Oct 15, 2020

What next for the Aboriginal flag?

The Aboriginal flag represents the Aboriginal Australians and holds special legal and political status for the Aboriginal people. Unlike many official national flags, the Aboriginal flag is not owned by the Australian government but instead owned by the Aboriginal artist named Harold Thomas who created the flag for the people’s civil rights movement in 1971.

Issues have recently arisen concerning the copyright and licensing arrangements of the Aboriginal flag as people are confused as to who is able to freely use the flag’s design without repercussions. In 2018, WAM Clothing, a non-indigenous company was granted an exclusive licence to use the flag design on its clothing and other types of media. WAM has since brought several infringement claims against not for profit Aboriginal organisations which has raised concerns that WAM’s enforcement of its rights under the license is discouraging the symbolic use of the flag itself.

The Federal government in Australia has attempted to invoke its constitutional power to acquire the copyright that subsists in the flag design. However, a recent Senate inquiry has rejected the government’s requests believing that such a move by the Australian federal government would only promote the injustice that the Aboriginal people have endured so far: a direct appropriate of a cultural icon, despite that appearing to be for entirely noble reasons. It is of major importance that the dispute regarding the Aboriginal flag needs to be resolved efficiently, otherwise it is feared that many Aboriginal people will abandon the flag which has had a deep significance to the Aboriginal people for many years.

Negotiations are taking place between finding a balance of the copyright owner of the flag, its exclusive licensees and the Aboriginal people. No resolution has been agreed to date.

If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com

Posted by: Tom Staveley in: Copyright, EU/International

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