CHOICE membership

Trademark Applications


#61

It was mentioned by Fred when he first raised the change.org petition.

How would I feel about something that cannot happen? I don’t know it’s a bit hypothetical. The designers of the flag have never claimed copyright. If Thomas had never claimed copyright we wouldn’t be in this position.

I understand why many people are not happy about the current situation, I am not comfortable with such a symbol being copyright but the fact is the designer, the aboriginal representatives and the government of the day did nothing sensible to prevent this problem developing.

The nation ought to seek a solution but knee-jerk ones like removing the owner’s rights by a stroke of the pen isn’t acceptable.


#62

An update from Change.org on this disgrace.

It is surprising that Harold Thomas was prepared to do business with a person who was found guilty of selling fake Aboriginal artefacts in his failed previous company.

I hope he has some means of checking that he is not being cheated on the stipulated royalties.


#63

A sceptic would start to think it may have been a clever marketing ploy…to gain media attention to increase web traffic and product sales, especially when this statement is made…

'Please head to www.clothingthegap.com.au to get your special Aboriginal designed merchandise before it is too late!’

It appears most of the products (3 out of 14 did) on the website (when viewed earlier today), didn’t contain the copyrighted flag.


#64

I suppose the flip side is if a flag design is not copyrighted or owned by someone, it could be used by a company in another country to ‘ripoff’ their products as being Australian by placing the flag on their products.

There needs to be some controls to protect ‘brand Australia’ throughout the rest of the world. Fortunately, the Australian flag is.


#65

What a hot topic! :hot_face:

I feel none the more certain about what is the best way forward with the dilemma at the heart of this topic.

Change.org is just one way of responding to this circumstance. It’s not one I subscribe to, given it is a for profit American Corporation. No better or worse than other global reaching forms of social media?

Given the flag in question has been adopted as a national symbol, both by Australians of aboriginal descent and formally by the Federation, the solution belongs to those two parties to resolve with the legally empowered copyright holder.

What do they say?


#66

I think that could only be guaranteed via bilateral or multilateral treaty. No Australian law will achieve that.

The guidelines you link to are only guidelines and the formal legal restrictions that you link to only apply within Australia. The restrictions exist by virtue of explicit legislative provision, rather than arising out of copyright.

Regardless of any explicit legal restrictions, bearing the Australian flag so as to suggest an Australian connection where no such connection exists could easily be illegal under more general provisions of the ACL (within Australia).


#67

The bottom line is: does Thomas have any interest in selling up? If no, I think the best way forward is to revoke the official status of this flag and start the process of replacing it with an acceptable (to the aboriginal people), unencumbered flag.

Regardless, I believe that the Flags Act should be amended immediately in order to avoid this situation in the future.


#68

An international patent would achieve that outcome easily and could include as part of it’s usage terms the right to be used in accordance with the relevant Acts of Parliament. No need then to create a further Treaty or terms in a treaty to cover the sovereign rights.


#69

A flag design does not meet the requirements to create an patent recognised in other countries. It would need a treaty.


#70

There appears to be an assumption here that replacing the existing flag is acceptable to those it has come to represent? Despite a rather one eyed system of copyright which is held in the USA we still use Waltzing Matilda as appropriate.

Why should we change history?

Anyway I like the current flag as a symbol of all that has and has not changed for traditional Australian culture. The fact that the design is subject to a modern concept of property ownership appears contrary to it’s general use and want it represents?


#71

Then simply can the Crown internationally copyright and/or trademark the Flag design, such as the ATSI flag has copyright by it’s designer. Intellectual property laws might cover this.


#72

We already have copyright treaties with a large number of countries that ensure artist’s copyrights are respected overseas. Once again though it does rely on the artist pursuing copyright infringements


#73

Fair point but that is within the scope of “start the process of replacing it with an acceptable (to the aboriginal people), unencumbered flag”. If that process has no outcome because nothing else is acceptable then so be it. The conversation should still be started.

Or play the long game and wait until the design falls out of copyright.

There is a certain irony there, but there’s nothing that we can do about that.


#74

In the US our flag as are any flag of any nation are protected by their Laws and cannot be trademarked or copyrighted by others. Of course works that use some parts of our flag may be able to be used in designs but each use is tested against some fairly strict rules. I am guessing any nation would seek similar treatment and protection.


#75

I am not always a fan of Katter’s politics or hard conservatism, but sometimes he raises his hand in interesting ways.


#76

Katter proposes that the government buys the rights. This is potentially a reasonable solution if the owner cooperates, worth a try at least. If the owner isn’t cooperative what then?

The rest of the article goes on about changing the rules. The petition that kicked off this round doesn’t actually specify what change they want. The initiators are a for profit organisation who want special treatment because they are aboriginal. They say “We believe that this control of the market by a non-indigenous business has to stop.” How? Taking action on principle is one thing writing special rules for one vendor is another.

36,000 signatures is not a huge number. Where are the opinion pieces by aboriginal elders? What are the views of the country’s leaders of any colour? Silence. A few low to middle ranked articles in the press (that I read) and nothing more for the last few days. If there was any indication that many aboriginals and their leaders felt strongly about this I would be more comfortable with government action.


#77

For 24 years it hasn’t been an issue, but only when a for profit business thinks it should be able to make unfettered profits from the use of another’s copyrighted material. Looking at use of the flag on the NAIDOC website, one can use the flag freely, providing one does not cross the line and use it commercially or for profit.

Even sporting codes who use the flag on their apparels were negotiating/have negotiated agreements for the use of the flag. It appears that the petitioner may not have tried hard enough for such agreement of thinks that unlike others, they could use the flag without such agreement.

It could be another 24 years before someone tries something similar. Should the taxpayer be responsible for allowing profit based business to profit freely at the taxpayer expense?

Personally, I would prefer the money which could otherwise be spent on potentially buying the copyright, used for indigenous health or housing. This would have far better return on investment for the taxpayer than buying the copyright.


#78

Unless users are whipping out their sewing machines and making their own flags, every user of the flag is affected by the commercial use restrictions, in the sense that they are paying more for it than they need to if an unencumbered design were used. That also means that the taxpayer is paying more for it, while promoting the interests of the copyright owner, at no cost to the copyright owner.

I don’t want taxpayer money to be spent on buying the copyright (i.e. we are in effect in agreement).

I want those who really care about this to put up their own money (e.g. crowdfund) to buy the copyright, and then put the design in the public domain.

None of this discussion about buying the copyright makes sense unless and until the copyright owner gives any indication of whether he is willing to sell.

The motivation may well be suspect but that doesn’t avoid the underlying issue.

It’s rubbish anyway. The copyright owner is indigenous. Regardless, he is free to lease rights to a non-indigenous business or to an indigenous business (whatever exactly those things are). When I buy ‘stuff’, the ethnic background of the business owner is not a consideration.

Like a lot of these petitions. Hence why I don’t put my name to most of them. You don’t know what you are putting your name to.

I see a fair few of these change.org (and other) petitions. 36,000 is not a bad number. It should be enough to kick off a discussion and see where it leads.


#79

A majority of such transactions start by an unsolicited offer. “I’ll never sell” often kicks off a discussion revealing a real price (sometimes ridiculous) being floated followed by a negotiation.

Should the flag be an issue for government? The government has effectively made it a symbol of the aboriginal people with eyes shut or wide open, depending on one’s view. The aboriginal population are as much and more Australian than the rest of us. Governments fund (eg) sports stadiums, why not a flag for one of its constituencies?

There are a number of interesting issues including the copyright holder himself, the T&C of the copyright holders agreements and those of his licensees, and whether the copyright has been enforced in all cases where a breach has been suspected, which is a legal matter. Unusually messy as ‘national’ flags go, noting it is not a national flag although has a unique relevance as non-national flags go.


#80

Ok, so where did it lead? Not very far. Since the initial few articles it has not had significant support. If it was an important issue just waiting to be heard you might expect significant support from aboriginal leaders.