Pankhuri Malik is an IPilogue Writer and an LLM candidate at Osgoode Hall School of Law.

The Australian Indigenous community just scored a major win for their cause to reverse colonialism. It was undoubtedly an ambitious attempt and one that I personally did not expect the government to support. Taking many of us by surprise, the Australian government took a giant step towards reinstating the pride and honour at the core of Indigenous sentimentality by freeing the Indigenous flag and making it available to everyone to use.

Copyright in Indigenous Works

In the fight for land, representation, and independence, intellectual property disputes concerning Indigenous peoples are often overshadowed. One such dispute had been afoot in Australia for five years. Mr. Harold Thomas, the artist and copyright holder of the Australian Indigenous Flag (“the Flag”) is an Elder of the Indigenous community. He designed the Flag in 1971 as a symbol of Indigenous resilience and representation. This flag has been the subject of much controversy lately. A quick timeline of the dispute is here:

1971	Mr. Harold Thomas, a Stolen Child of the Australian Aboriginal community, hoists the Flag for the first time to improve visibility for the National Aboriginal Day Observance Community (NADOC) march.
1995	The Flag is declared an official flag of Australia under section 5 of Australia’s Flags Act, 1953.
1997	Mr. Thomas is held to be the creator and owner of the copyright in the Flag.
2018	Mr. Thomas grants an exclusive licence to WAM Clothing for the manufacture and use of the Flag on their merchandise
2019	WAM Clothing begins asserting its exclusive rights by sending notices to any entity found using the Flag for commercial purposes. Understandably, the Indigenous community was unhappy with this change. Once a symbol of revolution, the Flag was dropped by Sports Clubs and up-and-coming businesses which did not want to pay royalties for its use. The community was enraged and the “Free the Flag” movement was afoot.

 

Crown Copyright in Other Jurisdictions

Provisions for copyright ownership by the Crown are a consistent feature of copyright laws in commonwealth countries. Section 176 of Australia’s Copyright Act, 1968 provides for Crown copyright for works created under the “direction or control” of the Crown. Much like section 12 of Canada’s Copyright Act,  this provision was also adopted from the British statute.

These provisions have been used to retain Crown ownership over literary, artistic, or otherwise creative expressions. In Canada, the Supreme Court interpreted section 12 in Keatley Surveying Ltd. v Teranet, Inc. to maintain Crown copyright in works that have been created under the direction or control of the Crown and are “government works”. That is, these are works that serve a public purpose and vesting the copyright with the government furthers this public purpose. Similarly, in the UK[1], it was held that designs for coinage prepared by the company Ironside under an order by the Royal Mint were prepared under the direction or control of the Crown. The copyright, therefore, vests with the Crown.

Crown’s Acquisition of Copyright in Australia

The “Free the Flag” movement in Australia gained momentum by 2020. Since the Flag was created in 1971 by Mr. Harold Thomas completely devoid of governmental interference, section 176 of the Copyright Act was unhelpful. Alternatively, the government considered exercising its powers under section 51(xxxi)  of the Constitution to compulsorily acquire copyright in the Flag from Mr. Thomas. Under section 51, within its peace, order and good government powers, the Australian Constitution empowers the Crown to acquire any property with respect to which it has the power to make laws. Since copyright law-making power lies with the Crown under section 51(xviii), the government would have been within its constitutional authority to green light such an acquisition. However, given the tumultuous history of governmental relationships with the Indigenous community, such an acquisition may have been insensitive and drastic.

Finally, on January 25, the Australian government entered into an agreement with Mr. Thomas whereby it purchased rights in the Flag, paid off the licensees, and set up an annual scholarship for Indigenous students for a whopping $20 million AUD. This transaction “freed” the Flag from private control, making it available for both commercial and non-commercial use.

Interestingly, this is not the first time the Australian government has purchased copyright in an Indigenous work after the fact. In 1967, the Governor and the Reserve Bank paid $1000 AUD to Mr. David Malangi for using his original artwork on the Australian dollar bill circulated in 1966.

Looking Ahead

Australia’s approach to this copyright dispute may not have been unprecedented, but it is definitely distinct. Actively choosing to spend tax dollars on purchasing rights that could have been potentially acquired under the Constitution speaks not only to the sentiment of reconciliation but also honours the 50-year-long history that accompanies the Flag and everything it stands for.

Coming at the heels of Australia Day, much has been said about the possible dual intent behind this purchase. It will be interesting to see how the Flag is adopted by the government and if any steps are taken to ensure that the value of its sentiment does not diminish through non-Indigenous use.

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[1] Ironside v Attorney General 1988 [RPC] 197