CHOICE membership

Trademark Applications


#41

From which: After a period of public consultation, in July 1995 the Aboriginal flag was proclaimed a ‘Flag of Australia’ under the Flags Act 1953

I think that this is the fundamental problem. The Flags Act should be amended so that an official flag of Australia must be unencumbered, not amended with retrospective effect (that would be unfair and potentially unconstitutional) but for any future official flags.


#42

As already touched on in my previous comment, the problem here is that extinguishing of copyright could reasonably be seen as acquisition of ‘property’ and hence would be subject to the ‘just terms’ provision (s51(xxxi)) so it is not ‘open slather’.

In other words, I am trying to protect taxpayers for future flags but it is too late for current flags. It may well cost money to fix this for current flags, and it may not require government action to achieve that, if the copyright owner is amenable.


#43

‘open slather’ as I used it, is they can do it at will. I don’t recollect any amendments put to vote so the background about taking property could be germane,

https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook43p/property


#44

That can still exist even though it is subject to copyright. I expect it was a decision at the time and identified through consultation, the implications of the flag design being ‘owned’ and therefore being subject of copyright.

This is the proclamation for those who are interested:

https://www.legislation.gov.au/Details/F2008L00209

Protect the taypayer from what? From having to pay royalties or enter into a licence agreement with a copyright holder to allow the use of a artwork?

If the Commonwealth decided to restrict the rights of an owner of the copyright, it would be subject to compensation and would also set a precedence that the government could decide at any time to compulsorily acquire copyright. I do have problems with this as a government could acquire copyright on things it doesn’t like or it seems inconsistent with its ideologies. Holding the copyright would allow them to restrict its availability to the masses. Something we possibly don’t want government to do.

It would be far better to have, in this case, for the artist of a flag to transfer/assign copyright to the government once the flag was adopted. This could be easily done in the case of a flag competition where the conditions of entry mandate such a transfer of copyright.

It appears that in the case of the Aboriginal flag, the aboriginal community decided to adopt the flag as representative of their nation. It is not really the copyright owner’s fault that such adoption occurred and the copyright holder shouldn’t be pressured into removing the rights associated with the copyright.


#45

It was WAM clothing who had the Cease & Desist notice issued, not Harold Thomas.


#46

It can. Precisely. I am suggesting the Flags Act be amended to ensure that this situation can never happen again in the future.

Yes.

I am not suggesting that the copyright holder would be denied anything. I am suggesting that the flag would never become an official flag - unless the copyright holder voluntarily gives up ownership of the copyright, making it public domain. So the copyright owner gets to choose between glory and money. (So some of your concerns are not relevant. The copyright owner is never forced to do anything.)

They can probably do that now - provided that the ‘property’ being acquired is itself for a purpose within the powers of the Commonwealth government - and that action could be used for evil e.g. to suppress something embarrassing. However that is a bigger issue than the specific issue being raised here.

Public domain would be better. For some of the reasons that you have alluded to.

No, it isn’t the copyright owner’s fault.

The whole question isn’t really a matter of public interest until the Australian government makes it an official flag. A provision in the Flags Act could at least discourage anyone from adopting a flag that is encumbered.

An interesting amendment - almost certain never to succeed - and bigger issues than the specific issue here. Katter was seeking two changes.

  • to extend the meaning of ‘property’ (basically to allow open slather land clearing - too transparent, Bob, we’re onto you :slight_smile: )
  • to extend the obligation of ‘just terms’ onto state governments - something that I would support 100% - the current situation is unfair

#47

This is what the petition author indicated.

It is also interested that the petition author is also trying to make a commercial gain from the use of the flag.

The petition author also indicated that knew that the flag was subject to copyright, as contact was made with the Mr Thomas. Even though they had not received a reply from Mr Thomas, the perition author decided to use the copyright material for commercial purposes. Thisnis a decision they made and should have been aware of the potential ramifications.

It appears that WAM may have issued the notice to protect their own rights and agreement with Mr Thomas. It would be interesting to see what the agreement/licence says, but this is likely to co classed as commercial in confidence.

The petition author on face value knowingly breached copyright and now thinks they should have a right to use the copyrighted material. They are also trying to use an online petition to pressure WAM clothing or Mr Thomas to give them that right.

Maybe they should have waited for a reply from Mr Thomas or also contacted WAM to see if it was possible to sub-licence its use so that they could also enjoy the use of the flag (which possibly would have meant they would be paying a fee to both WAM clothing and indirectly to Mr Thomas).


#48

“We wrote to Harold Thomas in August of 2018” seems like a reasonable amount of time to allow someone to respond.

I agree though, as noted in my first comment, that the petition text is largely wrong - but I think the underlying issue is a legitimate one.


#49

It’s me. Copyright/Trademark guy again. It’s very hard to make any sort of comment on the success of cease and desist cases like this, but as highlighted above it’s a lot more complex than ‘big company tries to own something they shouldn’t’

I haven’t had a chance to review the exact details, but remember copyright holders can choose to either sell or license copyright. If it’s sold, the new owner has the right to shut down unauthorised use. If it’s licensed they generally wont have that right, only the original creator will. Having said that if the agreement was an exclusive license they may be within their right in pursuing unauthorised use. I don’t have the details of the sale/license so I can’t specify.

Having said all of this, if the copyright has never previously been pursued there’s a chance of a court declaring it public domain. This can be done before the usual copyright expiry if a copyright has not been enforced over an extended period of time resulting in it becoming part of general public use. I cannot confirm whether there is licensing behind other uses of the original art (excluding its use as a flag)

Don’t take this as legal advice though, I’ve studied copyright but I’m not a lawyer


#50

An article regarding this disgraceful debacle.

The Federal Government needs to step up and take back the copyright and put a stop to this bottom- feeding nonsense.


#51

A pertinent part of the ABC article.

"## Conduct of WAM director’s former business ‘unacceptable’

One of the directors of WAM Clothing, Benjamin Wooster, is the former owner of the now defunct Birubi Arts, a company taken to court over its production of fake Aboriginal art.

In October last year, the Federal Court found Birubi Arts was misleading customers to believe its products were genuine, when in fact they were produced and painted in Indonesia.

At the time, the Australian Competition and Consumer Commission said Birubi’s conduct was “unacceptable”.

Weeks later Birubi Arts ceased operating, and the next month the director and a new partner opened a new business, WAM Clothing.

Birubi Arts company sold more than 18,000 fake boomerangs, bullroarers, didgeridoos and message stones to retail outlets around Australia between July 2017 to November 2017.

The case is due before court again this week, for a penalty hearing, which some lawyers expect could see a hefty fine handed down that could run into the millions.

The company is now in the hands of liquidators, and the ABC understands it “doesn’t have any capacity” to pay further debts.

The director of WAM Clothing is also in charge of another company, Giftsmate, which has the exclusive licence with Mr Thomas to reproduce objects with the Aboriginal flag on it.

Mr Thomas reiterated his support for all the companies he worked with.

“It’s taken many years to find the appropriate Australian company that respects and honours the Aboriginal flag meaning and copyright and that is WAM Clothing,” Mr Thomas said.

“I have done this with Carroll & Richardson [flag licensee], Gifts Mate and the many approvals I’ve given to [other] Aboriginal and Non-Aboriginal organisations.”

Seems to have a familiar ring to it in these types of disputes.

image


#52

Before we crank the outrage machine up to maximum what about the rights of the designer?

Uncle Harold Thomas designed the image and provides various ways for aboriginal people and aboriginal bodies to use the flag free of charge but wants to licence the for profit commercial use of it in the case of putting the image on garments. Nobody says aboriginal people cannot fly the flag and for free.

Do you (and others) seriously want to rip up copyright so that he cannot get anything for his work? If he wanted to he could have given away all his rights but chose not to. How come he cannot choose?

If the government was to arbitrarily move in that direction due to public pressure what happens when another lobby group starts a counter campaign along the lines of here is whitey ripping off another poor aboriginal, whites get to copyright their images but not us.

Perhaps a better solution would have been for government to buy the rights from Thomas and then donate them to a peak aboriginal body or make them public domain but that boat has sailed.

The Federal Government cannot take back something that was never theirs. I don’t want to live in an Australia where the feds can just take my rights because it is expedient.

The reference to the rights to the Australian flag is quite irrelevant but helps crank the machine using patriotic feeling.


#53

The copyright owner reportedly took on Google in 2010. You don’t take on a multi-billion dollar company unless you are serious about defending your copyright.


#54

A great article regarding a Victorian mum’s very clever invention.

I hope she is patenting it before some botton-feeding grub tries to do so.


#55

Given the case against Google I’d say the original artist has a strong case if they choose to shut stuff down.


#56

He has also been involved in a high-profile case in the Federal Court and the High Court, to assert copyright over his design. So he is very serious in relation to protecting his copyright which he has the right to do so…

It appears that copyright was confirmed after the gazetting of the flag under the Flags Act 1953. I wonder if the issues associated with cooyright were considered prior to its gazettal?

Maybe if others who think they have some ownership over his legally tested copyright, they should look at designing a new flag such that the final design has full unhindered public acess and use.

It is possibly unfortunate that indigenous mainland/Tasmanian Australians adopted a flag which design was subject to copyright. I wonder in hindsight whether the same decision would have been made post 1971 knowing this would be the case?


#57

I couldn’t see where such a reference was made, but to me it seems a fair comparison. How would you as an Australian feel if someone held copyright over the Australian flag and could thereby control exactly how it was distributed and used? I can imagine that aboriginal people would feel similarly about the flag in question.

In my opinion being an official flag should be incompatible with copyright. There would be two ways of achieving that from here.

  1. Copyright owner voluntarily gives up rights (unlikely) or someone (not the taxpayer) buys the rights - and in either case the design is then put into the public domain.

  2. Official flag status is revoked.

Fred123 may want that but I have been careful not even to suggest that. I respect the fact that a court has determined that Thomas is the legitimate copyright owner - and any solution has to work within that limitation.


#58

Third option (which could occur either before or as a result of 2) would be to adopt a new flag.

I think 1 would be impossible as the copyright owner has taken significant effort to protect his copyright and possibly would challenge any compulsory acquisition of the copyright (which may aoso require a special staturory instrument to do).


#59

Both good questions.

Hindsight is a wonderful thing.


#60

Most people have their price. The copyright has a dollar value. I was not proposing compulsory acquisition (which would be hard to justify). In fact by suggesting “not the taxpayer” I was proposing the opposite. People can crowdfund the buy price. I won’t be putting in any of my dollars however.

You could justify revoking official status because as it stands today the government is providing free marketing for a profit-making entity.