15 October 2020CopyrightRory O'Neill

Australia faced with Aboriginal flag decision

An Australian Senate committee has warned the country’s government against seizing the copyright for the Aboriginal flag, saying it would create a “dangerous precedent”.

The Senate’s select committee on the Aboriginal flag was formed amid controversy over the right to use the Aboriginal flag, which was designed by indigenous artist Harold Thomas.

Thomas owns the copyright for the design, and has agreed a number of exclusive licences with private companies, including a 2018 agreement with non-indigenous company WAM Clothing.

WAM has since issued infringement notices to small Aboriginal-owned businesses, as well as the country’s National Rugby League and Australian Football League.

The Senate committee’s report noted that WAM owner Ben Wooster was previously the sole director of a company fined $2.3 million for selling fake Aboriginal art.

Clothing the Gap, an Aboriginal business accused of infringement by WAM, has formed part of the Free the Flag campaign. The group called on the Australian government to use its constitutional powers to compulsorily acquire the copyright for the design to ensure open access.

But the committee said a compulsory acquisition would “perpetuate the dispossession, injustices and racial discrimination endured by Aboriginal Australians for more than 200 years, and establish a dangerous precedent in circumstances where much work has been undertaken to strengthen protections for Indigenous artists”.

The committee instead urged the government to seek a negotiated solution with Thomas and his exclusive licensees.

The report envisaged a model whereby an independent selected body would have responsibility for making decisions about the flag’s future use.

But the Labor Party, which is in opposition, said if negotiations are unsuccessful the government should invoke its constitutional right to acquire the copyright for the flag.

“The purpose of any such acquisition should be limited to allowing the collective free use of the flag and its design for Aboriginal individuals, communities and organisations as well as the general public for non-profit purposes,” the Labor Party statement said.

“It is clear that the conduct of WAM Clothing and its approach to enforcement of its rights as a licensee is a significant contributor to the harm and distress experienced by Aboriginal people,” it added.

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