Copyright disputes are often linked to larger policy questions and a recent Australian copyright dispute is not a stranger to this trend. In late 2018, Harold Thomas, the copyright owner of the Australian Aboriginal flag, entered into licensing agreement with Wam Clothing, which is not Indigenous owned. Recently, Wam Clothing has sent cease-and-desist letters to an Aboriginal health group, Spark Health, over their use of the Aboriginal flag. Spark Health has asked for legal advice.
This case is indicative of the broader question about how to protect Aboriginal Traditional Knowledge (ATK) and Aboriginal art. Some argue currently existing intellectual property mechanisms are enough. For example, Canadian law permits certification marks to certify the “class of workers”. The Inuit Art Foundation uses the “igloo mark” to certify authentic Inuit art.
Conversely, others suggest traditional IP laws are not enough because of intellectual property’s demand for originality and individuality, they have argued for sui generis protection for ATK. Others suggest mandatory consultation with Native communities.
Pertaining to this specific conflict, activists and politicians have offered various solutions. One Member of Parliament, Bob Katter, suggested that the Australian government should claim copyright ownership of the Aboriginal flag. Similarly, Fionna Phillips, an Australian copyright lawyer, has suggested that the Australian government should buy the rights from Thomas on “public policy grounds”. However, others contest this deprives Thomas the right to profit from his design. A Labour Party spokesperson said it was important that the flag remains “the property of the First Nations people.”
It will be interesting to see how the dispute unfolds. Will public opinion play a role in this dispute? In 2006 after public outrage, Aveda decided not to trademark the term “Indigenous”. Will this dispute be settled out of court? If heard by a court, will there be interventions by various activist groups? Finally, will Parliament enact any new laws in response to this situation?
Author: Margot Mary Davis