyright Act among other areas as it pertains to the proper use of our symbols and emblems and appreciate the terms, conditions and exactly what we can and cannot do with them,” Benjamin said.
Dr David Dorsett, another attorney commenting on the matter, maintains his original opinion that freedom of expression allows one to adapt the anthem for personal or artistic use since the Code of Etiquette does not carry the force of law.
“Most countries have some convention or protocol or etiquette with respect to the use of national symbols, Coat of Arms, Seals Anthems etc but it doesn’t have the force of law, it is not a statutory instrument, it is not a regulation. It simply has the power of convention and social stigma if not abided by,” Dr Dorsett opined.