23 March 2020CopyrightRory O'Neill

Shopify must hand over Aboriginal flag seller’s details, rules judge

An Australian federal judge has ordered  Shopify to name the owner of a website accused of selling unlicensed Aboriginal flags.

The flag was adopted as an official flag of Australia in 1995 to represent the country’s indigenous population. But unlike most flags, rights to the design are not in the public domain or the hands of the government, but the Aboriginal artist Harold Thomas.

An Australian court ruled in 1997 that Thomas, descended from the Luritja people, was the design’s original author and copyright owner.

An Australian flag manufacturer,  Carroll & Richardson Flagworld, owns exclusive rights, granted by Thomas, to reproduce the design on flags, pennants, banners and bunting.

The Melbourne company is looking to sue the operator of the Free The Flag website, which it says has been selling unauthorised Aboriginal flags that infringe Flagworld’s exclusive rights.

The flag manufacturer has initiated discovery proceedings at the Federal Court of Australia, demanding that service providers PayPal, Vodafone, and Shopify, to hand over information concerning the identity of the person behind Free The Flag.

PayPal and Vodafone consented to hand over any information they had, including the name, email address, postal address of the Free The Flag domain owner.

The court has now ordered Shopify to do the same within 14 days of the March 19 order.

The term ‘Free The Flag’ has been used by Aboriginal business owners to express dissatisfaction with individuals and companies owning exclusive rights to the design.

The arrangement has been a source of controversy in Australia, after a non-Indigenous-owned business issued cease and desist letters to stop Aboriginal companies from using the design on their products.

The flags sold on the Free The Flag website, now inaccessible, bore Thomas’ design except it featured a yellow outline of Australia rather than a yellow circle.

Some of the flags also had the text ‘Free The Flag’ overlaid over the outline of Australia.

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