Australian Aboriginal Flag Mess Is Getting Worse -- All Thanks To Copyright

from the don't-give-them-ideas dept

One of the longer-running sagas here on Techdirt concerns the disgraceful situation regarding the flag of Australia's Aboriginal peoples. Mike first wrote about this in 2010, and again in June of this year. The problem is that what is now widely regarded as the flag of Australia's First Nations was designed fairly recently by a private individual, not a group representing those peoples, or some official Australian government body. The designer, Harold Thomas, signed a licensing deal with a clothing company, Wam Clothing, which imposes hefty fees for the use of the design, even on non-profit health organizations giving away items that bear the flag:

In August, Wam Clothing charged the Indigenous Wellbeing Centre in Bundaberg AU$2,200 [about $1500] to use the flag on T-shirts it had given to patients who came into the clinic for a preventive health check.

According to an article in the Guardian, the licensing agreement between Wam Clothing and Harold Thomas specified that the design may be used by Aboriginal people for non-profit purposes. However:

Wam Clothing has said the terms of any licence agreements are confidential and legally privileged and only for the benefit of the parties to that agreement. They said the documents seen by Guardian Australia may have been fraudulently created.

Wam Clothing claims that it is the exclusive worldwide licensee for the use of the Aboriginal flag not just on clothing, but also on digital media. To prove the point:

In mid-August, the company issued a "cease and desist" notice to the creator of a Facebook discussion page called "New Aboriginal flag or flags discussion" because its "use of the digital image of the Aboriginal flag on social media platforms are [sic] being used in a negative light".

Copyright and secret deals have made the situation so ridiculous that in June 2019 the Australian Senate passed a motion calling on the national government to do all it could to "ensure that all First Nations peoples and communities can use the flag whenever they want without cost or the need for consent". More recently, the Australian MP Linda Burney called for the government there to sort things out:

"This situation is untenable," Burney said. "It’s unthinkable that the use of the Aboriginal flag is now governed by a secret agreement at the discretion of a for-profit company.

"It is a discredit to the flag's history and the strength it represents."

This is not just about copyright, or the rights of Australia's Aboriginal peoples. For Burney, the issue is personal:

"Like so many proud Aboriginal people, I've got a tattoo of the flag. What are they going to do? Try and cut it out of me?"

Probably best not to give them ideas, Linda…

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: aborigine, australia, copyright, flag, flag copyright, harold thomas
Companies: wam clothing


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  • icon
    That One Guy (profile), 18 Sep 2019 @ 5:33pm

    'Oh that? Yeah, we replaced it.'

    It would be a huge freakin' hassle but at this point I'd say the best course of action, barring the government coming in and revoking the copyright entirely and placing it in the public domain(as it rightly should be) would be for them to issue a call for any and all artists/designers to come up with a replacement flag, with a monetary reward for the winner in exchange for the winning flag to be made public domain and available for all.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2019 @ 7:12pm

      Re: 'Oh that? Yeah, we replaced it.'

      Can't see that happening, the LNP here is the best party donations can buy (Wam hands over a few brown envelopes...oops, donations, and Scummo is your man) and besides think of the tax they would lose if it was public domain.

      reply to this | link to this | view in chronology ]

      • icon
        Hugo S Cunningham (profile), 18 Sep 2019 @ 7:43pm

        Re: Re: 'Oh that? Yeah, we replaced it.'

        The USA had several flags before they gave preference to the stripes and rectangle-of-stars. The others are still seen from time to time.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2019 @ 5:50pm

    Another issue with copyright? Must be a day that ends with "y" again...

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 18 Sep 2019 @ 7:33pm

    When has copyright ever made anything better?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 18 Sep 2019 @ 7:48pm

      Re:

      Depends on who you are, it's been great for whole swaths of greedy, control-freak, and/or terrible people.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2019 @ 8:28pm

      Re:

      But don't you see? Based on testimony from antidirt/John Smith/out_of_the_blue, surely creators would create less if copyright lasted 50 years after their death instead of 70. Think of the 20 years worth of content their corpses would refuse to create!

      /sarc

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 19 Sep 2019 @ 3:52am

        Re: Re:

        "Based on testimony from antidirt/John Smith/out_of_the_blue, surely creators would create less if copyright lasted 50 years after their death instead of 70. Think of the 20 years worth of content their corpses would refuse to create!"

        Oh, most of us have seen Baghdad Bob make those claims every now and then, but what really gets to me is that said claim isn't the most demented argument he has.

        So far the preponderance of evidence rather suggests that a few measly years after copyright has been granted to a work that work will end up Disney Vaulted. Making copyright the main brake on cultural development and distribution around.

        reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 18 Sep 2019 @ 9:33pm

      Re:

      When has copyright ever made anything better?

      It works as intended - enriching corporations and censoring creative works. It's making Corporations Great Again!!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2019 @ 10:44am

        Re: Re:

        It works as perverted

        FTFY

        Copyright was not intended to work this way. It has been perverted by moneyed interests into the abomination it now is.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 19 Sep 2019 @ 5:27pm

          Copyright was intended to enrich those who were already wealthy/famous/powerful. That corporations gained the ability to own and enforce copyrights is merely an extension of that original intent.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 20 Sep 2019 @ 3:30am

          Re: Re: Re:

          "Copyright was not intended to work this way. It has been perverted by moneyed interests into the abomination it now is."

          Ehh...nope.

          Copyright was always intended to work this way. All you need to do is read the history of it's inception in the 17th century UK when the original bills were debated and lamentably accepted after minor amendments by the UK parliament.

          If anything the original text and justification of copyright was rather more refreshingly honest without including ANY of the later tacked-on propaganda spin of "for the authors" or "for the public good".

          Copyright was always meant to be a protectionist tool exclusively catering to the heaviest financial interests at the cost of authors and the public.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2019 @ 11:46pm

      Re:

      Surely you jest? Have you watched a single commercial movie, listened to a single commercial song, or read a single commercial book -- meaning, not directly released into the public domain -- in recent years?

      You take these things for granted, without evidently realizing that none of these would exist in anything resembling their current form, were it not for copyright law.

      reply to this | link to this | view in chronology ]

      • identicon
        MathFox, 19 Sep 2019 @ 12:41am

        Re: Re:

        I do listen to commercial songs; I also do listen to local amateur bands. The quality of some of the amateur bands makes me wonder why they are not known outside their hometown... (For some I know they don't want to accept the lousy deals record companies offer them.)

        Removing the gate keepers provides more diversity. Reducing copyright in duration would make (pop-)culture more widely available. (A lecture on music of the '80s would be more interesting if the presenter was allowed to use song fragments without any restriction.)

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2019 @ 4:57am

        Re: Re:

        Have you listened to tracks available on Jamendo, Watched videos on YouTube or read or listened to any of the authors publishing their works on the Internet. There are works of the same quality level available under CC licenses all over the Internet. So the main purpose of copyright, transferring control of a work from an individual to a corporation is no longer needed to gain distribution and an audience.

        It is even possible to build a large enough audience to gain enough patrons from that audience to be able to go full time creating new content without having to worry about the obsessive control over copies of the work so beloved by the old school publishers, labels and studios. So no, copyright is not needed to further the creations of new works, at least not in its current strongly protective of commercial interests form.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2019 @ 5:38am

        Re: Re:

        How's that Paul Hansmeier defense fund coming along, bro?

        reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 19 Sep 2019 @ 9:53am

        none of these would exist in anything resembling their current form, were it not for copyright law

        You literally can’t prove that.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2019 @ 10:47am

        Re: Re:

        That's utter bullshit. Even if we grant that some level of protection really does help spur creative development as the creators of copyright intended, what copyright has become is nothing less than a means to lock down everything possible and charge the nation for its "culture" for far longer than is necessary.

        It's too bad the argument has boiled down to "abolish copyright!" versus "copyright4ever!". If we reverted to the original lifespan of copyright and legislated that as the permanent limit we'd be in far better shape.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 20 Sep 2019 @ 3:37am

        Re: Re:

        "Surely you jest? Have you watched a single commercial movie, listened to a single commercial song, or read a single commercial book -- meaning, not directly released into the public domain -- in recent years?"

        In recent years? Ah, when I, like so many others, started going to various public channels for all my entertainment needs because the few examples of commercial-grade entertainment turned out to be overhyped crap created by a tired old hollywood still churning out fossilized old templated tropes?

        Copyright was never required to create great culture, as demonstrated very well by 90% of what we today consider the great classics. The preponderance of the evidence rather suggests that every nation to adopt copyright lessened it's output of culture significantly.

        "You take these things for granted, without evidently realizing that none of these would exist in anything resembling their current form, were it not for copyright law."

        Shakespeare, Mozart, Beethoven, Wagner, Voltaíre, and every other creator before the 17th century want a word with you about their supposed non-existence.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2019 @ 6:37am

    Abolish Copyright

    Period.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2019 @ 7:22am

    Anybody know where to find open source guillotine designs?

    reply to this | link to this | view in chronology ]

    • identicon
      urza9814, 19 Sep 2019 @ 12:00pm

      Re:

      There's a bunch on Thingiverse. I think they're mostly miniatures but it should be easy enough to scale the model up to full size. Or even American size ;)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2019 @ 8:03am

    forget copyright, abolish Harold Thomas

    Harold Thomas sounds like a parasite. If there were such non-profit use terms in the licensing agreement, as was stated in the Guardian article, he could personally step up and say so. More to the point, though, what kind of strange legal document would contain language that pertains to a wide swath of the Australian population, and yet be hidden behind the confidentiality of said agreement, so that none of those people know it's there? So fuck Harold Thomas, and fuck Wam Clothing. OH, and uhhh, maybe the Aboriginal peoples shouldn't have adopted a piece of copyrighted art as their flag. Just sayin'.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2019 @ 8:43am

      Re: forget copyright, abolish Harold Thomas

      OH, and uhhh, maybe the Aboriginal peoples shouldn't have adopted a piece of copyrighted art as their flag.

      Other than taking over some ancient flag, how do they get a flag that is not covered by copyright and not in use elsewhere? With a new flag the best they can do is get one released under CC0.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2019 @ 10:49am

        Re: Re: forget copyright, abolish Harold Thomas

        Maybe create their own like every other nation?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Sep 2019 @ 10:58am

          Re: Re: Re: forget copyright, abolish Harold Thomas

          And the creator(s) of that flag or the organization they work for will own its copyright, so they will have to ensure that it is properly licensed or under a CC license.

          reply to this | link to this | view in chronology ]

          • identicon
            urza9814, 19 Sep 2019 @ 12:09pm

            Re: Re: Re: Re: forget copyright, abolish Harold Thomas

            If that organization is their own government, then that shouldn't be a problem.

            This isn't a particularly uncommon situation. Granted, a national flag could be a bit different since that nation likely wouldn't have copyright laws in place at the time the flag was created. But states/provinces usually have flags, as do many cities. The local town council doesn't have these kinds of issues when they decide to change their flag design....probably because they aren't grabbing some random commercial design that's already been created, they solicit ideas then hire their own artist to complete it, or they get some artist to submit a design who will also sell or donate the rights to the town.

            reply to this | link to this | view in chronology ]

            • icon
              nasch (profile), 19 Sep 2019 @ 12:50pm

              Re: Re: Re: Re: Re: forget copyright, abolish Harold Thomas

              If that organization is their own government, then that shouldn't be a problem.

              I don't think there is such a government. My understanding is this is flag to represent a group of people, not a nation or any other type of autonomous political unit.

              reply to this | link to this | view in chronology ]

    • identicon
      Agammamon, 19 Sep 2019 @ 11:03am

      Re: forget copyright, abolish Harold Thomas

      None of the language in the document pertains to a wide swathe of the Australian population as such.

      According to what I'm reading, this is a private contract for one company to exploit, on the behalf of its creator, that creator's creation. And there is supposedly a clause allowing non-profit exploitation by third parties.

      This isn't 'the' actual Aboriginal Flag - there is no such thing. The Aborigines weren't even a cohesive whole until well after Europeans showed up and they had to band together to present a unified front to the Australian nation. This is just something someone created for his own use that all these other people liked and thought caught their zeitgeist well enough to adopt.

      But not well enough to offer to buy the rights off the guy.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2019 @ 2:10pm

        Re: Re: forget copyright, abolish Harold Thomas

        The "wide swath" would be the third parties. Perhaps just "swath", not necessarily "wide".

        The point, generally, is that if there's a private contract between two entities — the creator/licensor of the copyright artwork (Thomas), and the licensee of the artwork (Wam Clothing) — and that contract actually contains (not just "is alleged to contain") a clause allowing non-commercial use by qualifying third parties (Aboriginal peoples), it seems odd that neither the licensor nor the licensee want to actually come out and say that. Because wouldn't you think the third parties should know about it? Nahhh... That would make too much sense, wouldn't it?

        I can see how the licensor might not want to draw attention to the fact that qualifying people can use something they're paying for without charge, but it seems peculiar that the licensor who would have been the party responsible for the inclusion of said clause in the first place would have nothing to say about it.

        reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 19 Sep 2019 @ 12:26pm

    Wam Clothing has said the terms of any licence agreements are confidential and legally privileged and only for the benefit of the parties to that agreement.

    Well, if that’s true, then you shouldn’t expect others to abide by the terms of your license. Nor should we be expected to take your word for what the relevant terms are. Just release a redacted copy of the contract that removes personal information and the terms of compensation for the license and there shouldn’t be a problem.

    reply to this | link to this | view in chronology ]

  • identicon
    Châu, 20 Sep 2019 @ 4:46pm

    Simple Solution

    Easy use Prime Minister power revoke flag copyright for public benefit, make it public domain.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 20 Sep 2019 @ 6:22pm

      Re: Simple Solution

      Easy use Prime Minister power revoke flag copyright for public benefit, make it public domain.

      Does the Prime Minister have that power?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Sep 2019 @ 9:00pm

        Re: Re: Simple Solution

        Copyright is a system, monopoly, what-have-you granted by the government. Wouldn't the government have the power to revoke it?

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 23 Sep 2019 @ 7:56am

          Re: Re: Re: Simple Solution

          Wouldn't the government have the power to revoke it?

          Yes, but it sounds like the sort of thing Parliament would have to do, not just the Prime Minister. I know in the US, it would take an act of Congress, but I'm not as familiar with the parliamentary system.

          reply to this | link to this | view in chronology ]


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