The stalemate continues in the copyright spat over use of the Aboriginal flag — an issue that was brought into the national spotlight during the AFL’s Indigenous round earlier this year.

A campaign to “free the flag” has gained momentum after non-Indigenous WAM Clothing, which holds the worldwide exclusive rights to use the flag on clothing, sent out cease and desist letters to a variety of companies, including Aboriginal charities.

A disagreement with WAM also meant the flag was not displayed on player jerseys during the AFL’s Indigenous round.

Since then, a Select Committee Inquiry into the Aboriginal flag has said the flag’s copyright should not be compulsorily acquired by the Federal Government.

However that recommendation was more than a month ago. A symbol of resistance, pride and resilience; the Aboriginal flag was designed by Luritja man Harold Thomas.

It was first flown on NAIDOC Day in 1971. A year later in 1972 activist Gary Foley took this flag to the east coast for it to be flown at the Aboriginal Tent Embassy outside Parliament House in Canberra.

Famously, Cathy Freeman wore the flag in her victory lap at the Sydney Olympic Games after winning the 400m sprint in 2000.

Even going so far as to contact manufacturing outlets, it’s clear WAM Clothing and the other two licensees, Birubi Art and Gifts Mate, have monopolised the commercial use of the flag.

WAM Clothing director Ben Wooster was previously tied to Birubi Art — now voluntarily liquidated after being fined $2.3 million due to misleading and deceptive representation in relation to fake Aboriginal merchandise.

In 1999, renowned Indigenous intellectual property lawyer Terri Janke proposed the Indigenous Cultural and Intellectual Property protocol as a way forward for Indigenous copyright and compensation.

The protocol attempts to uphold the right to protect traditional knowledge, sacred cultural material and traditional lore as well as ensuring customary obligations are respected and copyright owners retain the right to be paid.

Central to this has been Janke’s argument for an Indigenous cultural authority which could holistically deliver self-determined voices.

However, the ICIP protocol remains an aspirational guideline; it is not legally binding and it has considerable gaps, such as in the case of community ownership.

By Rachel Stringfellow