The licensing of the Aboriginal Flag by its designer and copyright owner, Harold Thomas, has been the cause of significant controversy in recent years. Specifically, the decision by Thomas to grant an exclusive, worldwide licence for reproduction of the Aboriginal Flag on clothing, physical objects and digital media to two specific companies has forced businesses and individuals to either pay a substantial licence fee to reproduce the Aboriginal Flag or cease to reproduce the flag entirely unless explicit exemptions are granted. This has led to ongoing calls for the Aboriginal Flag to be freed from the restrictions imposed by this licensing arrangement — culminating in a Federal Senate inquiry, the Select committee on the Aboriginal Flag. In anticipation of the final report of the findings of the Select committee, we wish to make this statement to clarify our position on the copyright of the Aboriginal Flag and how it relates to our cause — a proposal for an alternative flag of Australia.
It must be recognised that the controversy surrounding the licensing of the Aboriginal Flag is not a standalone issue but is the result of the inadequacy of existing Australian law. As the copyright owner of the Aboriginal Flag, Harold Thomas reserves the right to dictate how his flag design may be used by others. However, with very few limitations to the extent that copyright can be used to restrict the use of a creative work under Australian law, a strange scenario now exists in which the Aboriginal Flag is both a cultural icon recognised as an official flag of Australia that simultaneously requires the payment of a licence fee or explicit consent from the designer for every instance of its reproduction. This includes personal, non-commercial use of the Aboriginal Flag such as getting the flag as a tattoo. This has always been the case and has only now become contentious due to the decision by Thomas to grant certain companies the exclusive right to exploit his design commercially and thereby take action to actively prevent others from reproducing his flag design without paying a licence fee.
Existing Australian law provides important protections for creators that allow them to exert control over how their work may or may not be used. However, the dilemma now facing the Aboriginal Flag illustrates the inability of our current laws to differentiate between the infringement of copyright and the innate reproduction of creative works that forms an intrinsic part of human society. Frequently, copyrighted works become iconic symbols of cultural significance — their value is derived from the deliberate reuse of such works by members of a community and not simply the ingenuity of their creator alone. However, our current laws provide no mechanism to recognise and permit this usage.
Proposals to enable the free use of the Aboriginal Flag by the community include the government acquiring the copyright of the work (with or without compensation to the designer), declaring copyright of the Aboriginal Flag void (so that it becomes a public domain work) or negotiating a new licence agreement with the designer with licence terms that allow the flag to be freely reproduced. However, these approaches do nothing to address the underlying inability of Australian law to permit the appropriate reproduction of copyrighted works. Furthermore, such approaches constitute heavy-handed government intervention that overrules the inalienable right of creators to have ultimate control of their intellectual property. Such actions would set a dangerous legal precedent that would leave all creators vulnerable to losing rights to their work if the government were to intervene.
Establishing a “fair use” exception within Australian law would allow creators to retain the copyright of their work while permitting others to freely reproduce their work provided its use meets a certain standard of “fairness”. Fair use is a broad set of principles that requires it to be demonstrated that a certain reproduction of a copyrighted work is “unfair” rather than requiring individuals to seek explicit permission to reuse a copyrighted work regardless of the circumstances. Most importantly, fair use is universal and applies to all works protected by copyright. The legislation of fair use laws would automatically enable the Aboriginal Flag to be widely reproduced by the community without preventing the copyright owner from licensing the flag solely for commercial purposes.
Fair use has been enacted in multiple jurisdictions — most notably in the United States. To determine if the use of a copyrighted work is fair, the nature of the work, the extent of its reproduction and the commercial impact of its reproduction come into consideration. Another key factor is whether or not the reuse of a work is “transformative” or is used for a different purpose than the original work. In the case of the Aboriginal Flag, the manufacture of clothing, objects or media bearing the design of the flag may be considered fair use under this definition as this usage is substantially different to the use of the Aboriginal Flag as a banner or ensign. In the case of the Triple Union Flag, our proposal for an alternative flag of Australia that features colours and symbols used in the design of the Aboriginal Flag, the work can be considered transformative — drawing upon pre-existing works while being original in its own right.
A fair use exception is a balanced and sensible addition to Australian law that maintains the integrity of copyright protection while permitting the reproduction of works where it is fair to do so. It is also not a foreign concept. Of no less than eight government inquiries into fair use in Australia, six have recommended its adoption — each citing wide-ranging benefits for the nation. We encourage all political parties to consider the implementation of fair use in Australia as a potential solution not only to the dilemma currently facing the Aboriginal Flag but to the inadequacy of our current laws to recognise and allow for the reproduction of work that is constructive, transformative and culturally significant.