We invite you to read the column written by our partner Eugenio Gormáz and Esteban Orhanović, an associate in the Intellectual and Industrial Property Group, on the legal framework that protects the National Anthem.
With Chile’s Independence Day celebrations just around the corner, the National Anthem will once again be played thousands of times at official events, schools, family gatherings, and on television broadcasts. We sing it almost without thinking, but we rarely ask ourselves what legal framework actually protects this symbol. Do you need permission from anyone to perform it?
From an intellectual property perspective, the National Anthem is an artistic work whose copyright protection is regulated in Chile by Law No. 17,336 on Intellectual Property, which distinguishes between the rights pertaining to the musical composition and those pertaining to the lyrics.
However, this protection is not indefinite: Chilean law establishes that it lasts for the author’s lifetime and extends for 70 years after his or her death.
The lyrics, written by Eusebio Lillo, and the music, composed by Ramón Carnicer, have been in the public domain for decades.
Anyone, anywhere, may perform, record, or adapt the anthem without seeking authorization or paying copyright royalties for the original work, without prejudice to any related rights that may apply to a specific performance or recording.
The fact that no authorization is required, however, does not mean that there are no rules. The Constitution establishes that all residents of the Republic must respect national symbols, among which is the national anthem.
This is not a private right that someone must grant, but rather a civic duty that falls upon everyone, precisely because the symbol belongs to the entire community.
Furthermore, this duty is backed by criminal law. Law No. 12,927, on State Security, classifies as a crime against public order the conduct of those who “publicly desecrate the flag, the coat of arms, the name of the country, or the National Anthem.”
In other words, the protection of the anthem goes beyond a constitutional exhortation to good civic behavior: there is a law with specific criminal penalties for those who desecrate it in public, which places this symbol under a much more robust protective framework than that of an ordinary work in the public domain. There are also regulations governing its performance in educational institutions and at public ceremonies.
Added to this is a nuance that is often overlooked and is particularly relevant for those who work professionally with the anthem—such as choirs, orchestras, or audiovisual productions: the fact that the composition and the score are in the public domain does not mean that every performance is equally free of rights.
Those who sing it and those who perform it musically acquire related rights in their own performance, in accordance with Articles 65 and 66 of Law No. 17,336, which are distinct from the copyrights in the original work, which have already expired.
Article 66, in particular, requires authorization for certain acts of recording, reproduction, transmission, retransmission, or use for profit of such performances. And if that performance is recorded—for example, in a recording studio—the producer of the resulting phonogram also acquires neighboring rights in that specific recording, pursuant to Article 68 of the same law, which allows the producer to authorize or prohibit its reproduction, rental, lending, and other uses.
These rights do come into play—and in a decisive way—if there is an intention to commercialize that particular version: no one can prevent the anthem from being performed, but the producer of that specific recording can control its commercial exploitation.
The anthem thus illustrates an idea that often goes unnoticed. The public domain extinguishes copyright in the original work, but it does not strip the symbol of all protection: the protection simply changes in nature and basis, shifting from copyright to constitutional law, criminal law, and the related rights of those who perform and record it.
The correct question, then, is not who authorizes its singing, but rather what different rules apply to a single symbol that, strictly speaking, has no owner and to which we all owe respect.
Column written by:
Eugenio Gormáz | Partner | egormaz@az.cl
Esteban Orhanović | Intellectual and Industrial Property Group Associate | eorhanovic@az.cl
