Definition and Legal Foundations of the National Anthem
The national anthem is a national symbol of a state with special legal, political, and cultural significance. As a musical emblem of sovereignty, the national anthem expresses a state’s national identity, history, and values. In many countries around the world, including Germany and Austria, the national anthem is defined by law or constitutional provisions. This article examines the comprehensive legal frameworks and aspects surrounding the national anthem.
Origin and Establishment of the National Anthem
Legal Enshrinement
Generally, the national anthem is formally established through statutory regulations, decrees, or ordinances. In some countries, including Germany, the designation is also determined partly by long-standing tradition and by sovereign order without explicit statutory text. For example, Germany has no explicit legal basis for the national anthem; the “Deutschlandlied” anthem (third stanza) is treated as the national anthem on the basis of a correspondence between the Federal President and the Federal Chancellor from 1952 and through customary practice. In Austria, on the other hand, the national anthem is precisely defined by the Federal Constitutional Law of February 25, 1947, as well as further regulations.
Procedures for Amendment
Any change to the national anthem—such as the lyrics, melody, or official version—requires a legislative process. In Austria, at the federal level, such a change is tied to a formal legislative procedure. In Germany, an amendment would technically be possible but would require an official declaration by the constitutional organs or a statutory regulation.
Legal Status and Protection of the National Anthem
Status as an Emblem of Sovereignty
The national anthem is among the emblems of sovereignty of a state, alongside the national flag and coat of arms. Accordingly, it enjoys special protection. The use, performance, or modification of the anthem is subject to sovereign regulations. In Germany, for example, the national anthem is protected under § 90a of the Criminal Code (defamation of the state and its symbols), while in Austria, its use is governed by the Federal Act on the Regulation of the National Anthem as well as other provisions.
Protection from Misuse and Defamation
In Germany, defaming the national anthem is a criminal offense under § 90a of the Criminal Code. The unauthorized use, denigration, or insult of the anthem can be punished by imprisonment or a fine. In Austria, comparable criminal provisions exist, especially in the Criminal Code (§ 248 StGB), forbidding insult or mockery of the national anthem. Police laws and decrees also contain further provisions to protect the dignity of the anthem in public spaces.
Copyright Aspects
The copyright status of the national anthem depends on whether the text and music are still protected by copyright. While many anthems are in the public domain, arrangements, adaptations, or new versions of the lyrics can still be copyright protected. Use at official events is generally permitted, but commercial uses may require copyright clearance. In Germany, for example, the third stanza of the Deutschlandlied is in the public domain; the melody and lyrics of the Austrian national anthem, however, are subject to special provisions because they have been partly modified.
Application and Regulations for Performance
Official Occasions
Performing the national anthem is required or customary at certain public events, such as state visits, national holidays, sporting events, commemorations, or official ceremonies. The procedures, duration, and behavior of participants during the anthem may be precisely regulated (e.g., protocol rules, regulations of public institutions, or service instructions).
Conduct During the National Anthem
For public officials, soldiers, and other functionaries, codes of conduct often apply during the performance of the national anthem, such as standing in attention or removing headgear. These requirements are set down partly in official and partly in protocol regulations.
Use in the Media Sector
Rules and standards also exist in radio, television, and on the internet regarding the presentation of the national anthem, especially with respect to the quality and integrity of the performance. Altering the lyrics or melody is typically prohibited. Violations may, depending on severity, constitute a criminal or an administrative offense.
Special Legal Issues
Adaptation and Modernization
In some countries, adaptation of the anthem’s lyrics is a subject of social and legislative debate, for example on grounds of equality or historical contextualization. Amendments to the national anthem generally require the approval of the competent legislature or a binding political decision.
Use by Third Parties and Commercial Utilization
While private or school use of the national anthem is generally free in practice, commercial exploitation, such as for advertising purposes, is often subject to restrictions. In such cases, both copyright law and regulations protecting official symbols apply. Existing copyright exceptions permit certain uses, for example, for informational, educational, or reporting purposes.
International Aspects
If the national anthem is performed abroad, international agreements (particularly on the protection of national symbols) must be observed. The Vienna Convention on Diplomatic Relations and protocol rules of international organizations set standards for the correct performance of foreign national anthems.
Literature and Further Provisions
- Basic Law for the Federal Republic of Germany
- Federal Constitutional Law of Austria
- Criminal Code (Germany), especially § 90a
- Criminal Code (Austria), especially § 248
- Regulations on the Use of State Symbols (various federal and state laws)
- “The National Anthem in German and Austrian Law,” Yearbook of Public Law (various years)
Summary
The national anthem is a central state symbol with a multitude of legal aspects. Its special protection arises from its status as an emblem of sovereignty, relevant criminal, police, and copyright regulations, as well as specific rules for performance and use. Interventions or changes are strictly regulated by law and regularly require approval. The legal framework ensures the integrity, respect, and functional value of the national anthem as a marker of national identity.
Frequently Asked Questions
May private individuals use the national anthem for public performances?
The use of the national anthem in public performances is generally permitted, as the German national anthem (the Deutschlandlied, third stanza) and many other national anthems are works in the public domain. The rights to the melody (by Joseph Haydn) and to the text of the third stanza (by August Heinrich Hoffmann von Fallersleben) have expired under § 64 Copyright Act, as their creators passed away over 70 years ago. No license fees or registration with collecting societies such as GEMA are therefore required. However, when arrangements or modern adaptations of the anthem are used—particularly by living musicians—copyright protection may apply. Public performances must also not violate public morals or constitutional respect for national symbols (§ 90a StGB covers the defamation of the state and its symbols).
What specific statutory protection rules exist for the national anthem?
Special protection regulations for the national anthem are found in the Criminal Code (StGB), explicitly in § 90a StGB (‘Defamation of the State and its Symbols’). It is therefore a criminal offense to publicly defame the national anthem in a contemptuous manner, meaning to deliberately disparage or ridicule it. It should be noted that criminal relevance does not extend to mere use or alteration of the anthem, but is expressly directed at contexts of denigration. In addition, state-specific protocols may exist, such as requiring the anthem to be played during public events, commemorations, or in schools.
Is it permissible to perform or publish the national anthem in a modified form?
Legally, changing and arranging the national anthem is generally permissible since the original work is in the public domain. Restrictions, however, arise under criminal law (in particular § 90a StGB) and protocol law. For instance, artistic performances of the anthem in a different musical style are legally allowed as long as no intention to disparage is evident. However, a performance aimed at denigrating or mocking the anthem may have criminal consequences. Additionally, publishing new arrangements may raise copyright issues if protectable elements are created.
Are radio and television broadcasters free to broadcast the national anthem?
With regard to copyright regulations, broadcasting organizations may transmit the national anthem freely and without license fees, provided it is the original, public domain version. Restrictions may arise from broadcasting treaties and possibly from the statutes of each broadcasting organization, which may include special rules for the use of state symbols, as well as protocol law for state occasions. Independent arrangements or adaptations of the anthem used by broadcasters may be protected by copyright, in which case permission from the relevant rights holder is required.
To what extent is the national anthem legally protected as a state symbol?
Under German law, the national anthem is one of the state symbols according to § 90a StGB. Its protection is aimed primarily at forms of defamation, that is, public disrespect or denigration. This protection applies regardless of whether the work is protected by copyright. The respect for state symbols is viewed as part of law and constitutional loyalty, which is further reflected in various regulations and administrative directives, especially regulating official ceremonies.
Can the national anthem be used for advertising purposes?
The use of the national anthem for commercial advertising purposes is legally problematic. In principle, there is no copyright restriction unless a modern, copyright-protected arrangement is used. However, using the national anthem in advertising may be regarded as unauthorized defamation or as improper denigration of the state symbol (§ 90a StGB). Furthermore, claims for injunctive relief under competition law (§§ 3, 4 UWG) may arise if state symbols are used in a manner that can mislead consumers or violate the symbol’s dignity.
Who officially decides on the lyrics and melody of the national anthem?
According to case law and state practice in Germany, it is the Federal President who determines the national anthem. Historically, the current version of the anthem (third stanza of the Deutschlandlied to the melody by Joseph Haydn) was designated as an official state symbol in 1952 through an exchange of letters between Federal President Theodor Heuss and Federal Chancellor Konrad Adenauer. There is no specific statutory provision, but rather a constitutional practice under which the Federal President is responsible for matters concerning state symbols, including the anthem. Amendments or replacements of the national anthem therefore require a decision at the highest level of state authority.
