This week, Prime Minister Scott Morrison introduced the federal authorities had “freed the Aboriginal flag for Australians”.
After an in depth social media marketing campaign to #Freetheflag, the federal authorities has bought the copyright from Harold Thomas, the Luritja artist who created it greater than 50 years in the past. The deal reportedly value $20 million.
Learn extra:
Do not say the Aboriginal flag was ‘freed’ – it belongs to us, not the Commonwealth
The Aboriginal flag has lengthy been an emblem of resistance and unity for Indigenous folks in Australia. Though the copyright settlement is a sensible answer to a controversial drawback, not everyone is happy the federal authorities now owns the unique rights to breed the Aboriginal flag.
Has it actually been freed?
A combat to #FreetheFlag
Controversy over the flag erupted in June 2019. Clothes the Gaps, an Aboriginal-owned-and-led enterprise, obtained stop and desist letters from a non-Indigenous firm, WAM Clothes, demanding it cease utilizing the Aboriginal flag on its clothes.
Because the then-copyright proprietor, Thomas had granted WAM Clothes unique rights to be used of the flag on its clothes. This meant anybody else wanting to place the flag on clothes – even non-commercially – needed to get permission from the corporate.
Clothes the Gaps began a petition to #Freetheflag, which gathered greater than 165,000 signatures and high-profile supporters from throughout Australia.
Group anger grew when the AFL, NRL and Indigenous group teams have been additionally requested to pay for utilizing the flag, and in some instances, threatened with authorized motion.
In September 2020, a Senate inquiry started analyzing the flag’s copyright and licensing preparations. Within the meantime, Minister for Indigenous Australians Ken Wyatt was quietly negotiating with Thomas to buy the flag’s copyright.
Then within the lead-up to Australia Day this week, Morrison introduced the flag was now “freely out there for public use”.
What’s within the settlement?
The precise particulars of the settlement are confidential however, in accordance with the federal government, the settlement transfers the Aboriginal flag’s copyright to the Commonwealth. The settlement additionally contains:
all future royalties the Commonwealth receives from sale of the flag can be put in the direction of the continuing work of NAIDOC (the small print of this have but to be seen)
an annual $100,000 scholarship in Thomas’ honour for Indigenous college students to develop Indigenous governance and management
a web based historical past and training portal for the flag.
To make sure Aboriginal flags proceed to be manufactured in Australia, the present producers, Carroll and Richardson Flagworld, will stay the unique licensed producers and suppliers of Aboriginal flags and bunting.
However this solely covers business productions – people are free to make their very own flags for private use.
Learn extra:
How simple wouldn’t it be to ‘free’ the Aboriginal flag?
Thomas nonetheless has rights
Beneath the phrases of the copyright project, Thomas retains ethical rights over the flag.
This implies he nonetheless has the suitable to be recognized and named because the creator of the work, can cease another person being wrongly recognized because the creator of the work, and might cease the work from being subjected to derogatory therapy, which suggests any act which is dangerous to the creator’s repute.
Thomas may even use $2 million to ascertain a not-for-profit physique to assist the flag’s legacy.
Similar to the nationwide flag
The flag will now be managed in the identical means because the Australian nationwide flag.
This implies it will likely be free for anybody to make use of it in any medium and for any function (apart from making and promoting flags commercially). You possibly can place copies on clothes, sportsgrounds and articles, and you need to use the flag in any medium, comparable to on web sites or in artworks, together with having it tattooed in your physique.
Nonetheless, it is strongly recommended to observe the standard protocols for respectful use of the flag.
How free is the flag?
Regardless of the brand new provisions, some Indigenous individuals are sad management of the flag is now within the palms of the federal authorities relatively than an Indigenous-led physique.
Others have identified that if the flag is “free” for anybody to make use of, that is more likely to profit massive companies and off-shore producers utilizing low-cost labour to make clothes and merchandise that includes the flag, relatively than Indigenous-owned enterprises.
It’s attainable the flag is now much more free than the federal government suggests. As educational David Brennan factors out, below the Copyright Act 1968, if the Commonwealth owns copyright in a creative work, then it expires 50 years after the calendar yr by which the work was made. This contrasts with the standard time period of safety for inventive works, which is the lifetime of the creator and 70 years thereafter.
If that is right, it could imply that copyright within the flag (which Thomas created in 1971) truly expired on January 1, 2022, and the flag is now within the public area. This might throw into query the validity of the unique licence to Flagworld and the federal government’s capacity to eliminate royalties.
It might additionally imply Thomas’ ethical rights are extinguished, as they final solely so long as the copyright does.
With out seeing the phrases of the settlement, that are commercial-in-confidence, we can’t be sure. Clarification from the federal government could be welcome.
A closing twist
Earlier than he transferred copyright, Thomas says he created a digital illustration of the flag, and minted it as a non-fungible token (NFT).
NFTs are digital certificates secured with blockchain expertise, which authenticate a declare of possession to a digital asset. They’ve taken off within the artwork world, and are purchased and bought for tens of millions of {dollars}.
However all they’ll do is present proof of authenticity for a selected digital file. They don’t afford every other rights, comparable to copyright, and plenty of discover the excessive costs they command to be baffling. Others are involved by their huge carbon footprints. Thomas states he’ll maintain the NFT “on an ongoing foundation, on behalf of Indigenous communities”.
Thomas professes himself pleased with the end result, stating “the flag will stay, not as an emblem of battle, however as an emblem of satisfaction and unity”.
Nonetheless, the factor about flags is their which means is made by those that wave them, relatively than just by those that create them.
Isabella Alexander receives funding from the Australian Analysis Council.
