The Australian Government has announced the purchase of copyright in the Australian Aboriginal Flag, ending several years of controversy and uncertainty and guaranteeing the ability of First Nations peoples to freely use the flag to express their identity.
Australian Indigenous artist and activist, Harold Thomas, a Luritja man residing in the Northern Territory, created the flag design in 1971 for the Aboriginal land rights movement. The design quickly grew to become a symbol for Aboriginal people in Australia. Together with the Torres Strait Islander Flag, another Australian Indigenous flag with which the Australian Aboriginal Flag is often flown, the design was granted status as a “Flag of Australia” by proclamation of the Keating Government in 1995 and thereby official recognised and protected as a national flag under the Flags Act 1953 (Cth).
National flag, emblem and armorial bearing designs are generally protected through international treaties, in particular, Article 6ter of the Paris Convention, which prevents the unauthorised registration and use of such designs as trade marks. However, such designs are generally not protected under copyright, either because original authorship of the design is unknown, or because the designer died more than 70 years ago and term of copyright has therefore expired.
The Australian Aboriginal Flag design stands in a different category, having been created only 50 years ago, and Thomas retained copyright as the original author of the Aboriginal Flag Design despite its recognition as a national flag of Australia.
Thomas’s copyright in the Australian Aboriginal Flag as an original artistic work was upheld by the Federal Court of Australia in the 1997 decision of Thomas v Brown (1997) 37 IPR 207 and several subsequent decisions.
Thomas subsequently licensed the Australian Aboriginal Flag design for the manufacture of official flags and took action against unauthorised commercial usage. Most famously, Thomas refused to allow Google to use the design incorporated into its logo on the search engine homepage. However, Thomas allowed free use to non-commercial operations that gave health, educational, legal and other assistance to Aboriginal people.
In 2018, controversy arose when a non-indigenous company, WAM Clothing Pty Ltd, was granted an exclusive licence for reproduction of the design on clothing and other objects and began issuing infringement notices on various organisations, including Aboriginal not-for-profits, sporting clubs and community organisations. Demands were also sent to sports governing bodies who had for many year been using the flag on player uniforms and sporting grounds, often as part of rounds dedicated to recognising the contribution of Indigenous players to the sport or on uniforms worn by Indigenous Australian representative teams.
After several years of negotiations, Thomas has now assigned copyright in the Australian Aboriginal Flag design and terminated all commercial licenses, other than retaining the exclusive licence for the manufacture of flags. In return, the flag licensee will not restrict individuals from making their own flags for personal use and all royalties the Commonwealth receives are to be transferred to the National Aborigines and Islanders Day Observance Committee.
The Commonwealth reportedly made a taxpayer-funder settlement payment of A$20.05 million. This includes cash payments to Thomas and existing licensees, as well as funding a scholarship in Thomas’s name for Indigenous students in relation to Indigenous governance and leadership, and an online education portal on the flag’s history.
Under Australian law, moral rights are personal to individual authors and performers and cannot be assigned or sold. As such, Thomas retains moral rights to his artistic work, including the right to prevent individuals from falsely attributing authorship or subjecting the Australian Aboriginal Flag design to derogatory treatment.
Thomas has expressed hope that:
“this arrangement provides comfort to all Aboriginal people and Australians to use the Flag, unaltered, proudly and without restriction. I am grateful that my art is appreciated by so many, and that it has come to represent something so powerful to so many,” Thomas said. “The Flag represents the timeless history of our land and our people’s time on it. It is an introspection and appreciation of who we are. It draws from the history of our ancestors, our land, and our identity and will honour these well into the future.”
Subject to the commercial licence for flag production and Thomas’s moral rights, commentators have observed that the settlement means that the Australian Aboriginal Flag has the same status as the Australian Flag and other national symbols and may now be freely used in any form and any medium without having to ask permission or pay a fee.
However, this may not necessarily be the case. There are restrictions on registration and misuse of the Australian National Flag as part of trade marks. The Australian Department of the Prime Minister and Cabinet has established protocols for proper use of the Australian National Flag, including on how the flag must be flown, limitations on commercial use of the flag and restrictions on importation of items bearing an image of the flag without permission. It remains to be seen whether similar protocols will be established in respect of the Australian Aboriginal Flag.