Tensions rise over use of Aboriginal flag design after testy exchanges during inquiry

Copyright laws for use of the Aboriginal Flag has become a contentious issue (AAP Image/Mick Tsikas) Source: AAP

The copyright and licensing concerns circling the Aboriginal flag are being examined by a parliamentary inquiry as the government explores options to ensure its "fair use".

A company with exclusive licensing rights to the Aboriginal flag has confirmed it is holding discussions with a federal government agency over the possibility of handing over control of the design.

WAM Clothing fronted a parliamentary inquiry on Monday that examined the flag's copyright and licensing arrangements and options open to the government to ensure its “fair use”.

The business has come under fire for sending cease and desist letters to those who use the flag on clothing without paying royalties.

WAM Clothing director Semele Moore said talks with the National Indigenous Australians Agency were ongoing but remained tight-lipped on any further details.

“WAM has entered into discussions with the National Indigenous Australians Agency in relation to the acquisition of the copyright in the Aboriginal flag,” she told the committee.

“Those discussions are ongoing. Harold has specifically requested those discussions remain confidential and we respect Harold’s request.”

Labor Senator Pat Dodson.
Labor Senator Pat Dodson.

The clothing company secured the exclusive licensing rights from Luritja man and Indigenous artist Harold Thomas, who designed the flag in 1971 and is its copyright holder.

Mr Thomas has granted rights to three copyright licencees, which include WAM Clothing, souvenir company Gifts Mate and another business called Flagworld.

Labor Senator Patrick Dodson repeatedly questioned the WAM Clothing director during the hearing on how many organisations had been sent cease and desist letters regarding the flag’s use.

The Select Committee on the Aboriginal Flag is seeking to establish who is financially benefiting from the existing copyright and licensing arrangements and the options the Government has to "enable the flag to be freely used by the Australian community".

A petition calling for a change to the licensing agreement around the Aboriginal flag has attracted more than 140,000 signatures online.

The Metropolitan Local Aboriginal Land Council told the committee it had stopped purchasing clothing bearing the Aboriginal flag because of the licensing restrictions.  

"Sadly what’s happened to the flag is about greed and about other people making money for the symbolism that certainly represents Aboriginal people,” Aunty Ann Weldon told the hearing.

“First and foremost, this country needs to acknowledge that this is our flag that belongs to Aboriginal people across our country.”  

Ms Moore was unable to tell the inquiry how many companies had paid to use the flag design, or how many had been asked to stop using it.

She said such details were confidential when questioned specifically about Aboriginal-controlled organisations being told to stop using the flag.

“I’m sorry Senator but that would be confidential,” she told the committee.

"I don't have the information (with me) and no I don't intend to submit it.”

Controversy surrounding the flag was reignited after negotiations between the AFL and WAM Clothing broke down over the flag’s use during the AFL's Indigenous Round last month. 

Indigenous Australians Minster Ken Wyatt is understood to have started talks on the possibility of buying the rights to the flag.

Copyright law expert Michael Green earlier told the committee the government could negotiate with Mr Thomas about splitting the copyright while keeping the current commercial rights in mind.

"You can slice copyright in a number of ways," he said.

"The problem is really not one of copyright but a more difficult question of cultural appropriation."

Another legal expert, Dr Fady Aoun also told the committee the flag’s public significance meant the concerns being examined were much broader than simple copyright and contractual matters.

“This issue transcends copyright issues – it goes to social, political and moral issues,” he told the committee.

Mr Wyatt has promised to reach a resolution that respects the wishes of the flag's artist as well as the rights of all Australians.

Labor is also pursuing legislation that would compel the minister to negotiate with Mr Thomas.

National Indigenous Australians Agency CEO Ray Griggs told the committee the organisation was working through discussions to resolve concerns around the flag's copyright arrangements in a timely and fair manner.

"It has been an ongoing discussion, particularly with Mr Thomas," he told the hearing. 

"The government’s interest is to end the divisiveness around this issue that's the primary objective."

The Australian government granted the Aboriginal flag status as an official "Flag of Australia" in 1995.

The University of Sydney’s professor Kimberlee Weatherall said any moves to change licensing arrangements agreed by Mr Thomas would need to compensate the flag's creator.

“If the Commonwealth were to wish to acquire or change the arrangements I understand it would be under obligation to compensate,” she told the committee.

Ben Wooster, who is a director of both WAM Clothing and Gifts Mate, told the committee the companies were aware of the importance of the Aboriginal flag to the Australian community. 

The inquiry is due to report back next month.

With additional reporting by AAP

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