The reemergence of issues surrounding copyright and the Australian Aboriginal Flag…

As discussed earlier on, flags have been at the centre of some IP news recently. One such instance is the copyright issues surrounding the Australian Aboriginal Flag, as Riana Harvey (University of Southampton) explains.

Here's what Riana writes:

The reemergence of issues surrounding copyright and the Australian Aboriginal Flag…

by Riana Harvey

The topic of flags and copyright has resurfaced once more in Australia with regards to the Aboriginal flag. This was brought to light in the media recently when it emerged that cease-and-desist notices had been sent by non-Aboriginal company ‘WAM Clothing’ to several other companies for use of the Aboriginal flag on their clothing. Companies notified included the Australian Football League, which uses the flag on football jerseys in its Indigenous rounds, as well as ‘Spark Health’, an Aboriginal-owned and run social enterprise company which produces shirts bearing the flag. 

So, what makes this case so unique? It all revolves around the fact that copyright of the Aboriginal Flag is not controlled by the Australian government - the Aboriginal flag copyright is, instead, privately owned.

A brief history of the Aboriginal flag

The Aboriginal flag is divided into 2 sections, an upper black half and a lower red half, with a yellow circle in the centre of the flag. Designed by Luritja artist Harold Thomas, it is believed to have made its first appearance in a National Aborigines’ Day rally in Adelaide in 1971. It was officially declared an Australian National flag under s5 of the Flags Act 1953 by the Australian government in 1995.

Consequently, many artists came forward to claim copyright ownership in the flag. In Thomas v Brown and Tennant [1997] FCA 215, the Federal Court of Australia ultimately found that Mr Thomas was the author of the Artistic Work, and thus the owner of the bundle of rights subsisting in it. This grants Mr Thomas the ability to decide which organisations may reproduce the image, through the issuing of licences. 

In October 2018, Mr Thomas granted a licence to WAM Clothing, giving them exclusive worldwide rights to reproduce the flag on clothing, hence resulting in the company issuing cease-and-desist notices to various companies using the logo on clothing.

The Aboriginal flag is the one on the left

This does present a very different scenario to that faced by other worldwide flags. For older flags,  any term of copyright protection would have already expired, automatically placing the flag in the public domain. Alternatively, copyright of a national flag may be held by the government, which may have commissioned or created the flag. This is apparent in the U.S, where it is set out under 17 U.S.C. § 105 that works of the United States government may not receive copyright protection, therefore also placing it in the public domain.

However, as a copyright owned by a private individual, the Aboriginal flag is subject to the Australian standard duration of copyright protection - the period of Mr Thomas’s life plus 70 years - and will not otherwise enter the public domain until this period is over.

Solutions?

In an ‘ordinary’ copyright dispute, the results would be, in short, indisputable. Mr Thomas’s ownership of the copyright-protected Work allows him to grant licences in whichever way he pleases. However, as a recognised National flag of Australia, it could be argued that it goes beyond a simple copyright issue, extending to one of public policy.

Fiona Phillips, former Chief Executive Office of the Australian Copyright Council (who has written for IPKat in the past on other Australian copyright issues - see here) suggested that a possible solution would be for the Australian government to purchase all rights to license the flag from Mr Thomas, due to the flag’s significance as a national symbol and importance to Indigenous Australians (to listen to a radio interview by Ms Phillips on the issue, click here). However, this possibility was ruled out by Indigenous Affairs minister Ken Wyatt, who said that by entering into the agreement with WAM Clothing, Mr Thomas had not signed away all rights to the flag. Mr Wyatt stated that Mr Thomas was concerned with protecting the integrity of the flag, and the copyright told the story of Mr Thomas as an artist and an indigenous person. 

Comment

This case does present a very unique quandary. On the one hand, if owned by the government, it would allow everyone to use the flag. However, this might result in the flag being exploited for commercial gain if affixed to products not made by Aborigine businesses. On the other hand, if privately owned, the integrity of the flag may be controlled. This, however, would allow an individual to profit from licensing the flag, which is a national emblem of the country. 

The question of the copyright ownership of the Aboriginal flag has arisen in earlier instances, such as in 2011 when use of the Aboriginal flag by Google was prohibited. However, given the high amount of political involvement in the matter currently, a solution may be found in the near future - it will just be a matter of when and how…