Free the Flag: Copyright and the Aboriginal Flag

Should Aboriginal peoples have the right to the Aboriginal flag? Should private, non-Indigenous owned companies profit off of Aboriginal identities? Should an Aboriginal man, a member of the stolen generation, be dispossessed of his intellectual property and artistic efforts?

The controversy over the Australian flag came to fore after a company known as WAM Clothing Pty Ltd (“WAM Clothing”), owned and controlled by non-Indigenous Australians, issued cease and desist notices to various organisations such as the AFL and Spark Health, an Aboriginal owned and led social enterprise. WAM Clothing demanded that these organisations pay for their use of the Aboriginal flag design and refrain from using products with the Aboriginal flag without WAM Clothing’s permission. Unsurprisingly, this led to much outrage and confusion.

The Copyright

The copyright of the Australian Aboriginal flag is held by its creator, Mr Harold Thomas, a Luritja and Wombai man and Aboriginal artist born in Alice Springs. As a young child, under the then Commonwealth government’s policy of removing part-Aboriginal children from their homes, Mr Thomas was stolen from his family as a young child and sent to the St Francis Home, an Anglican Institution for Aboriginal boys in Adelaide. In 1965, Mr Thomas earned a scholarship to study at the South Australian School of Art where he became the first Aboriginal person to graduate from an Australian art school.

In 1971, Mr Thomas designed the Australian Aboriginal flag and it was first flown on 12 July 1971, in Victoria Square, Adelaide on National Aborigines Day.

In 1997, the Federal Court of Australia declared Mr Thomas to be the owner of the copyright subsisting in the Aboriginal flag.[i]

As the copyright holder, Mr Thomas is entitled to a bundle of moral and economic rights under the Copyright Act 1968 (Cth) (“the Copyright Act”), which include:

the right to be attributed or credited for his work;
the right to not have his work falsely attributed;
the right to not have his work treated in a derogatory way;
the right to reproduce the work in a material form;
the right to publish the work; and
the right to communicate the work to the public.[ii]

These rights subsist for the Mr Thomas’ lifetime, plus 70 years after the calendar year of their death.[iii]

The Current Dispute

In accordance with his right under section 196 of the Copyright Act, Mr Thomas has licensed some of his rights in relation to the Aboriginal flag design to various entities, including Carroll & Richardson Flagworld Pty Ltd, WAM Clothing and Gifts Mate Pty Ltd. Anyone wishing to reproduce the flag for commercial purposes or for non-commercial, private purposes (such as making their own copy or getting a tattoo of the flag) must seek the permission of Mr Thomas or the relevant company.

WAM Clothing, owned and controlled by non-Indigenous Australians, has been granted the exclusive licence to reproduce the Aboriginal flag on clothing and apparel, towels, digital and physical media products. Since then, it has issued numerous cease and desist notices to numerous entities, including non-profit Aboriginal organisations. In addition, it claimed payment for the use of the flag design and demanded that users seek its permission before reproducing the flag on their products. WAM Clothing’s conduct has caused outrage and led to a Senate inquiry into the prevailing copyright and licensing arrangements for the Aboriginal flag.

Free the Flag

Compulsory Acquisition

Pursuant to section 51(xxxi) of the Australian Constitution, the Commonwealth government has the power to compulsorily acquire the copyright subsisting in the Aboriginal flag or the existing copyright licences on just terms. However, should the Commonwealth Government choose to acquire the copyright from Mr Thomas, pursuant to section 196(4) of the Copyright Act, it would still be bound by the licence agreements made by Mr Thomas with Carroll & Richardson Flagworld Pty Ltd, WAM Clothing and Gifts Mate Pty Ltd. Therefore, in order to control the use and reproduction of the flag design as a flag, on clothing and on merchandise, the Commonwealth government would be required to acquire the existing licences as well.

A New “Fair Dealing Exception”

The Copyright Act provides a number of exceptions to copyright, including fair dealing for the purpose of research, criticism or review, parody or satire, and reporting news,[iv] and for the purposes of judicial proceeding or professional advice.[v] None of these appear to permit the general use of the Aboriginal flag by the public.

Some submissions and witnesses to the Senate inquiry recommended that the Copyright Act be amended to include a new fair dealing exception in order to provide for those wishing to use Mr Thomas’ design. Unfortunately, however, the introduction of a new fair dealing exception for the use of the Aboriginal flag could unnecessarily further complicate Australian copyright law. Moreover, it would cause serious financial loss to Mr Thomas and his licensees.

Not being from an indigenous background, I could never fully understand how the Aboriginal flag has become a symbol of unity and identity for Aboriginal peoples. However, in my view, the compulsory acquisition of the copyright from Mr Thomas and the introduction of a new fair dealing exception would be entirely unconscionable. The taking of intellectual property from an Aboriginal person and a member of the stolen generation, by a government who has already caused him harm, would mirror the dispossession and appropriation Indigenous Australians have suffered for far too long.

A Negotiated Outcome

A negotiated outcome between the Commonwealth government and Mr Thomas, which compensates Mr Thomas and permits him to retain ownership of the flag design’s copyright while increasing the scope for Aboriginal peoples to use the Aboriginal flag, appears to be the favoured approach. Many have also recommended a custodianship model that better reflects Aboriginal traditions and allows every Aboriginal person, corporation or organisation to use the flag freely, with the Aboriginal Advisory Council of Western Australia noting that:

“In [Aboriginal communities] people are custodians of knowledge. We do a lot of cultural healing work. We don’t own that knowledge … Custodianship is probably the approach that needs to be taken rather than ownership.”

Whatever approach it ultimately takes in resolving the matter, it is imperative that, going forward, the Commonwealth government take care to balance the interests of Aboriginal peoples wishing to use their flag with Mr Thomas’ rights as the copyright holder. Whether this will be achieved through ongoing negotiations between the Commonwealth government and Mr Thomas is yet to be seen.

[i] Thomas v Brown & Morrison (1997) 37 IPR 207.

[ii] Copyright Act s 31, 193, 195AC and 195AI.

[iii] Ibid s 33.

[iv] Ibid s 41-42.

[v] Ibid s 43.

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Free the Flag: Copyright and the Aboriginal Flag