With a Senate inquiry holding a public hearing earlier this week, and delicate negotiations between stakeholders recently revealed to have been ongoing since June last year, now seems like a good time to examine the legal issues behind the decades of dispute surrounding the copyright and licensing arrangements for the Aboriginal flag.
The flag was created by Luritja artist Harold Thomas, who first asserted his right to be recognised as its creator in 1980. It had been seen at protests around Canberra as early as 1971.
In 1995, it was proclaimed as an official flag of Australia. As the National Museum of Australia has noted, "the Aboriginal Flag is recognised locally and internationally as a symbol of Indigenous pride and the continuing struggle for justice".
The Federal Court declared Mr Thomas the owner of the flag's copyright in 1997. He has mostly held off asserting that copyright, however he has wielded it from time to time, such as in a complaint against a Western Australian businessman in 2003, and in 2010 when Google tried to use the flag in its homepage "Google doodle" without a copyright licence.
In November 2018, Mr Thomas signed an exclusive licence agreement for the use of the Aboriginal flag on clothing with WAM Clothing.
Spark Health, an Aboriginal social enterprise which makes merchandise with the tagline Clothing the Gap, received a legal letter. Objecting to the legal demand, Laura Thompson established a campaign called "Free the Flag", which has received widespread public support, including over 100,000 people signing a petition.
The football codes of the AFL and the NRL, as well as Australia's rugby team the Wallabies, have come into conflict with WAM Clothing this year over their use of the Aboriginal flag. A number of AFL Clubs and Indigenous footballers have supported the Free the Flag campaign. In response, WAM Clothing has demanded a retrospective bill for past use of the Aboriginal Flag. The NRL has received a cease-and-desist notice. The Wallabies have now declined to license the flag from WAM Clothing.
The federal opposition spokeswoman for Indigenous Australians, Linda Burney, last month lamented: "The recently introduced restrictions on the use of the Aboriginal flag are unacceptable and heartbreaking."
She emphasised: "This is a national flag and the government has to make sure that it is freely available to all Australians."
Burney has been drafting a bill to address the issues surrounding the flag's copyright, and the Senate select committee established this month is examining "who benefits from payments for the use of the Aboriginal flag design and the impact on Aboriginal organisations, Aboriginal communities and the broader Australian community of the current copyright and licensing arrangements".
So what are the options available going forward?
A number of politicians favour the compulsory acquisition of the flag's copyright. Liberal MP Russell Broadbent says he would support the Commonwealth buying out the copyright as "the market is in this case not serving the national interest". There are concerns, though, about whether it would be appropriate for the Australian government to appropriate Indigenous intellectual property in such a way.
Another possible approach would be a community approach to copyright ownership. In contrast to the Aboriginal flag, the Torres Strait Island Regional Council and its 15 communities own the copyright of the Torres Strait Islander Flag. Such a model could conceivably be employed with respect to the Aboriginal flag.
Another possible in-between option would be statutory licensing. While such a regime would still recognise the copyright ownership of Harold Thomas, it would enable copyright users to use the work in return for a license fee - without needing the permission of the copyright owner or licensee.
A fourth and more unique approach would be the establishment of a copyright exception. Australia's copyright regime recognises a number of fair dealing defences, as well as library and archives exceptions; and a number of miscellaneous exceptions. The Australian Parliament could create a new defence of fair dealing or a particular copyright exception, which would allow for free and fair uses of the Aboriginal flag.
The Australian government also retains the power to manage intellectual property with respect to national icons.
The Minister for Indigenous Australians, Ken Wyatt, remains hopeful the dispute can be resolved through voluntary negotiations with Mr Thomas. There are certainly precedents for peaceful resolution of copyright conflicts. The long-running copyright dispute over the work of Albert Namatjira was resolved in part by the patient pro bono legal negotiations of Mark Leibler.
The copyright dispute over the Aboriginal flag also highlights the need for a broader approach to the protection of Indigenous intellectual property. The government is currently promising to respond to an inquiry into inauthentic Indigenous art, which Mr Wyatt has vowed to stamp out.
It will be interesting to see whether the Select Committee on the Aboriginal Flag will be able to reach a consensus on its recommendations - given the spectrum of views expressed by legislators in the Australian Parliament.
- Matthew Rimmer is a Professor of Intellectual Property and Innovation Law at the QUT Faculty of Law. He is the editor of the Research Handbook on Indigenous Intellectual Property (2015).