Indigenous people are a collective people. We are of the land and we are responsible for our people and communities. Culture is found in our art, ceremony, stories, songs and dance passed on for generations to the community — not any one individual. Our culture is centred on our kinship structures and the responsibility that entails. This responsibility is sacred.
In a colonised country, the integrity of that culture of community against individualism and capitalism is of the utmost importance, which is why there is a real sense of betrayal and grief in the Indigenous community at the moment. This follows the licensing of the copyright for the Aboriginal flag by designer Harold Thomas to WAM Clothing, a Queensland based non-Indigenous corporation. Not only was this licence granted to a non-Indigenous corporation, but it was done so exclusively, to the detriment of the collective — the community.
Our symbol of resistance, our symbol that we have used to differentiate ourselves from the homogenous collective of Australia has been exploited for individual gain in the name of capitalism — the antithesis of our culture. To rub salt in the wound, WAM Clothing has started shooting off cease and desist letters to Aboriginal businesses who create products that feature our flag.
Of course, the exploitation and commoditisation of Indigenous culture is rife and has been ongoing. However, when a collective and community symbol is exploited in this manner so counter to cultural protocol, it highlights once again the unethical practices of using copyright law to claim ownership over collective Indigenous property.
Why is Indigenous cultural and intellectual property subject to laws that fail to honour culture and communal ownership? Why is the collectively owned Aboriginal flag treated any differently to the Australian flag, which can be commercialised without permission provided it is not imported? Why then, is one non-Indigenous corporation able to claim ownership over the licence to use our symbol?
Under current intellectual property law, any Australian individual or company can apply for rights to Aboriginal products or language — referred to as Indigenous knowledge — and we have seen this in practice. With the burgeoning “alternative health” market, ancient remedies have been sought out and capitalised on by unscrupulous corporations. This happened with the trademark of our traditional medicine Gumby Gumby.
Now that the growing resistance to colonial oppression is gaining more attention and support from the non-Indigenous community thanks to social media, WAM Clothing has made a perfectly legal commercial decision to seek exclusive rights to use the flag. While legal, this is neither moral nor ethical.
The legal system in Australia, particularly with the protection of Indigenous cultural intellectual property, is out of touch with the nature of Indigenous culture and simply asserts the values of the colonising force. The legal system predominantly supports the structures established to ensure market, trade and profit. Despite clear evidence of countless copyright breaches involving mass production of Indigenous art and other products, the legal system has failed to adequately address this in order to protect the Indigenous community. But when it comes to the exploitation of our culture, our community and our vulnerability, non-Indigenous communities have the advantage and resources to use the copyright laws to shut us out.
It is unsurprising to find out that Ben Wooster, part owner of WAM Clothing, has a long association with Harold Thomas spanning 10 years, through his other business Birubi Art. Birubi Art has sold tens of thousands of Aboriginal boomerangs, bullroarers, didgeridoos and message stones throughout Australia under the representation that such products were “genuine” and “Aboriginal”. However, those products were mass produced in Indonesia. Birubi Art has since gone into administration, after the Federal Court found against it for false and misleading statements and breaches of Australian consumer law.
So with Birubi Art under administration for unethical conduct that breached Australia’s consumer standards — not to mention the abhorrent breaches of Indigenous intellectual property — Wooster pops straight back up as co-owner of WAM Clothing to hold the exclusive licence to use the Aboriginal flag.
The market requires significant reform to stamp out the clear exploitation of culture by non-Indigenous companies who have no connection to community and do nothing to give back to the communities they make a profit from. Suffice to say, the community is reeling, feels betrayed by Holt, and there will likely be challenges to this exclusive licence given it is a significant departure from culture and cultural protocol.
As if our original Australians have not suffered enough. Is there any way remaining in which we haven’t stitched them up?
How about crowdfunding the buy-back of the copyright? Surely WAM would be open to taking a quick profit for nil effort. It’s pointless talking ethics with these players, often money alone can resolve a matter.
The Aboriginal flag should have the same status as the ‘official’ Anglo Australian flag – not available for commercial exploitation. What other important cultural things will be copyright next?
Sorry, but am I missing something here. The designer of the flag and owner of its copyright chose to sell an exclusive license to WAM Clothing, possibly for a truckload of cash along with an ongoing royalty stream. and it’s all WAM Clothings fault??
The buck surely stops with Harold Thomas and him alone. He sold the license, and the fact that he sold it to someone who has a business legacy that appears to show a clinical disregard for the truth, does makes it a questionable moral decision…but it was a decision of and by Mr Thomas, who has used non-traditional law to make a quid out of it, as is his right. Blame him and him alone, and don’t try to come up with some convoluted logic that apportions most of the blame to the ‘colonisers’.
Yes, you are missing something very important, two things really:
First, no-one is letting Harold Thomas off the hook, because of course he’s made a deeply immoral decision there. I think that’s why the author say how betrayed by him the community feels.
And second, that immoral decision by Harold Thomas in no way let’s the legal system off the hook for failing to protect the Aboriginal community from such an immoral decision. That’s hardly a new thought: no matter what wrong-doing a personal engages in, it is always their fault for doing so. Whether we’re talking about unsolicited phone calls by marketing companies, libel, theft, insurance fraud, or murder. Simply saying “not the legal system’s fault that they’d do such terrible things” without providing any legal basis to protect the targets of such behaviour – that does turn it into a failure of the legal system.
And if laws (and the behaviours they allow for or not) systematically reflect the values of part of society and ignore those of other, equally legitimate, parts of society, that is doubly a failure.
Sure, argue that the government should appropriate the property of an Aboriginal man. Wouldn’t be the first time.
Or you could negotiate with the rights holders to get the thing that you want made. Psy what is being asked.
Where am I arguing that? The author argues that the flag is rightly collectively owned by Aboriginal Australians, not by Harold Thomas, and thus Harold Thomas should not have the right to sell it off. He should not have been the rights holder in the first place, Aboriginal Australians should have been.
However, Australian law doesn’t allow for that. This is a problem.
Where does “argue that the government should appropriate the property of an Aboriginal man” come into this? She’s not arguing the government should take ownership of it. She’s arguing the Aboriginal community rightly owns it already, and Australian law should protect that ownership, but currently fails to do so.
It does allow for that, though. It could be argued that the rights were not enforced and therefore it entered public domain. This is why companies stamp down on derivative works and use of their trademarks and copyrighted IP. No one has challenged the rights holder yet.
This is a very one-sided reading of history, however much the present arrangements must come as a surprise to some people. Harold Thomas’ flag was originally a protest flag, and was used by many indigenous protest organizations such as the tent embassy. Maintaining and asserting copyright gave Thomas and the causes that he fought significant power to prevent its misuse. It’s a huge testimony to the success of those protest movements (however far they clearly still have to go) that today it is not uncommon to see it flown on the Sydney harbour bridge, alongside the state flag. Not bad for a protest emblem.
You can’t very well complain about the legislation that strengthened that position when it was needed, now that a couple of competing clothing manufacturers can’t work out licenses with him.
Don’t worry. The copyright will lapse and it will be free to use, eventually. 2041 or there-abouts.
Are the licencees asking a lot of royalty?
Is it really going to be a major impost or impediment to its use ?
How can it be right to just claim community ownership of this flag ?
Maybe just be happy that he designed a good looking flag that people like and can rally around. Surely that’s worth a few bob more when you buy a shirt displaying it.
If Harold Thomas was the sole designer of the Aboriginal flag, then he has the right to licence it to whomever he wants, and the licencees have the right to protect their licences in any way they see fit.
If other users of an Aborginal flag want to be able to freely use it, then why don’t they design one of their own?
Why not replace the black sky with a blue one, and the bottom half of the yellow sun with a black half, and perhaps make the sun smaller? Make sufficient changes so that it doesn’t breach copyright?
Oh, come on! Surely you’re not that obtuse. The author is clearly perfectly aware that Harold Thomas had the legal right to do so. She’s arguing that this is illegitimate and he shouldn’t have that legal right. Because true ownership, in her view, lies rightly with the community that uses the symbol, not with the individual that designed it.
It’s bizarre that your only response to that is “but true ownership rightly lies only with him” as if it were a law of physics. She’s telling you that this interpretation of the world is not universally accepted. That the laws based on it, fail to recognise that not everyone considers this type of ownership just and right. And you just reply “but that’s what’s just and right, so what are you even complaining about!”
The last Prime Minister famously put the laws of the land above the laws of mathematics. I think that probably puts them ahead of popular notions of justice too.
Fortunately the laws of the land can be changed more easily than either of the others. Until then though, they’re what we have.
They’re what we have. And what we can legitimately question and criticise.