Copyright fight brews over sale of Aboriginal flags

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.

There 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.

In 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.

Separately, 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.

Paypal Australia, Vodafone and eBay have already agreed to hand over information to Flagworld to help it track down the people behind Free the Flag and Nichoff Inc.

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.

"I 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 said.

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".

"The [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.

Queensland-based WAM Clothing holds the rights to reproduce the flag design on clothing and has also taken legal action against retailers.