If you’re mad about some white people controlling the use of the Aboriginal flag, there are some things you should know. This is not a clear-cut case of white people trying to exploit Aboriginal culture or intellectual property for multiple reasons. (A disclaimer: I am not a lawyer, and no part of this article should be taken as legal advice.)
Unfortunately, Australian copyright law has never recognised a group of people as the owner of a creative work. It only has scope to identify an individual or a business as copyright owners. For example, your employer typically owns the copyright rights to anything you write or create as part of your usual work duties. I own the copyright rights to these words I have typed.
The Australian Copyright Act 1968 does not adequately protect the intellectual property of Aboriginal people. It does not allow the benefits from publishing and reproducing Indigenous Cultural and Intellectual Property (ICIP) to be easily transferred to, or shared with, all of the owners of that ICIP (being a group of people rather than an individual or a business).
In 1997 there was an attempt to place the Aboriginal flag under the protection of the Flags Act 1953, which meant our majority white Australian government would control how the flag is used.
Following this development, Harold Thomas*, the Aboriginal creator of the Aboriginal flag, claimed copyright ownership in 1997. Thomas accessed the simplest, most common and affordable form of intellectual property protection available to him to prevent the flag from landing in the hands of the Australian government.
Over 20 years later, Harold has licensed (not sold) the flag to WAM clothing, so they can reproduce and publish it on products in the specific category of ‘clothing’. I assume Harold has charged WAM clothing appropriately for this license because Harold is a smart man, and this is not the first time he has licensed his work.
'Don’t be mad at Harold Thomas, or even WAM clothing (this time). Be mad at the inflexibility and cultural inappropriateness of Australian copyright legislation.'
WAM clothing has chosen to exercise their exclusive right to reproduce the flag on clothing by requesting that other clothing manufacturers (including football codes and Aboriginal businesses, who likely never sought explicit permission from Thomas to reproduce the flag) cease their use of the flag on clothing products only, or engage WAM in a commercial contract.
Thomas’ choice to do business with WAM was perhaps ill-advised due to the licensee’s history of exploiting ICIP. While the owners of WAM were sharing the benefits of their new venture with Thomas, they were bullying Aboriginal artist Michael Connolly for drawing attention to their previous unethical practises.
Without Connolly’s activism, the owners of WAM might never have been investigated and subsequently fined by the ACCC, yet he received no formal acknowledgement for his work. I will always defend the self-determination of Aboriginal artists; hence, I support Connolly’s crusade but refuse to engage with the Aboriginal flag petition.
An Aboriginal man is benefitting from licensing of part of his copyright rights because colonial law does not allow a group of people to own and benefit from those rights. Don’t be mad at Harold Thomas, or even WAM clothing (this time). Be mad at the inflexibility and cultural inappropriateness of Australian copyright legislation.
Any campaigns or petitions against Thomas’s decision to license his creative work serve to undermine his autonomy, his right to earn an income from his artistic work, disrespect his intelligence and ignore the flaws with our legal system. Organisations such as ArtsLAW and Indigenous law firm Terri Janke and Company have long highlighted the insufficient legal protections for ICIP. This issue is not new, and it certainly doesn’t just affect our flag.
*Note: I do not agree with or endorse Thomas’ comments in his latest interview about ‘recently identified’ Aboriginal people, nor his implication that Aboriginal people living in remote communities and ‘in and out of jail’ are more authentic than other Aboriginal people, nor his doubts about the legitimacy of the Aboriginal identities behind Clothing the Gap and whether they actually donate some of their income to Aboriginal charities or causes. There are many reasons Aboriginal people might have ‘recently identified’. Most are the result of Australia’s various and ongoing processes of colonisation, genocide, and systemic erasure of Aboriginal identity.
Brooke Ottley is a qualified Aboriginal and Torres Strait Islander graphic designer with over 8 years industry experience. She has taught graphic design to adult learners since 2016, drawing exceptional feedback and praise from her students. She is also a successful copyright claimant for her own artistic works.
Main image: Supplied Brooke Ottley