Aboriginal flag: Senate inquiry rejects calls for government to take over copyright
A Senate inquiry into the stoush over who has the right to reproduce the Aboriginal flag has rejected calls for the federal government to invoke its constitutional power to compulsorily acquire the copyright, saying it would perpetuate the dispossession and injustice endured by Aboriginal people and establish “a dangerous precedent”.
But, in a dissenting view, Labor said the government must resolve the dispute as quickly as possible, to “relieve community distress and harm caused by the licensing arrangements currently in place”. If it fails to reach a deal by January 2021, Labor argued, then compulsory acquisition of the licences should be made.
“Resolution of the current dispute in 12 or 18 months’ time may be too late and may result in Aboriginal people – as some have already done – abandoning the flag, a flag that has since its inception been a symbol of solidarity and struggle, of pride and protest, a unifying flag of and for Aboriginal people,” Labor senators Malarndirri McCarthy and Patrick Dodson wrote.
Greens senator Lidia Thorpe said she was also concerned at the amount of community distress being caused, “particularly as the licences are held, and are being profited from, by nonAboriginal people”.
But Liberal senator Andrew Bragg said compulsory acquisition would be “morally abhorrent” and set an “ugly precedent”.
The committee was set up to look into the copyright and licensing arrangements of the Aboriginal flag, amid mounting distress and confusion over who is able to use the design freely.
A non-Indigenous company, WAM Clothing, was granted the exclusive licence to reproduce the flag design on clothing, physical and digital media by its designer and copyright holder, the Luritja artist Harold Thomas, in November 2018.
WAM Clothing has since issued infringement notices to the AFL and NRL, as well as many small nonprofit Aboriginal organisations for their past use of the design – an approach the committee described as “heavyhanded”.
“WAM Clothing’s conduct, in particular its approach to enforcing its rights as a licensee, was raised throughout the course of the inquiry,” the report said.
Numerous submissions voiced distress about the way in which WAM Clothing had communicated with them.
“WAM Clothing’s approach to exercising its exclusive rights to reproduce the Aboriginal flag on clothing has, at best, discouraged its use, and at worst, caused distress to notice recipients and others seeking to produce the clothing or products.”
WAM Clothing is part-owned by Ben Wooster, whose previous company, Birubi Art, was fined a record $2.3m by the federal court after finding it had breached consumer law by selling fake Aboriginal art.
The minister for Indigenous Australians, Ken Wyatt, has said his agency is currently in “quiet discussions” with parties involved, including Thomas, about ways to resolve the issue but has said it is “extremely complicated”.
The committee said it supports those negotiations, but added a balance must be struck between the rights and value of the flag to the copyright holder and licensees, and the Aboriginal flag’s “deep and intrinsic significance to Aboriginal people and their lives”.
“At present, the extent to which the distress and anguish voiced by many Aboriginal people about the flag, its use and its future are being weighed in negotiations is opaque.”
The committee said an independent Aboriginal body with custodianship of the Aboriginal flag could be informed by a parliamentary inquiry to ensure its independence and transparency regarding its membership.
Compulsory acquisition drew “strong, largely adverse views”, it said, and many suggested that the preferred outcome was one in which Thomas voluntarily allowed the commonwealth government to acquire the copyright and/or existing licences through a process of negotiation.
“The committee … rejects calls for the commonwealth government to invoke its constitutional power to compulsorily acquire the copyright in the Aboriginal flag.
“As various submitters and witnesses told the committee, such an outcome would perpetuate the dispossession, injustices and racial discrimination endured by Aboriginal Australians for more than 200 years.”
There was no clear consensus about what to do in the event that a negotiated outcome could not be achieved, but evidence indicated broad support for ongoing recognition and compensation on just terms for Thomas.
“Despite differing views, evidence consistently supported use at no or low cost for Aboriginal people and organisations that seek to use the flag to advance the interests of Aboriginal people,” the report said.
“The Aboriginal flag tells a story of three intertwined but at times conflicting identities. It is at once the creation of an artist, a symbol of Aboriginal pride and struggle, and an official flag of Australia.
“For that reason, it is a flag quite unlike others.”