Indigenous people are a collective people. We are of the land and we are responsible for our people and communities. Culture is found in our art, ceremony, stories, songs and dance passed on for generations to the community — not any one individual. Our culture is centred on our kinship structures and the responsibility that entails. This responsibility is sacred.

In a colonised country, the integrity of that culture of community against individualism and capitalism is of the utmost importance, which is why there is a real sense of betrayal and grief in the Indigenous community at the moment. This follows the licensing of the copyright for the Aboriginal flag by designer Harold Thomas to WAM Clothing, a Queensland based non-Indigenous corporation. Not only was this licence granted to a non-Indigenous corporation, but it was done so exclusively, to the detriment of the collective — the community.

Our symbol of resistance, our symbol that we have used to differentiate ourselves from the homogenous collective of Australia has been exploited for individual gain in the name of capitalism — the antithesis of our culture. To rub salt in the wound, WAM Clothing has started shooting off cease and desist letters to Aboriginal businesses who create products that feature our flag.

Of course, the exploitation and commoditisation of Indigenous culture is rife and has been ongoing. However, when a collective and community symbol is exploited in this manner so counter to cultural protocol, it highlights once again the unethical practices of using copyright law to claim ownership over collective Indigenous property.

Why is Indigenous cultural and intellectual property subject to laws that fail to honour culture and communal ownership? Why is the collectively owned Aboriginal flag treated any differently to the Australian flag, which can be commercialised without permission provided it is not imported? Why then, is one non-Indigenous corporation able to claim ownership over the licence to use our symbol?

Under current intellectual property law, any Australian individual or company can apply for rights to Aboriginal products or language — referred to as Indigenous knowledge — and we have seen this in practice. With the burgeoning “alternative health” market, ancient remedies have been sought out and capitalised on by unscrupulous corporations. This happened with the trademark of our traditional medicine Gumby Gumby.  

Now that the growing resistance to colonial oppression is gaining more attention and support from the non-Indigenous community thanks to social media, WAM Clothing has made a perfectly legal commercial decision to seek exclusive rights to use the flag. While legal, this is neither moral nor ethical.

The legal system in Australia, particularly with the protection of Indigenous cultural intellectual property, is out of touch with the nature of Indigenous culture and simply asserts the values of the colonising force. The legal system predominantly supports the structures established to ensure market, trade and profit. Despite clear evidence of countless copyright breaches involving mass production of Indigenous art and other products, the legal system has failed to adequately address this in order to protect the Indigenous community. But when it comes to the exploitation of our culture, our community and our vulnerability, non-Indigenous communities have the advantage and resources to use the copyright laws to shut us out.

It is unsurprising to find out that Ben Wooster, part owner of WAM Clothing, has a long association with Harold Thomas spanning 10 years, through his other business Birubi Art. Birubi Art has sold tens of thousands of Aboriginal boomerangs, bullroarers, didgeridoos and message stones throughout Australia under the representation that such products were “genuine” and “Aboriginal”. However, those products were mass produced in Indonesia. Birubi Art has since gone into administration, after the Federal Court found against it for false and misleading statements and breaches of Australian consumer law.

So with Birubi Art under administration for unethical conduct that breached Australia’s consumer standards — not to mention the abhorrent breaches of Indigenous intellectual property — Wooster pops straight back up as co-owner of WAM Clothing to hold the exclusive licence to use the Aboriginal flag.

The market requires significant reform to stamp out the clear exploitation of culture by non-Indigenous companies who have no connection to community and do nothing to give back to the communities they make a profit from. Suffice to say, the community is reeling, feels betrayed by Holt, and there will likely be challenges to this exclusive licence given it is a significant departure from culture and cultural protocol.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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