#FreeTheFlag Explained
You may have heard...
...without formal permission, Aboriginal Australians cannot freely reproduce the very thing designed to represent them… or at least without getting sued.
#FreeTheFlag from WHAT and WHO?
It depends on your definition of ‘free’.
For those on board with the #FreeTheFlag movement, the Aboriginal flag needs to be set free from the constraints of copyright belonging to a Luritja man and artists, Harold Thomas.
As the private owner, Thomas controls the rights for it to be reproduced, along with the other companies he has struck a deal with over the years.
The most recent is WAM Clothing, which was granted worldwide exclusive rights to use the Aboriginal flag on clothing and digital media in 2018. This is particularly controversial as WAM is a non-Indigenous-owned business and the owner, Ben Wooster, was called out by the Australian Competition and Consumer Commission (ACCC) in 2015 for selling ‘fake’ Indigenous art.
Overall, there are three elements which need to be taken into account to #FreeTheFlag:
1. The copyright (which belongs to Thomas).
2. The existing licences (which belong to WAM, Gifts Mate and Flagworld).
3. The right to give further licences.
Being one of the only flags in the world facing a legal battle of this kind, the Aboriginal flag controversy problematises the Australian copyright law. Being designed to remunerating authors, it fails to account for items, such as the Aboriginal flag, which, as a cultural and social icon, has arguably become more than a piece of art.
How did this happen?
Created with: visme.co
Created with: visme.co
@lifeofrubii
@lifeofrubii
What's #FreeTheFlag all about, anyway?
Over the past year, WAM Clothing has issued cease-and-desist letters to various companies for not paying royalties. This includes Aboriginal-owned social enterprise and fashion label Clothing the Gap, which has since gone on to launch the #FreeTheFlag campaign.
Many organisations have shown support to this movement - including the AFL, which also received a notice letter from WAM and therefore decided to boycott the flag in the 2020 Sir Doug Nicholls (Indigenous) round.
However, this (‘boycotting’) comes at another cost: the vanishment of the Aboriginal flag from the sporting landscape and other spaces.
Gunditjmara woman and managing director/founder of Clothing the Gap, Laura Thompson, believes the lack of exposure and visibility the flag is currently receiving is yet another form of oppression.
Hear from Thompson who explains why the #FreeTheFlag campaign came about and what it hopes to achieve.
Q&A with Laura Thompson
Laura Thompson campaigning to free the Aboriginal flag. PHOTO: @clothingthegap
Laura Thompson campaigning to free the Aboriginal flag. PHOTO: @clothingthegap
@lifeofrubii
@lifeofrubii
How can it be set free?
Well, it’s complicated and there are a couple of potential solutions (if, of course, you believe it needs to be set ‘free’ in the first place).
As far as acquisition goes… broadly speaking, there are two pathways.
The first is voluntary acquisition, which Laura Thompson touches on in the recording.
This means, if Thomas as the copyright holder and other licence holders agreed, the Government could buy the existing copyright and Thomas would be compensated.
Partner of FAL Lawyers Peter Francis, who is working with Clothing the Gap on the #FreeTheFlag campaign, said there’s another approach available: compulsory acquisition from the Government. This is a more forceful approach to negotiating an agreement – and could be considered an appropriation of Aboriginal property rights, taking copyright control away from Thomas and giving it to the Government.
Another option is litigation.
Francis said some possible arguments may include:
1. The right to use the flag already exists because it was created to be used by the people. It’s valued as a flag – not as a piece of art or anything else.
2. Two people - Thomas and the Governor-General – can’t both have exclusive rights. This argument bears in mind the flag is currently controlled (and ‘protected’) by the Copyright Act 1968 and Flags Act 1953. One of the statutes has to prevail.
As Francis said, “you’re either exclusive or you’re not”.
3. The Commonwealth has inadvertently acquired the copyright – as the Governor-General wouldn’t be able to exercise copyright power if it wasn’t already considered the copyright owner.
To date, the Governor-General has control over the use of the flag (including the right to reproduce it). This argument implies: some power has already been taken from Thomas.
How effective has the #FreeTheFlag movement been… so far?
There’s no doubt the #FreeTheFlag movement has helped raise awareness and put pressure on the Government.
While there’s no way of knowing just how successful the campaign will be at this point, nearly 145 thousand people have signed the Change.org petition and the movement has sparked a Senate inquiry looking into what the Government can do to ensure “fair use of the Aboriginal Flag design by the Aboriginal and Australian community”.
The Select Committee is expected to hand down its findings on October 13.
WAM Clothing did not respond to request for comment before deadline.
