The agreement transferring copyright for the Aboriginal flag to the Commonwealth appears to be a fair and "thoughtful" deal, intellectual property experts say.
On Tuesday, the federal government announced it had paid more than $20 million to Luritja artist Harold Thomas and licence holders to secure copyright for the iconic flag.
But with the flag now freely available for public use by all Australians, there could be future disagreements about what is appropriate and respectful.
While the terms of the agreement have not been made public, intellectual property expert Rebecca Giblin from the Melbourne Law School said it was important the flag's designer was satisfied with the deal.
"It looks like Harold Thomas has come up with a thoughtful deal and this is the best we could hope for," she said.
"This [the Aboriginal flag] is a really simple but highly evocative design that has gained its value through its adoption by First Nations people in Australia.
"The artist has tried to reflect that in the deal he has reached by sharing the value with Indigenous communities."
Mr Thomas said he would use $2 million to establish an Australian Aboriginal Flag Legacy not-for-profit organisation to support the "interests of Aboriginal Australians and the flag".
The Commonwealth has also agreed to put all future royalties from commercial flag sales towards the work of NAIDOC and to establish an annual scholarship worth $100,000 for Indigenous students in Mr Thomas's honour.
University of Sydney law professor Kimberlee Weatherall said while the $20 million figure seemed reasonable, it was hard to judge if the price was right.
"This is not your usual copyright case," she said.
"The value comes from its adoption, from its use … and its ongoing significance depends on its use by First Nations people."
Years of debate
Despite creating the flag in 1970, Mr Thomas first claimed copyright in 1995 when the Commonwealth officially proclaimed the Aboriginal flag as "a flag of Australia".
His copyright was contested and in 1997 the artist won a legal battle in which the Federal Court recognised him as the designer.
Mr Thomas retained sole copyright of the flag after that time and licensed its use.
Professor Weatherall said the copyright issue had "come to a head in the last few years because of the exclusive licence for certain commercial uses to WAM clothing".
"They've been sending cease and desist letters and seeking substantial licensing fees from organisations who have been using the flag, including Indigenous-led organisations — and WAM clothing is not Indigenous-run," she said.
While this is legally within the rights of a licence holder, Professor Weatherall said it had caused a lot of controversy.
"People think the flag should be available to all Indigenous Australians," she said.
Free for all Australians
With the copyright now in the hands of the Commonwealth, the Aboriginal flag will be managed in a similar manner to the Australian national flag — its use is free and it must be presented in "a respectful and dignified way".
This means organisations previously unable to use the Aboriginal flag will now be able to display it free of charge on things including clothing, sports grounds, and websites.
The right to use the Aboriginal flag has not been reserved exclusively for Indigenous Australians.
Professor Weatherall said this could create new problems.
"Now the Commonwealth gets to decide how the flag is used — you can see why that could be controversial," she said.
"The Australian flag is widely used in a whole range of commercial contexts, and not in ways that everyone would agree with.
"The only thing that is still restricted is the making of actual flags and bunting for commercial sale — the federal government said this was to 'ensure the flags themselves are of the highest quality and continue to be manufactured in Australia'."
What about the Torres Strait Islander flag?
The Torres Strait Islander flag was adopted in 1992 after a statutory body representing the community councils in the Torres Strait ran a design competition.
At the moment the Torres Strait Island Regional Council and 15 communities own the copyright.
Its website says the council gives permission for requests to reproduce the Torres Strait Islander flag under the following conditions:
- Where appropriate, recognition is given to the original designer, the late Mr Bernard Namok
- Original PMS colours are used
- Permission must be received in writing from us, prior to its use
