just terms

As you know, the Aboriginal Flag has been in the news a fair bit – the AFL even had to abandon plans to paint representations of it on footy grounds for the Indigenous Round: here, here and here.

Mr Thomas, the acknowledged author of the flag’s fantastic design,[^f2] has licensed it to various companies for different types of use including WAM Clothing. WAM Clothing has been making headlines aggressively enforcing its rights, including threatening the AFL for copyright infringement.

Now, the Senate has established a Select Committee to investigate what is to be done!

The terms of reference are (in full):

That a select committee, to be known as the Select Committee on the Aboriginal Flag, be established to inquire into and report on current and former copyright and licensing arrangements for the Aboriginal flag design, with particular reference to: 

a. who benefits from payments for the use of the Aboriginal Flag design and the impact on Aboriginal organisations, Aboriginal communities and the broader Australian community of the current copyright and licensing arrangements; 

b. options available to the Government to enable the Aboriginal Flag design to be freely used by the Australian community, including:

i. negotiated outcomes with licence and/or copyright holders:

ii. the compulsory acquisition of licences and/or copyright,

iii. ways to protect the rights and interests of the flag’s legally recognised creator Mr Harold Thomas; and

c. any other matters relevant to the enduring and fair use of the Aboriginal Flag design by the Aboriginal and Australian community.

Click the terms of reference here.

The fun part: if you are wanting to make a submission, you need to get it in by 18 September 2020 as the Committee is due to report by 13 October.

We thought we had come a long from the days when the Commonwealth Government (in the guise of the Reserve Bank) could appropriate David Malangi’s artwork for the wonderful design of the (now defunct) one dollar note; Johnny Bulun Bulun and a later group of artists including George Milpurrurru rightly successfully asserted their copyrights over blatant infringers.

Now, however, it seems many people think Mr Thomas shouldn’t have the same rights.

While Minister Wyatt ruled out buying the copyright last year, this year it seems that Mr Thomas might be refusing to sell or this Senate inquiry might be upsetting the negotiations.

Placitum (xxxi) of s 51 of the Constitution does give the Commonwealth power to compulsorily acquire property on just terms:

(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;

and, of course, placitum (xviii) confers power to make laws with respect to, amongst other things, “copyright”. It seems difficult to argue that a law to acquire one person’s copyright would not be a law with respect to copyright.[^f1]

Of course, an assignee of copyright takes subject to any licences that had previously been granted (and are still on foot): Copyright Act 1968 s 196(4). So, the Commonwealth would also have to have some power under the licence to Wam Clothing to terminate it or, presumably, acquire its property on just terms too.

[[^f2]: According to Shephard J’s judgment in Thomas, the Governor-General proclaimed the artistic work to be the flag of the Aboriginal People under s 5 of the Flags Act, back in July 1995. It seems from Sheppard J’s judgment, Mr Thomas came up with the design for use at the Aboriginal Day rally in Adelaide in 1971 “off his own bat”.

[^f1]: There are also the murky possibilities of placitum (xxvi).