Copyright Ownership in the Aboriginal Flag vs. the Public Interest

A Luritja man, Harold Thomas, owns the copyright in the Australian Aboriginal Flag (confirmed by the Federal Court in [1997] FCA 215).

As owner of the copyright Thomas is authorised to license it and WAM Clothing is his licensee. WAM has issued letters of demand to a number of parties reproducing the flag, including the AFL and Spark Health, an indigenous social enterprise (profit for purpose business). In June 2019, an earlier licensee of Thomas breached consumer law and was heavily fined for selling fake indigenous products manufactured in Indonesia, having falsely represented that they were made in Australia and hand-painted by indigenous Australians. These events have brought the questions of ownership and commercial use of the Aboriginal flag into sharp focus.

For reflection...

This scenario is unique. Flags are normally free for anyone to use subject to prescribed protocols but how can the copyright position affirmed by the Federal Court be reconciled with the cultural significance of the most emblematic icon of the First Nations people?

Under Section 51 (xxxi) of the Constitution, the Commonwealth has the power to compulsorily acquire both tangible and intangible rights, including copyright. Is this an option here and how could it be equitably exercised?

Spark Health has opened a petition but its concerns do not appear to be focussed so much on whether the flag should be the subject of a proprietary right but on the creation of new licensing opportunities for Aboriginal organisations and businesses. Perhaps this reflects cultural norms in relation to property ownership.

See the petition here:  
https://www.change.org/p/australia-change-the-licencing-agreement-around-the-aboriginal-flag-pridenotprofit