Opinion: Sensitivity crucial as Australia seeks to resolve Aboriginal copyright row
Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX
Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Opinion: Sensitivity crucial as Australia seeks to resolve Aboriginal copyright row


The Australian government must proceed with care and caution in a flag copyright dispute that has caused resentment and confusion

It’s not often that flags and copyright take centre stage in public debate, but that is exactly what’s happening in Australia, where the government is negotiating with an Aboriginal man who owns the copyright to his peoples’ flag.

In October a Senate committee completed a dense but fascinating report into what can only be described as a sorry tale. The report clearly recommended that the government should not seize the copyright of Harold Thomas, the man in question, but stopped short of providing decisive guidance on how to resolve the issue.

To understand this highly complex dispute, we have to go back to 1971 – when Thomas designed a black-and-red flag with a yellow circle in the middle. The black represents the Aboriginal people, the yellow circle depicts the sun, and the red symbolises the red earth. The flag soon became inextricably linked with the Aboriginal peoples and their struggle.

In 1995, the Australian governor-general proclaimed the flag as the Australian Aboriginal Flag. Although the government reportedly acted in good faith, Thomas was bitterly opposed to the proclamation – and made his grievances known before it was made. He believed it represented the usurpation of something belonging to the Aboriginal peoples, and his anger triggered a copyright dispute with the government. Two years later, in 1997, the Federal Court declared Thomas the owner of the design’s copyright after dismissing two other men’s claims.

This created a highly unusual situation whereby an individual (rather than a state or even no one at all) owned the copyright to an official flag. Regardless, Thomas was now the man legally entitled to protect and monetise his rights as he saw fit.

The issue appears to have been mostly uncontroversial since the 1997 court ruling. However, that has all changed over the past two years after some companies that have licensed Thomas’s copyright for various goods, including clothing, have sought to enforce their rights.

These wholly legitimate claims have been tarnished by one licensee’s associations with a now-liquidated company that was fined for selling inauthentic Aboriginal art. Nor has it helped that targets of cease and desist letters have included Spark Health Australia, an Aboriginal-owned social enterprise.

In 2019, Spark Health’s co-founder launched the Free the Flag campaign, which calls for the Aboriginal flag to be free from its current exclusive worldwide licensing agreements. At the time of writing, the campaign is inching closer to its Change.org target of 150,000 signatures.

It is against this backdrop that we find ourselves today.

Thomas himself chose not to participate in the Senate inquiry, citing the ongoing discussions with the government. But he has given at least one interview – referenced surprisingly rarely in the articles I have read – in which he expresses anger at “malicious gossip” and “outright lies” surrounding the case. According to Thomas, as creator of the design he is custodian of the flag and entitled to approve licensing deals by law.

Based on this outspoken interview, it seems unlikely that Thomas will be strong-armed by anyone – and you can hardly blame him. In the eyes of the law, he created the design and owns the copyright. Simple.

The problem is, the case is anything but. Amid rising anger and confusion, the government faces a monumental challenge of respecting an Aboriginal man’s legal rights while simultaneously quelling division and resentment, not just from within the Aboriginal community but among other members of the public.

The government is already pursuing what was a popular suggestion in the Senate inquiry: acquire Thomas’s copyright and existing licences. While this could be an elegant solution, it would require agreement from (and payment to) Thomas, a man who appears to have plenty of leverage. And let’s not forget that interview he gave last year, as well as his views dating back to the 1990s; this is not someone who will give up his rights lightly.  

As negotiations with Thomas rumble on – probably for some time according to one of his representatives I have spoken to – other options can’t be ruled out. The exception to this, it is hoped, is government seizure of Thomas’s copyright. The Senate report explicitly advised against this, and for good reason. Removing legally acquired property from an Aborigine would be fraught with danger, not least because of its symbolism. It would also render copyright useless, including for other Aborigines trying to protect their creations.

The report recommended that a future model independent of government in which Aboriginal peoples can use the flag, and in which they are involved and consulted, should be found. Again, though, this appears to turn on Thomas’s consent, and there could be various ways of structuring the set-up anyway.  

Whichever way this case turns, it makes one thing clear: copyright can be hugely complex despite its simple nature. Let’s hope the government can be patient and settle this dispute for good.

more from across site and ros bottom lb

More from across our site

The FRAND rate is only 5 cents higher than the per-device rate determined at first instance in 2023
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Nearly four months after joining Crowell & Moring, Edward Taelman reflects on starting afresh, new clients, and firm culture
Firms discuss the ebb and flow of life sciences IP work and explain how they help professionals pivot between specialities
Mercedes-Benz, Dolby Laboratories, and Panasonic discuss the merits and drawbacks of the USPTO's terminal disclaimer proposal
In-house counsel believe Chinese domestic firms are becoming as sophisticated as international firms, but they may not shift their portfolios just yet
The Court of Appeals for the Federal Circuit is looking to renew a ban that has prevented Judge Pauline Newman from hearing cases
The list of the top representative firms at the UPC may yield few surprises but their success did not come free
The German firms have accounted for 26% of all infringement actions, while US corporations appear interested in litigating at the forum, a report has revealed
Vincent Brault tells us how he fits kitesurfing into his lunchtime routine and why IP is no longer seen as ‘nerdy’
Gift this article