National flags and symbols = public property?

In honour of NAIDOC Week 2019 (7 – 14 July), this post considers recent coverage of IP rights surrounding the Aboriginal flag.

National flags and symbols are useful marketing tools that are often used by businesses to tap into the national consciousness or demonstrate certain values or attributes of a product offering. However, recent media coverage surrounding the ownership and use of the Aboriginal flag has highlighted limitations that exist when such flags and other Australian cultural symbols are used for commercial purposes.  This comes as a timely reminder that businesses should be mindful of IP rights and cultural sensitivities surrounding these flags and symbols.

The Aboriginal Flag

As background, the Aboriginal flag was created by the Luritja artist and land rights activist Harold Thomas in 1971, and received recognition as a Flag of Australia by the Governor General’s proclamation in 1995 and again in 2008, under the Flags Act 1953 (Cth).

Permission is not required to fly the Aboriginal flag, however, its creator has been recognised as the owner of copyright in the flag, which is an artwork under the Copyright Act 1968 (Cth).  Accordingly, the flag may only be reproduced for commercial purposes with the creator’s permission or otherwise the user risks engaging in copyright infringement.

In a somewhat controversial move, Harold Thomas granted an exclusive licence to an apparel manufacturer for use of the flag and this licensee has enforced their rights to prevent others from using the flag, including against a number of organisations promoting Aboriginal health and community engagement initiatives.  The fact that the flag is subject to private intellectual property rights has come as a surprise to many, and as the copyright holder, Harold Thomas is entitled to exercise his rights, including by granting such licences.

There has been some suggestion of the government compulsorily acquiring the rights to the Aboriginal flag, however, owing to the deep cultural and historical sensitivities, it seems that there would be a strong policy argument against exercising this power.

Other Flags of Australia

For businesses, this serves to demonstrate that not all national symbols are freely available for commercial use, or that guidelines apply to their use.  Here we consider some examples:

  • Australian Flag – this flag can be used for commercial purposes, including in advertisements, without the need to seek formal permission.  However, businesses seeking to import products featuring the flag will need to contact the Department of the Prime Minister and Cabinet.
    Where a trade mark or design features the flag, registration will be subject to compliance with the published guidelines which are available on the Department of the Prime Minister and Cabinet’s website, and via the Trade Marks Office Manual of Practice and Procedure. Most notably, the Australian Flag itself cannot be registered as a trade mark;
  • Torres Strait Islander Flag – adopted in 1992 and recognised as a Flag of Australia in 1995, this flag can be flown without permission. However, similarly to the Aboriginal flag, it is subject to copyright held by the Torres Strait Island Regional Council;
  • Eureka Flag – this flag has been subject to controversy over the years, with it being used as a symbol of groups across the political spectrum. While calls for the Australian Government to take ownership of this flag were raised in 2016 to block certain types of uses, the flag remains available for commercial use (subject to other traders’ registered marks or designs); and
  • Boxing Kangaroo (BK) – used as a symbol during the 1983 America’s Cup, rights to the BK were acquired by the Australian Olympic Committee (AOC) later that decade. While the symbol is used on flags and memorabilia at many sporting events, its ownership by the AOC means that permission must be sought prior to use.

Key takeaways

  • Not all national flags and symbols are freely available for commercial use.
  • Businesses wanting to use a national flag or symbol should make enquiries to determine what permissions are required and, where applicable, obtain appropriate licences from copyright owners.
  • When using these flags or symbols, businesses should:
    • comply with any official guidelines for use;
    • ensure the use is not disrespectful or causes offence to associated cultural groups; and
    • be mindful not to mislead consumers with respect to product attributes, such as origin or affiliation.

This  post was co-authored by Alexandra Moore (Graduate), Valiant Warzecha, Jessie Buchan and Melinda Upton.