Essay: Copyright Implications of the Aboriginal Flag in Australia." (50 characters)

Settled Copyright Issues

Explain the copyright implications regarding the aboriginal flag, and discuss the copyright issues that were resolved as well as any other remaining copyright issues which may possibly arise.

Over the past two decades, Australian citizens have made to believe that the aboriginal flag was a unifying symbol to the indigenous populations of Australia in which the court ruled that the flag actually belonged to Harold Thomas who was the creator of the flag. Since the flag symbolized unity in the country and its uniqueness implied that there was a need to acquire it so that it can be used as a national symbol. What followed was a case hearing and determination in 2019 in which the dispute was settled with payment of $20 million s settlement. Not only did they pay the amount, but they also agreed to provide an annual scholarship to aboriginals and Torres Strait islander students as an honor for the flag. The creator of the flag noted that it was a deeply personal piece of art that in its creation he did not intend to sell it or make it a political object. Under the settlement agreement, it was noted that as a creator, Mr. Thomas was to retain moral rights over the flag as such rights were regarded to be personal and can be withheld by an individual as provided in the copyright act. The implementation of this transaction poses an implication with regards to application and use of copyright laws in the county hence posing a question in regards to impact of this court decision in protecting property copyrights as this essay seeks to provide and analyze.

Previously prior to the purchase, the furole over the use of aboriginal flag used to cause a stir in the society because even in sporting events that used to bring people together, the flag was not able to be used unless the event organizers pay the copyright holder certain amount as fees charged for using the flag. This was regarded as being ridiculous as it always made it difficult for individuals to get an opportunity to use the flag without being compelled to pay a fee for the same. In such context, people in society were surprised to get to learn that the flag was controlled not even by an indigenous person, but by a non-indigenous company.

Designed in 1971, this flag was regarded as an important symbol to the aboriginal individuals that they were not even aware of the fact that using the flag was subjected to payment for the idea behind the flag. Even though it belonged to a private individual government recognized the flag under provisions of The Flags Act 1953 which acknowledges and provide information regarding various flags used in the country. Since this was a private idea, the flag was protected by Copyrights Act 1968 in which there was no opportunity to reproduce or redesign it without prior knowledge of the owner. This was deemed as a challenge to patriotic citizens who used to feel happy using the flag for their private and public functions. The copyright was owned by Mr. Thomas in which it was deemed difficult for use of the flag for private and even public functions without their knowledge.

Remaining Copyright Issues

As this was a private discovery that was later on embraced by the public as a unique project that can provide them with a unique flag for their own use, the owner of the idea had to trademark the flag by registering it as their own discovery. The benefits associated with having a registered trademark and copyright in which nobody can be able to access or use your invention without their knowledge is that it provides an opportunity to uniquely identify the owner of the property in question even if it is a publicly embraced property, it must have an origin that must be acknowledged and respected. It also provided an opportunity through which the creator of the idea can be able to get relief in case of infringement of these ownership rights and also, it protected the creator of the idea from other people getting to use the idea and creation without having acknowledged him as well as also avoid taking credit for a project that was not regarded as their project or own creations.

Under the provisions of copyright laws, any individual who was in need of producing the flag or using it for other purpose was required to inform the creator of the idea in order to get clearance from him before using the flag an act that caused confusion on the need for such endless activities. Even the Sydney Olympic Committee had to pay a value of $13 Million to the flag copyright holder for them to use the boxing Kangaroo flag and this shows the importance and value attached to items that have a copyright claim embedded to it. The value is that it provides the creator of the idea with an opportunity to protect their creation without the idea being used even by government agencies without appreciating it and crediting the source for use of their creation.

Due to the importance attached to the aboriginal flag and the growing concerns raised about the flag by the public who were limited to use the flag without crediting the source, “free the flag” campaign broke up and this caused a sensation in the country in which close to 200,000 signatures of the aboriginal people were collected for petitioning government to look for a way in which they can make it less burden to them to get to use the flag without the need of having to pay for the use a demand that was contrary to the provisions of copyrights act on how a property that has been copyrighted should be handled. As a result of the growing concerns and petition filed to challenge government to make a decision, government was forced to take a decision on how to free the flag so as to allow the company majority to get to use the flag for charitable, social and cultural sessions without the need or fear of being apprehended for breaching provisions of Copyrights Act.

The importance and the force that is attached to the use of a private property that has been subjected to copyright protection in Australia shows the seriousness of government in regards to ensuring that the ideas and the property rights of an individuals are protected and that there is no room for breach of such rights as it amounts to a breach of the law provisions. Even when it comes to music which is a mere creation that does not have a physical content embedded in it, infringement of copyright rights have made many of these offenders to be subjected to punitive punishments an act that is showing the importance of copyright protection in generation and protection of original ideas. The moral rights of protection of work against infringement was that even if the privacy or infringing has occurred outside the country, there was need to protect the local content creators from breach of content provisions which calls for the need to ensure that property rights have been protected at all cost from violation.

Protecting Property Copyrights in Australia

The country is part of many countries across the globe that acknowledge and support protection of property rights, they are part of various multi-party conventions as well as treaties that have been signed to acknowledge and support copyright property rights from illegal inventions. Some of these conventions included WIPO Berne Convention for the Protection of Literary and Artistic Works 1971, UN Universal Copyright Convention 1952 (UCC), WIPO Copyright Treaty 1996 (WCT) and Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled among the list. Further, the country has also signed various free trade agreements with other countries aimed at ensuring that there is promotion of trade and expansion of the economies in the light of growing demand for gods and services. The free trade agreements signed such as the one between USA and Australia is effective in the light of protection of copyright claims. Further, it should be noted that Australian legal obligations in international market however do not apply locally because in the local context, Australian laws must be applied for uniformity purposes.

Under the Australia copyright act, the two distinct provisions that are protected by the act include work such as original music and artistic work and specific work and services that are on the verge of being infringed their rights. In order to ensure that violation of copyright acts is met decisively and that there is room for prevention of the violation, the law empowers the court to intervene in such matters. Whereby the court is allowed to hear and determine both civil and criminal offences that arise from infringement of the copyright act provisions. In the context of small courts, the law provides that they can also hear and determine copyright infringement disputes not unless it is an appeal that can only be heard by the federal court.

To showcase the seriousness of any breach of these laws, a tribunal has also been constituted referred to as a copyright tribunal which is responsible for conducting an oversight on application of licensing schemes in a fair and applicable manner, equitable copyright work remunerations and any matters arising in relation to the copyright that are not part and parcel of the agreement provisions.

In the light of government addressing the case of aboriginal flag, it was an opportunity for government to consider certain properties that were regarded as having interest to the general public and take proactive measures to ensure that they are protected from violation of the rights. The case of aboriginal flag was a reflection case in which government was keen in determining on whether there was a need to ensure that protection of the rights of a content creator comes first before the rights of the general public who were only concerned at using the object or idea without providing credit to the creator of the property or idea that they are embracing wholeheartedly. It was therefore regarded as a landmark case in the 21^st century as it offered an opportunity for the rights of content creators to be respected and acknowledged instead of violating these rights by only focusing on the interests of the company majority.

The Importance of Copyright Protection

The copyright act enacted by government provides a broad concept to be used for authorization of various infringement litigations as stipulated in section 101 of the copyright act. Further, the act extends liability for authorization on the use of the copyrighted property in which the owner of the property rights is the one who has a right to issue authority to use the property, sanction a breach in its usage or approve the usage of the property in a manner that will be beneficial to the property rights holder.

In case of an infringement of the property rights, the court held that not all cases can be determined as having a violation of the rights of the property holder rather, facts must be established and ground for violation of those rights be established for it to be deemed to having breached the property rights or not. Even if there is an evidence of violation of property rights outside the country, provided it has been established that there is no violation of property rights that has occurred and in such a case, government intervention through offering a platform to sue such individuals amounts to the need to protect property right holders from violation of property rights.

In case two or more parties have acted based on an agreed common action, the common law of joint tort-censorship will apply hence giving a rise to secondary liability in the tort of negligence. The provisions of protection of copyright laws provides that even a slightest mistake will be rectified with equal force of violation of property rights as was in the case of Perez in which a mere sound record altering by a Dj was regarded as copyright infringement. Moreover, even publication of pictures is regarded as a violation of copyright regulations.

In the light of the case of aboriginal flag protection, the various copyright issues that arised and which needed to be addressed is justification of the price to be paid for a property that is under protection. This is based on the fact that even if there is a need to protect the interest and credit the inventor for the work established, there is need to establish a pay that is to be made on a fair ground that even a private individual can pay conveniently in case they want to use an invention made by another party. The price set was outrageous in that it was more than a reasonable price that can be accepted to be embraced for such a right hence, there is a need to ensure that the price is controlled at minimum levels or rather, there should be a threshold that the price to be charged will be based on to avoid compelling people to pay more than what they can afford even if it is meant to protect the rights of the inventor.

Conclusion.

It is therefore important to acknowledge that in the light of protecting innovation ides, there is need to set a reasonable price in which even if it will be paid, the price cannot be outrageous as such can limit people who want to copy the idea of another person from attempting to copy or pay for it as the price will be outrageous for them to afford to pay for it. Government should therefore be in the fore-front in ensuring that it enacts proper legislation in place to address payment threshold and the period of use that a third party can be granted to use the property because failure to do so will provide room for art developers to not only exaggerate prices for copyright property rights, but, they will also attempt to control the use of these rights even after they have been paid what was agreed upon. In so doing, dispute issues wont arise on basis that there is a violation of property rights being experienced.

Reference List

Legislations.

Case law.

Harold Joseph Thomas v David George Brown & James Morrison Vallely Tennant [1997] FCA 215.)

Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535

University of NSW v Moorhouse [1975] HCA 26

Roadshow Films Pty Ltd v iiNet Ltd [2012] 248 CLR 42

Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187

Perez & ors v Fernandez [2012] FMCA 2

Corby v Allen & Unwin Pty Limited [2013] FCA 370

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