INSIGHT

Copyright in the Aboriginal flag

By Stephanie Kelly
Intellectual Property Patents & Trade Marks

Senate Select Committee recommends against compulsory acquisition 4 min read

Copyright in the Aboriginal flag is owned by Aboriginal artist, Harold Thomas.

The right to reproduce the flag on clothing worldwide is exclusively licensed to a non-indigenous company, WAM Clothing Pty Ltd (WAM Clothing). In response to advocacy asking for the flag to be freed, a Senate Select Committee (the Committee) held public hearings and issued a report finding that copyright in the Aboriginal flag should not be compulsorily acquired by the Federal Government.

The Committee's response highlights that while compulsory acquisition of copyright may be an option available to the Government, in practice there are often important considerations that may lead it to pursue alternative approaches.

Key takeaways

  • Symbols of national and cultural significance can be subject to copyright and licensing arrangements that limit their use. The Aboriginal flag is currently subject to exclusive licensing arrangements.
  • A Committee established to look into the flag's copyright and licensing arrangements recently rejected an approach that would that would see the Government compulsorily acquire the copyright of an Aboriginal artist.
  • The Committee's preference for a model that would leave the artist's copyright intact and see rights vested in an independent Aboriginal body highlights that there are often considerations in favour of artists retaining copyright where such rights can be effectively balanced. 

Aboriginal flag

Copyright in the flag

Copyright in the Aboriginal flag is privately owned by the flag's creator Harold Thomas, a Luritja and Wombai man from Central Australia. In 1995, the then Governor-General proclaimed the Aboriginal flag as a flag of national significance under the Flags Act 1953. In 1997, the Federal Court of Australia declared Mr Thomas the owner of copyright subsisting in the Aboriginal flag.  

Recent controversy

The recent controversy surrounding copyright in the Aboriginal flag has focussed on the actions of non-Aboriginal exclusive licensees. Mr Thomas granted exclusive worldwide licences to reproduce images of the Aboriginal flags on clothing to WAM Clothing, and on souvenir products to Wooster Holdings. WAM Clothing's approach to enforcing its right under the licence by issuing cease and desist letters to Aboriginal-owned organisations (such as Spark Health Australia, which produces clothing under 'Clothing the Gap'), has sparked criticism and led Spark Health's Managing Director, Laura Thompson, to start the 'Free the Flag' campaign.

Senate Inquiry

Senate Select Committee

A Senate Select Committee was established to consider copyright and licensing arrangements for the Aboriginal flag and the options available to the Government to enable the Aboriginal flag to be used more freely. A large number of Aboriginal organisations, Aboriginal community leaders and copyright experts appeared before the Committee to give evidence. Mr Thomas did not give evidence at those hearings but confirmed he was in confidential negotiations with the Government about the flag.

Recommendations

On 13 October 2020, the Committee published a report recommending against the Government compulsorily acquiring copyright in the Aboriginal flag. Instead, the Committee supported a negotiated outcome where:

  • the rights of current exclusive licensees are terminated;
  • the Government enters into an agreement with Mr Thomas for use of the Aboriginal flag; and
  • custodianship of the flag is vested in an independent Aboriginal body, responsible for decisions surrounding the flag's future use and ensuring the flag's integrity and dignity is respected.

A complex balance

In reaching its conclusions, the Committee considered the difficult balance to be struck between the rights of Mr Thomas as the flag's creator, and the flag's significance to Aboriginal people. While many witnesses supported the need for some change to the current arrangements, there was debate about the best way forward.

The possibility of the Government using its powers under section 51(xxxi) of the Australian Constitution to compulsorily acquire Mr Thomas' copyright and/or the rights under the licence on just terms was discussed at the public hearings. If the copyright in the flag was compulsorily acquired, it was noted that the Government would also need to compulsorily acquire the licensees' rights to avoid being bound by the terms of the licences as a successor in title pursuant to section 196(4) the Copyright Act 1986.

Significant concern was expressed about the compulsory acquisition of Mr Thomas' copyright. Professor Marcia Langton AO noted that Mr Thomas is a member of the Stolen Generations and it would be unconscionable for the Government to harm him a second time. Others raised concern that the Government using the constitution to forcibly acquire the flag would replicate the dispossession Aboriginal Australians have already endured.

Further concern was raised that compulsory acquisition would set a dangerous precedent for artists, and undercut positive steps made towards protecting Aboriginal artists from the proliferation of fake art through the Indigenous Art Code.

The Committee ultimately did not express a firm view on whether the licences can, and should, be compulsorily acquired in circumstances where Mr Thomas' copyright continues to subsist. Instead, the Committee made it clear that they were amenable to an outcome where the licensees' rights are terminated and vested in an independent Aboriginal body. In making that recommendation, the Committee noted that a further parliamentary committee might assist with framing the structure of such a body.