An Australian company which holds the rights to reproduce the
Aboriginal design on flags and banners is a step closer to suing the
seller of a reworked flag for alleged copyright infringement, after the
Federal Court made orders to help unmask the owners of a website called
"Free the Flag".
The flag is recognised under Commonwealth law as
"the flag of the Aboriginal peoples of Australia and a flag of
significance to the Australian nation generally", but copyright of the
design is held by Indigenous artist and land rights activist Harold
Thomas and he must approve its use.
has been a push in recent years for the government to acquire the
copyright from Mr Thomas but it has not taken steps to do so.
1998 Mr Thomas granted a Victorian-based flag manufacturer, Carroll
& Richardson Flagworld, an exclusive licence to reproduce his design
on "flags, pennants, banners and bunting".
The company is now
seeking to sue the operators of the Free the Flag website for alleged
copyright infringement for selling flags featuring a reworked version of
the Aboriginal flag with a solid yellow outline of Australia in the
middle instead of a yellow circle. One of the flags features the words
"Free the Flag" in the centre.
Flagworld is seeking to sue a Queensland-based company called Nichoff
Inc for copyright infringement for allegedly selling flags on eBay
featuring Mr Thomas' design with no changes.
Vodafone and eBay have already agreed to hand over information to
Flagworld to help it track down the people behind Free the Flag and
On Thursday, Federal Court Justice Bernard Murphy
ordered online shopping platform Shopify Australia to produce to
Flagworld the "name, email address, postal address, and any other
address" linked to the operators of the Free the Flag website.
am satisfied that Flagworld may have a right to obtain relief for
breach of copyright against the prospective respondent(s), being the
persons or entities operating the Free The Flag website," Justice Murphy
He said it was "undesirable" before copyright infringement
proceedings were even launched to "express any firm view about the
prospects of Flagworld’s intended action for copyright infringement".
[flags sold by Free the Flag] ... are not the same as the Aboriginal
flag, but that does not show that Flagworld may not have a right to
obtain relief," he said.
Justice Murphy ordered Australia Post to
provide the same information to Flagworld to help it identify the
operators of the eBay accounts linked to Nichoff Inc, which was
allegedly selling Aboriginal flags.
The court heard a solicitor
for Flagworld had made a "trap purchase" from the Free the Flag website
and the company engaged a private investigator to help unmask the
operator of the site.
A Flagworld manager also bought Aboriginal flags from two eBay sellers linked to Nichoff Inc.
WAM Clothing holds the rights to reproduce the flag design on clothing
and has also taken legal action against retailers.