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Aboriginal flag dispute – what is it all about?

Emily Shoemark

07 Oct 2020

Topics

  • Consumer Law
  • Intellectual Property

In recent months there has been much media focus about the rights of the public to use the Aboriginal Flag –  including protests about limiting the public’s (and in particular the Aboriginal community’s) right to use or display the flag.

Unlike most other flags around the world, the Aboriginal flag is still protected by copyright.

But what is the dispute really about?

What is mean by Copyright?

Under Australian law, copyright automatically exists in any unique ‘work’ created. This means that if you write a song, create a painting or write a book, if the work is unique then you will automatically have protection under the Copyright Act 1968. That protection continues until 70 years after the copyright owner passes away – and at that time the ‘work’ will enter the public domain.  

It is up to the copyright owner how they use that protection, for example:

  • Stopping someone else from copying your work by pursing them for copyright infringement in the court;
  • Licence or assign that copyright to someone else for a commercial purpose;
  • Nothing at all – if the copyright owner is happy for their work to be free to be used by anyone else for free.

Who owns copyright in the flag?

The Aboriginal flag was designed by Mr Harold Thomas, Luritja man of Central Australia. In 1997, the Federal Court officially recognised Mr Thomas as the author of the flag – meaning that the flag was protected by the Copyright Act. This also meant that the flag could only be reproduced in accordance with that Act, or with the permission of Mr Thomas.[1]  

Events leading to the dispute

Mr Thomas licenced the copyright in the Aboriginal flag to a number of organisations to allow them to manufacture the flag and/or clothes with the flag on it. Mr Thomas also allows for non-commercial operations that provide healthcare, educational, legal or other assistance to Aboriginal people to use images of the flag for free.

One of those companies, WAM Clothing, was granted an exclusive right to use the flag on clothing. As a result of this arrangement, WAM Clothing has been contacting third parties, such as the AFL, claiming that any production of the flag is prohibited without its consent or agreement. 

The public protest about restricting the use of the flag has been widely reported in the media.

What next from here?

A Select Committee has been established in the Senate to inquire into and report on current and former copyright and licensing arrangements for the Aboriginal flag design. The terms of reference for the Inquiry can be found here: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Aboriginal_Flag/AboriginalFlag/Terms_of_Reference

In broad terms, the Inquiry will consider:

  • who benefits from payments for the use of the Aboriginal Flag design, and any impact on Aboriginal organisations and communities;
  • options available for the Government to enable the design to be freely used while still recognising the rights of Mr Thomas; and
  • any other matters relevant to the enduring and fair use of the flag design by the Aboriginal and Australian community.

Submissions have now closed for the Inquiry, with the report due on 13 October 2020. No doubt there will be much public interest on the pending report, and what will happen next in the flag story.

How can we help?

Snedden Hall & Gallop have extensive experience in copyright and intellectual property matters. If you have any questions on your particular situation, do not hesitate to contact our Business Services team on 02 6285 8000 or by email.


[1]  Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Aboriginal flag.