If you were hoping for some more info on how the company that holds exclusive rights to use the Aboriginal flag – on clothes, towels and digital media products – uses their copyright, then you’ll have to keep waiting.
WAM Clothing appeared before a Senate Committee on Monday – the first time the company has really spoken since acquiring the rights from Luritja artist and flag designer, Harold Thomas, in 2018.
And they didn’t give much away.
Many of the questions directed to the company directors, Semele Moore and Benjamin Wooster, were not answered.
Ms Moore cited the confidentiality of business agreements and the fact she did not have her laptop in front of her to check records.
They also refused to take any questions on notice, which would have given them until 18 September to respond to questions in writing.
The committee, chaired by NT Labor senator and Yanyuwa woman Malarndirri McCarthy, was established on 3 September.
It’s investigating copyright and licensing arrangements for the Aboriginal flag design, with particular focus on who benefits from payments to use the design, and how that affects Aboriginal organisations, Aboriginal communities, and Australia broadly.
The flag was designed by Harold Thomas in 1971.
As its creator, he privately owns the copyright for the flag – and decides who gets the licences to reproduce it.
He’s given licences to three companies, who create their own products, and hand our permissions / charge fees to use the flag: WAM Clothing, Gifts Mate and Flag World.
These companies are not owned by Indigenous Australians.
Just a few weeks ago, the AFL revealed it wouldn’t be using the Aboriginal flag during its annual Indigenous Round, deciding not to enter into a commercial agreement with WAM Clothing.
Many clubs joined the ‘Free the Flag’ campaign, which is calling for the licencing agreements to change.
(We’ve done a handy Instagram explainer about the debate here).
Federal Government negotiating to acquire rights to Aboriginal flag
“Ben and I are both passionate supporters of the Aboriginal flag and recognise the unique unifying effect of the flag for all Australians,” said Ms Moore during her opening statement.
She confirmed that WAM Clothing, and flag designer Harold Thomas, were currently in negotiations with the National Indigenous Australians Agency [NIAA] – a Federal Government organisation.
The NIAA is looking into acquiring rights to the flag.
Those discussions are still in the works, and she did not reveal further details about them.
“WAM Clothing pays licence fees and pays ongoing royalties to Harold [Thomas] in accordance with our confidential licence agreement,” Ms Moore said in her opening statement.
That set up what would become a point of contention throughout their evidence: confidentiality.
Senator Pat Dodson from WA opened with questions about how many organisations had been sent cease and desist letters; how many businesses had paid WAM to use the flag design; and what the company’s profits had been over the last financial year.
Moore declined to answer all these, saying they were either confidential information or not directly in front of her.
“Do you intend to answer any questions?” Senator Dodson eventually asked.
Liberal Senator Amanda Stoker questioned whether it was appropriate to delve into the business arrangements between WAM Clothing and Mr Thomas.
“The purpose of this inquiry is to deal with the more complex and big picture issue of how we ensure that the importance of this symbol is given significance, whilst respecting an individual’s private property rights,” she said.
Senator McCarthy noted the Committee hadn’t had the chance to discuss those details yet.
The WAM Clothing directors also refused to disclose details about how they were chosen to hold the rights to the flag, and for how long that period would last for.
And they did not elaborate on their dealings with the AFL, citing confidentiality.
They stressed that reproduction of the flag, for individual use, was okay under the Copyright Act.
Ms Moore also noted they had waived the licence fee for some initiatives and community groups.
Senator Stoker asked WAM Clothing what it might mean for Mr Thomas if the Commonwealth were to acquire intellectual property rights for the flag.
“I think quite clearly that it would have a fairly negative effect overall,” Ben Wooster replied.
The Senate Committee will hand down its final report on the 13 October.
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