Some Questions About the Australian Aboriginal Flag Copyright Deal
News about the $20m deal to “transfer” to the Commonwealth of Australia the artistic work copyright in the Australian Aboriginal Flag raises basic public domain copyright issues. While the agreement may be commercial-in-confidence, there are important copyright questions left unanswered that should be addressed.
The artistic work of the Australian Aboriginal Flag was authored by Harold Thomas in 1971, a matter that was concluded judicially in 1997. That 1997 court decision was itself sparked by the Commonwealth officially proclaiming in 1995 that the flag “is recognised as the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally”, and appointing it “to be the flag of the Aboriginal peoples of Australia”.
Harold Thomas had alleged that by this 1995 proclamation the Commonwealth had authorised copies of his artistic work to be made. In seeking to arrive at a resolution of his claim, the Commonwealth first required that Thomas establish his authorship and ownership as against two other men who had separately claimed title to the artistic work. Harold Thomas did successfully establish his title to the work.
In view of the reported 2022 “transfer” from Harold Thomas to the Commonwealth, Australian copyright law is that if the Commonwealth owns the Australian copyright in an artistic work, that copyright legally exists until 50 years after the calendar year in which the work was made. This means that for this 1971 artistic work, upon the Commonwealth taking its copyright ownership, the work’s Australian copyright expiry date becomes 1 January 2022: a date in the recent past. (If Harold Thomas retained ownership, the standard copyright term expiry date would be 70 years after the calendar year in which he dies: a date in the distant future.) Assuming the artistic work copyright in the Australian Aboriginal Flag was fully “transferred” to the Commonwealth, upon transfer the copyright in the work entered the Australian public domain. Also, on entry into the public domain, the Australian moral rights of Harold Thomas as author of the work cease — these rights include the right to prevent derogatory treatment of the work. In other words, upon a full “transfer” of copyright in the work to the Commonwealth, both economic rights in property and the author’s personal moral rights simultaneously expire.
Aspects of the ministerial Media Release (“Free use of Aboriginal Flag secured for all Australians”) are at odds with some of my legal conclusions and this begs some questions about the nature of the deal. For example, it states that as “part of the copyright transfer, Harold Thomas will retain his moral rights over the flag”; that Flagworld (a commercial flag maker) “will remain the exclusive licensed manufacturer and provider of Aboriginal Flags and bunting”; and, that all “future royalties the Commonwealth receives from Flagworld’s sale of the flag will be put towards the ongoing work of NAIDOC [National Aborigines and Islanders Day Observance Committee]”. It might be that the terms of the “transfer” agreement, if disclosed, would explain these matters. However even without complete disclosure of that agreement whether the Australian government has paid $20m to expedite entry of the flag artistic work into the Australian copyright public domain should be clarified.
Specifically, has the Australian copyright in the Australian Aboriginal Flag, by reason of the agreement, entered the Australian public domain? If not, why not? And if so, what is the basis of the assertions in the Media Release about the moral rights of Harold Thomas, the exclusive licence held by Flagworld and the resulting royalties?
