Month: April 2022

This year the theme of World Intellectual Property (IP) Day, April 26, is “IP and Youth: Innovating for a Better Future”. As the World Intellectual Property Organization (WIPO) puts it;

“Across the globe, young people are stepping up to innovation challenges, using their energy and ingenuity, their curiosity and creativity to steer a course towards a better future.”

How true. Creativity can come at any age. The New England Journal of Medicine has recently published a study showing that peak human intellectual activity occurs around the age of 70 when the brain begins to function at full strength, because at this age the interaction of the right and left hemispheres of the brain becomes harmonious, expanding creative possibilities. That’s good to know and perhaps helps explain why so many seniors take up new crafts, make music, learn to play musical instruments, write books, and become artists in later life. But at the same time, the creativity of youth has amazing potential.

This was brought home to me in spades by an event mounted by and for young entrepreneurs (and I mean young, between the ages of 9 and 14—middle school and junior high school students) a couple of weeks ago close to home, Victoria BC, sponsored by the Gustavson School of Business at the University of Victoria (UVic). The idea is not unique to Victoria or UVic. Since 2007 the Acton Academies, based in Austin, TX, have been organizing Children’s Business Fairs. Acton Academies now exist around the world. According to the Children’s Business Fair website, over 1000 events involving over 50,000 young entrepreneurs have been held in 341 cities in 16 different countries. It sounds like a great program. If interested, you can get more information on their website to organize a children’s business fair in your own community.

I am sure that the creative output in these events around the world matches the imagination and innovation that I observed at UVic’s young entrepreneurs’ fair, called Kidovate. According to the Victoria Times Colonist, Kidovate was launched in 2019 to introduce young people to the basics of being an entrepreneur. Students follow a graphic workbook created by UVic entrepreneurship professor Brock Smith that provides a step-by-step guide on how to set up a venture. If they wish, the students can arrange for a student mentor from the School of Business. Dr. Smith told me that UVic has even prepared a teaching module integrated with the Department of Education curriculum that middle and high school teachers can use to engage their students. Students learn about pricing, financing, marketing, customer service, record-keeping, innovation and regulation. Kidovate helps the young entrepreneurs obtain one day business licenses from the City for Kidovate Market Day (the $100 registration fee is waived). Students themselves merchandise their products, organize business cards and signage, and in some cases will take orders for later delivery.

But what about innovation and creativity? There was lots of it on display. My first stop was a stand operated by Mulita, age 13 and her friend Lily. She was selling keychains, fridge magnets, and pins (including Ukrainian flag pins) made from modular plastic pieces glued together. I asked her where the design ideas came from. “We make these things together with our friends, and we draw and think up the designs ourselves” she replied. Original art!

Next door was Abba, aged 11, selling similar products made of baker’s dough, then painted in bright colours. She too created her own designs.

Phyfer, aged 13 and Zane, 12, had produced 3D printed sea creatures and other animals in moulded plastic, which they then decorated, assisted by design software they had programmed themselves. (As I wrote recently, machine assisted creativity is still a human creation, qualifying for copyright protection.) On and on it went; macrame, jewellery, gift cards, tie-dye, wood carvings, hand-made soaps—all (or most) from original designs. I bought a couple of cut-out gift cards, which could be customized with a personalized greeting; an orca in the background (lots of them along the BC coast) framed by the cut-out. I think the creator of these cards was the one who told me that she was “Nine years old” but then hastened to add, “…but I’m almost ten!”.

A nice touch was the fact that a portion of the proceeds would be going to various charities, the Canadian Red Cross, Ukrainian relief, a Homeless Shelter. It was a very impressive small business showcase cum arts and crafts market; the artists were definitely keen, very articulate and clearly motivated. There were 70 stands with 90 participants. Next year Prof. Smith said he hopes to have 200 stands and 300 participating. And when I suggested that he add an IP component to his teaching module, he readily agreed. We all know (or should know) that IP is a valuable business asset.

Innovation and IP cover more than copyright and design of course. The WIPO website highlights several interesting inventions created by young innovators (young defined as below the age of 35). I have no doubt that some of the teens and pre-teens that I met at Kidovate will be making their own contributions to creation and innovation as they grow into adults. They are already off to a good start.

© Hugh Stephens 2022. All Rights Reserved

Last week I discussed the copyright needle buried in the 2022 Canadian budget haystack, a reference to impending legislation to amend the Copyright Act to fulfill Canada’s obligation under the USMCA/CUSMA to extend its term of copyright protection from the life of the author plus 50 years to “life plus 70”. The amendments will be tacked on as part of the 2022 Budget Implementation Bill along with a number of other measures unrelated to the budget. The only remaining question on term extension is whether the government will do the right and sensible thing and simply automatically extend the term of protection going forward (normally there is no retroactive extension for works that have already fallen into the public domain, even if that just happened) or whether they will listen to the lobbying from anti-copyright voices who are proposing that Canada institute a barrier to automatic extension by requiring rights-holders to renew their copyright through a registration process in order to access the additional period of protection. As I explained in last week’s blog, it would be a major mistake for the government to do this, creating an unnecessary bureaucracy, causing confusion and increasing complexity for users who will have to research whether copyright has been extended on a work, and likely being inconsistent with Canada’s international obligations under the Berne Convention.

But in addition to stating that copyright extension amendments will be included in the forthcoming budget bill, the budget document also added the following;

“The government is committed to ensuring that the Copyright Act protects all creators and copyright holders. As such, the government will also work to ensure a sustainable education publishing industry including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.”

Why was this in the budget? Does it signal that there will also be legislation to restore some balance to use of unlicensed commercially published educational content by educational users? That would be welcome and long overdue. To achieve this, the overly-broad educational fair dealing exception introduced in 2012 needs to be amended and made more precise.

And what does “a modern and innovative marketplace that can efficiently serve copyright users” look like? Could it be that we will have a return to collective licensing of educational content after the disastrous Supreme Court of Canada decision last year that pulled the foundation out from under Canada’s collective licensing system for educational materials? (The Supreme Court upheld the Federal Court of Appeals decision that “mandatory tariffs” were mandatory only for providers of educational materials, not for users such as colleges and universities.) If this is the case, these are probably not measures that would be slipped into a budget implementation omnibus bill, although I suppose it is always possible. After all, there has already been extensive consultation on the fair dealing question. But if legislation to fix the educational publishing crisis is not being brought forth now as part of budget implementation, why then the reference in the budget?

It is likely to send a signal to publishers and authors that relief is coming (hopefully soon) even though it won’t be as part of the copyright extension process. Publishers, authors and their collective society, Access Copyright, have been looking for an opportunity to propose amendments to the Act to address problems with the definition of educational fair dealing and to fix the mandatory tariff issue. Because the Copyright Act has to be amended before the end of 2022 to deal with term extension, (according to the terms of the CUSMA agreement), this seemed to provide an opportunity to deal with these other pressing copyright issues. The budget reference therefore is a recognition that something needs to be done and a signal that fixing the problems is high on the government’s agenda. A sign of good faith intentions if you will. Given the “confidence and supply” agreement reached with the New Democrats, the Trudeau government now has some headroom and the ability to get legislation passed since it can expect to govern until the statutory date of the next general election in 2025.  

Inclusion of references to “a sustainable educational publishing industry” in the budget should mean that the government is finally ready to move forward to repair the damage caused by opening the fair dealing floodgates in 2012. There has already been extensive consultation, two Parliamentary committees have reviewed the issue and have recognized the problem, and a lengthy court process upholding findings of unfairness by York University, as a proxy for the post-secondary sector, has been completed. Although the educational sector will fight tooth and nail to leave things as they are and continue their free ride at the expense of the creators of educational content, it is time to move from consultation to action. After a decade of litigation and consultation, remedial action is required if Canada is to maintain a viable educational publishing sector so that Canadian students can continue to benefit from the creation of culturally-relevant educational materials. The impact on the publishing sector has been devastating; jobs in the book industry declined by over 30% between 2012 and 2019, the education sector has deprived Canadian creators and publishers of approximately $190 million in unpaid royalties under tariffs certified by the Copyright Board, and a number of publishers have exited the education market.

The fix to fair dealing is relatively straightforward. It needs to be narrowed so that the education fair dealing exception applies only when a work is not commercially available, as per the recommendation of the Standing Committee on Heritage in 2019. This would avoid the current college and university practice of reproducing works, piece by piece, supposedly to enable students to exercise their individual fair dealing rights, with the result often being that the entire work, or most of it, is made available to students in course packs all under guise of fair dealing and with no license or payment to the rights-holder. This will require a change to the legislation.

So too will clarifying the role of the Copyright Board of Canada in setting “tariffs” (licence fees) for use of materials in the repertoire of a collective society such as Access Copyright. This is a complicated issue, made more complicated by the finding of the Federal Court of Appeal (FCA), recently upheld by the Supreme Court. Until these court decisions, the practice and understanding had been that payment for use of any materials subject to a Copyright Board tariff decision became mandatory on all users if they reproduced covered content without obtaining a license.

However, based on its reading of the history of the legislation the FCA, upheld on appeal by the Supreme Court, ruled that the tariff is mandatory only when applied to a user. In other words, a rights-holder cannot withhold a licence to reproduce material if that material is subject to a tariff established by the Copyright Board, assuming the user agrees to pay the tariff. But the reverse (imposing a requirement to pay on a user who reproduces material covered by a tariff without obtaining a licence) is not mandatory. Instead, a rights-holder would have to bring an infringement action against the user. This decision undermined the system of collective licensing for educational works established some 30 years ago to avoid the necessity for individual users and institutions to have to negotiate licences with individual rights-holders, or for individual rights-holders to have to resort to litigation against individual users each time there was an alleged infringement. It was a system that worked for both authors and users, until it began to break down about a decade ago over licence negotiations. When the collective and users could not agree on a licensing agreement, the Copyright Board stepped in to establish fair remuneration based on estimates of the amount of copying engaged in by user institutions. Once a tariff was established, it was considered binding on all users if they accessed any of the repertoire covered by the tariff. And now a key pillar of that system has been removed by the courts.

It is not clear whether the promise in the budget document to bring about a “modern and innovative marketplace” to “efficiently serve copyright users” is a reference to the reinstitution of a viable collective licensing regime, probably in parallel with a review of the mandate and procedures of the Copyright Board. Hopefully that is what it means. A collective licensing regime is by far the most efficient means to serve users.

When the Copyright Act was last reviewed and overhauled in 2012, the intention was that this would be a process conducted every five years. That period has now doubled, although in the interim there have been consultation papers issued on various aspects of copyright (AI, Internet of Things, Data Mining, Orphan works, etc.), and a review by two Parliamentary committees which brought forth numerous recommendations. All this to prepare for Copyright Act updating. Despite the preparatory work, this will take time. Some of these issues, like the ones mentioned in the budget, should be fast-tracked and acted on now.

If the statement in the budget was a down-payment of sorts, a statement of good intentions, that is all well and good. But we all know that a road paved with good intentions, but no action, leads to only one place. And that is a hell of a place to be. The government should act on its commitments laid out in the budget and convert those intentions into legislation as quickly as possible. Other potential changes coming out of the much-needed and long-overdue review of the Copyright Act should also be put in motion so that a full overhaul of the Act can be completed before the next election. 

© Hugh Stephens 2022. All Rights Reserved

There it was! The copyright needle in the budget haystack. As plain as day–buried on p. 274 of Canadian Finance Minister Chrystia Freeland’s 280 page 2022 budget under “Other Legislative Measures” along with a grab-bag of about 40 other measures.  These ranged from legislation to enable Canada’s participation in the Lunar Gateway, to Criminal Code amendments to ban the communication of statements, other than in private conversation, that willfully promote antisemitism by condoning, denying or downplaying the Holocaust, to dealing with clean drinking water and better infrastructure for First Nations communities by repealing the Safe Drinking Water for First Nations Act (?), and so on. Almost four dozen unrelated ornaments hung on the budget Christmas tree. Item number 5 was labelled “Amendments to the Copyright Act”.

Why would an amendment to the Copyright Act be buried in the budget (along with the other assorted seemingly random legislative measures)? Because it’s a convenient way to pass legislation, that’s why. You scoop up all the legislative loose ends and you append them to the budget bill, and if the budget passes, and it will, the other attached pieces of legislation pass as well. Given that the Liberal government is in a minority situation, yet has just signed a “confidence and supply agreement” with the opposition New Democratic Party (NDP) by which the New Democrats will support the government in confidence votes for the next three years provided that the Liberals add some social programs advocated for by the NDP, like a dental plan and a pharmacare plan, to their “to do” list, then bundling loose ends and even some potentially controversial legislative items into a budget bill is a good way of ensuring that these legislative amendments become law with as little fuss and scrutiny as possible.

This is also a well-known tactic in the US Congress where unrelated pieces of legislation get attached to “must-pass” money bills on a regular basis. That is how the CASE Act, a worthy piece of legislation that had been blocked by just one Senator, was passed, as I wrote last year (“Making Sausage: How the CASE Act Finally Became Law”). That legislation created a Copyright Claims Board within the US Copyright Office, a sort of “small claims court” for copyright infringements. The CASE Act will help small creators bring infringement claims without having to resort to expensive litigation but had been blocked by Sen. Rod Wyden of Oregon. However, it was added to the 5,593 page, $1.4 trillion Consolidated Appropriations Bill, 2021 that funded the COVID relief program and kept the US government functioning. When that Bill finally passed the US Congress, so did the CASE Act, and it is now part of the law of the land. So good things can happen from using this procedure. Sometimes you just “gotta do what you gotta do”.

But back to the Canadian budget, introduced on April 7. With regard to amendments to the Copyright Act that are to be incorporated into the Budget Implementation Bill when it is introduced, (probably in May), the budget document had this to say;

“In Budget 2022, the government proposes to introduce amendments to the Copyright Act to extend the general term of copyright protection from 50 to 70 years after the life of the author as agreed under the Canada-United States-Mexico Agreement.

The government is committed to ensuring that the Copyright Act protects all creators and copyright holders. As such, the government will also work to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.”

Let’s unpack the first part of this statement. There are two elements–what has to happen, and what some anti-copyright elements hope will happen. Extending the term of copyright protection is required to implement Canadian commitments made during the renegotiation of NAFTA, culminating in the NAFTA 2.0 agreement, known as the USMCA (or CUSMA in Canada). While it is a given that this will happen, it is still not completely clear as to how it will be implemented. According to Article 20.89.4 (c) of the USMCA/CUSMA, Canada has 2.5 years from the date of entry into force of the USMCA/CUSMA, which was July 1, 2020, to implement the provision. In other words, it needs to be enacted into legislation by the end of 2022.

Some opponents of term extension, notably University of Ottawa law professor and prolific blogger Michael Geist, have argued that even though Canada has a legal obligation to extend its copyright term, it can do so by instituting a registration requirement for rights-holders if they want to benefit from the added period of protection. In effect this proposal, which was picked up by one of two Parliamentary committees that reviewed the Copyright Act back in 2019, would impose an additional registration process (copyright renewal) on a rights-holder as a condition for gaining access to the additional 20 years of protection. It would put in place a gateway, a hurdle, an additional bureaucratic barrier if you will, as part of Canada’s implementation of its commitment. The objective is to make it more difficult for rights-holders in Canada to access the same degree of protection enjoyed by rights-holders in similar circumstances in the US, EU, UK, Australia, Japan and many other countries. In other words, for those who oppose extending Canada’s copyright term, they grudgingly concede that extension will happen but their intent seems to be to make it as difficult as possible for rights-holders to take advantage of it.

Imposing a copyright renewal registration requirement is an exceedingly bad idea, and one that was not endorsed by the other Parliamentary Committee (the Heritage Committee) that also undertook copyright review. It would impose an additional and unnecessary burden on rights-holders to be able to access the full term of protection they are entitled to for their works but worse, it would create uncertainty and cause confusion for users who would find it difficult, costly and time-consuming to verify whether or not a work fell under the “life plus 50” (life of the author plus 50 years) or the new “life plus 70” term. There is plenty of evidence to demonstrate the downsides of a copyright renewal scheme, using the example of what happened in the United States.

For many years, determining whether or not a work was still protected by copyright in the US was an unnecessarily complex and difficult task owing to the existence of a renewal requirement in US law. And for older works it remains complicated. Under the 1909 US Copyright Act, works copyrighted in the United States prior to January 1, 1978, were originally subject to two consecutive copyright terms, each of 28 years duration. The first term was granted upon registration of copyright, but the second term required an additional registration and renewal after the expiration of the first 28 year term. After the Act was modified in 1976, the second renewal period was upped to 47 years, for a total term of protection of 75 years, assuming renewal was applied for.

A problem was that many rights-holders neglected to renew their copyright. (Anti copyright advocates would no doubt say this was a good thing, but it complicated matters for users who found it difficult to determine if a work was in the public domain or still protected). Failure to renew applied not just to authors of books, but also to rights-holders for movies and other creative works. There are examples of where some of the rights in a movie were renewed, e.g. the screenplay, whereas other elements were not, leading to more confusion. Apart from the injustice occurring from an inadvertent oversight in complying with a somewhat arcane law that deprived a rights-holder (which could be the estate or heirs of the original author) of the economic benefits of copyright, users found it difficult to determine whether a work was still covered. To know for certain whether a work had been renewed, and therefore was still protected by copyright, a user has to search the Catalogue of Copyright Entries maintained by the US Copyright Office.

A good example of the problems caused by imposition of a copyright renewal requirement is illustrated by the FAQ answers provided by this online library website in the US in response to the question, “How can I tell whether a copyright was renewed?”;

“One easy way to check, sometimes, is just to see if there was any edition published more than 28 years after the original edition, and see if there’s a renewal notice in that newer edition. This doesn’t always work– a lot of books simply don’t get reprinted– but if there is such an edition, it can be an easy check to make.

Another way that doesn’t involve an exhaustive copyright record search is to write to the author, or their agent or estate, or to the last publisher of the book, and see if they can tell you whether the book’s copyright was renewed…It’s also possible to do a search yourself of the copyright records. For 1978 onward, they’re online at the Copyright Office…

Copyright records prior to 1978 can also be found in print and microform at the Library of Congress, and at other major libraries around the country, including many Federal Depository Libraries…Since a copyright renewal has to be sometime in the 28th year, you’d look for renewals in the records for the original copyright date plus 27 years and the original date plus 28 years. So if the copyright was originally 1941, you’d look at the volumes for 1968 and 1969 to see if there was a renewal…

You can also arrange for the Copyright Office to do the search for you. There’s a form you can fill out and send to them, and they’ll eventually let you know if they find any renewal records, and if so, what they say. This has gotten rather expensive as of late; as of October 2019, the fees amount to $200 per hour (with a 2-hour minimum) for them to search their files for you…”

Simple, eh? This costly and unnecessary step, requiring an additional bureaucracy, is what will happen if Canada unwisely adopts a copyright renewal requirement as part of the process of extending its copyright term. No other country, to my knowledge, has ever imposed such a barrier when it extended its term of protection. (More than 80 countries worldwide have “life plus 70” as their term, another good reason for Canada to join the majority of its trading partners and harmonize its copyright term with theirs, benefiting Canadian creators in the process). As for the US, given the problems presented by copyright renewal, it abolished this system in 1992 when it passed the Copyright Amendments Act, making renewal automatic. The renewal system was messy and complicated as you can see by this US Copyright Office interpretive bulletin. Today in the United States, (indeed for all works created since 1978) the situation is much more straightforward for new works. Authors get a period of protection of “life plus 70” with no renewal or registration requirement. It is beyond comprehension that Canada would want to go backward and institute a renewal requirement.

A further barrier to making the full term of “life plus 70” conditional on a renewal registration is Canada’s membership in the Berne Convention, the international copyright convention to which almost all countries belong. Berne requires a minimum copyright term of life plus 50 years (with no registration requirement) but allows members to apply a longer term if they wish. Members applying a longer term may offer that longer term to rights-holders in all Berne Convention countries or they may limit the benefits of the longer term to nationals only of those countries that offer a reciprocal term of protection. For this reason, Canadian rights-holders will gain the benefit of an extra period of protection in the EU once Canada extends its term and brings it into alignment with the period of protection granted in EU member states.

If Canada instituted a renewal registration requirement to gain access to the additional twenty years of protection, this would almost certainly be a violation of the Berne Convention principle that protection must not be conditional upon compliance with any formality, i.e. the Berne cardinal principle of “automatic” protection. (No-one knows for sure if it would be a Berne violation because no state has ever been dumb enough to shoot itself in the foot by imposing one). However, it has been argued by those opposed to extending the term of protection that since Berne only requires a protection period of “life plus 50”, a registration requirement for the additional period would not be inconsistent with the Convention. The only close parallel we have suggests that this is not true.

Based on the precedent of what happened when the US finally joined Berne in 1989, it is possible that Canada could technically require Canadian rights-holders to register for the additional period but would still have to extend the benefit of the full “life plus 70” term to rights-holders from other Berne Convention countries without requiring them to register, even as it subjects Canadians to this restrictive measure. This is what happened when the United States joined Berne. For many years, the US maintained a copyright registration system that was incompatible with Berne’s principles, which was one of the reasons it declined to join the Convention. When the US finally decided it needed to join Berne, it was required to abolish its compulsory registration requirement used to establish copyright but nonetheless retained voluntary registration in cases where rights-holders wished to bring infringement cases. However, because of Berne, the US could not apply this additional registration requirement to non-US rights holders. This has resulted in the rather bizarre situation where a US rights-holder has to register copyright in order to bring an infringement action in the US but a non-US rights-holder is exempted from doing so. In this instance, foreigners get “better than national treatment” in the United States. Were Canada to impose registration requirements, it would be disadvantaging Canadian rights-holders compared to non-Canadians.

Dr. Geist ignores all the drawbacks and pitfalls of a renewal registration regime and instead repeats a number of tired and in some cases debunked arguments about term extension imposing a “hidden tax on consumers”. It is no more a tax than an environmental recycling fee is a tax. There are probably some instances where consumers are required to pay more for a book that is protected by copyright than one in the public domain, although the evidence of this is inconclusive. Public domain works are often no cheaper than works still under copyright. Just as there are valid reasons why consumers pay more for products that come in recyclable containers, so too there may be valid reasons why a book under copyright carries a higher retail price than a public domain work. One of these may be royalties paid to the author. Pirated movies and streaming services also offer lower costs to consumers than legitimate services; it doesn’t follow that we should compare prices for pirate services with those in which distributors license content legally. I don’t have the time and space in this blog post to deal with all the misleading claims about the supposed costs of term extension, but I covered many of them in this earlier posting, “Copyright Term Extension in Canada: Facts versus “Fake News”.

So, in the end, what is the government likely to do? Hopefully it will take the sensible option of extending Canada’s copyright term of protection in a simple, straightforward, and transparent way, avoiding the costly and unnecessary creation of a copyright renewal registration process. Given the signals that were sent during a consultation paper on the extension issue in February of 2021, it will provide some means to address the question of “orphan works” and “out of commerce” works that is of concern to the “LAM” (Libraries, Archives and Museums) sector, but will sensibly ignore the copyright minimalists campaign to complicate the copyright system for both rights-holders and users alike by adding a registration requirement. This common sense outcome would indeed make the search for that copyright needle worth the effort.  

© Hugh Stephens 2022. All Rights Reserved.

People who are really into flags are known as vexillologists, a rather specialized field that studies the history, symbolism and usage of flags. If the papers offered at the periodic International Congress of Vexillology are any guide, then many things attract the attention of flag scholars, such as “The Flags of Bulgarian Municipalities”, “The Flags of Genghis Khan”, or “The History of the Flag of Gambia”, but copyright does not seem to be one of them. Yet copyright has a vexillological angle, one that just cost the Australian government over $20 million dollars. This was the sum paid to Aboriginal artist Harold Thomas to acquire the copyright to Mr. Thomas’ design for what has become known as the “Aboriginal Flag”.

Thomas designed the flag in 1970 and the black, red and gold flag was widely adopted by Aboriginal groups. In 1995 it was given “national flag” status by the Australian government, but Australia did not “own” the flag, at least not until now. Two years later, in 1997, an Australian court affirmed that Thomas was the copyright holder for the flag design. Thomas did not claim the copyright on the flag until after the Australian government had made it official under the Flags Act, and he was challenged by two other purported creators. However, the judgement was in his favour, and ever since there has been uncertainty over who can use it, and in what form. In 1998, after winning the judgement, Thomas granted a licence to a company called Flags 2000, giving that company the right to reproduce and manufacture the flag, and in November 2018 he licensed the design to a non-indigenous company, WAM Clothing.

That licence gave WAM the exclusive right to reproduce the flag design on clothing, and in physical and digital media. It had been traditional for major Australian rules and rugby league teams in Australia to feature the flag on football uniforms during events honoring Aboriginal athletes, but WAM issued cease and desist orders unless they received royalties, arousing considerable controversy. Non-profits who were selling tee-shirts with the flag on it were also sent letters demanding payment. WAM was made out to be the bad guys, but they were protecting the rights they had paid for. However, it didn’t help that WAM’s part-owner, a non-Aboriginal, had been fined $2.3 million for selling fake Aboriginal art through a previous company.

The fundamental problem was that it is highly unusual to have a flag that is regarded as a national symbol be subject to private copyright. A compulsory licence was proposed, and hearings were held. However, the Australian Senate concluded that government action to, in effect, confiscate Thomas’ copyright would result in perpetuating oppression and injustice against Aboriginal peoples.  The solution was to negotiate with Thomas to acquire the rights, including extinguishing rights sold to licensees such as WAM. Thomas will retain the moral rights.

As reported in Lexology, “As part of the deal, Flagworld will keep its exclusive licence to be able to manufacture Aboriginal flags for commercial use, however the government has confirmed that Flagworld would not stop people from making their own flags for personal use…The Government has confirmed that all future royalties the Commonwealth receives from Flagworld’s sale of the flag will be put towards the ongoing work of NAIDOC.” (National Aborigines and Islanders Day Observance Committee).

In addition to buying out the rights to the flag, the Australian government agreed to establish an annual $100,000 scholarship named for Thomas to help Indigenous students develop skills in leadership, and to create an online history and education portal for the flag. So, it seems, that problem has been solved for the people of Australia, and Harold Thomas will be a happy man. But Thomas’ flag is not the only Indigenous flag widely flown.

In North America the “Mohawk Warrior” flag has flown since the mid-1970s at various Indigenous-related events. The flag, designed by Indigenous artist Karoniaktajeh Louis Hall, was first hoisted when a group of Mohawks occupied land in the Adirondacks in New York State. It became widely known as a native symbol during the so-called “Oka Crisis”, a standoff between the Mohawk community of Kanesatake and Canadian police and troops in July of 1990. Since then it has been flown at many protest meetings and occupations involving different native groups (not just Mohawks), as well as at cultural gatherings and activities. If you want one of these flags they are available from Amazon, Flagmart, Etsy and so on. Or you can get the design on hoodies, tee-shirts or facemasks. The big difference between the Mohawk Warrior flag and Harold Thomas’ aboriginal design in Australia is that unlike the “official” aboriginal flag, the unofficial Mohawk flag is available for anyone to use through a Creative Commons “Attribution-Share Alike 3.0 Unported license.” That means any user is free to share, i.e. copy and redistribute the material in any medium or format and to adapt by remixing, transforming or building upon the material for any purpose, even commercially.”

When it comes to the use of official flags, copyright generally does not apply because of the age of the flag designs, putting them in the public domain. In the US, federal government works, including Old Glory, cannot be copyrighted. However, the flag may be protected by other means. For example, flags can be protected under Article 6ter of the Paris Convention for the Protection of Industrial Property of 1883 (1967 Stockholm Act). The purpose of this article is to prohibit the registration and use of trademarks that are identical or similar to notified official emblems. In Canada, the Canadian flag is also protected through trademark registration, prohibiting commercial use without permission.

In British Columbia, where I reside, there is a provincial flag adopted in 1960. According to the BC government’s website, the flag is protected by Crown copyright (although since Crown copyright in Canada only lasts for 50 years from the date of creation, it would seem that the copyright on the flag must have expired in 2010). The BC government makes digital artwork files available for download, but the user must not alter the aspect ratio of the flag, use part of the flag, or adjust the image in any way. And just in case you weren’t thinking, “The provincial flag should never be used as a tablecloth, carpet or seat cover, but instead be hung in a place of honour.” What about as a window covering, which I have seen many times in lieu of curtains? Maybe that is a “place of honour”?

And then there is the Vancouver Island flag, featured with some others in the image at the top of this blog post. I took the photo at a local marina. (It is the blue ensign, second from the right). This flag is a historical curiosity and depending on whether it is considered an official pennant or not, it could be long out of copyright protection or potentially still covered. In 1865, the British Admiralty authorized British colonies with naval assets to commission their own flags by superimposing (defacing, in vexillological terms) the seal of the colony on the fly leaf of the blue ensign. This was the pattern used for British colonial flags in many territories in Africa, the West Indies and the South Pacific and is still used for the state flags of the various Australian states. While in theory such a flag could have been produced for the Crown Colony of Vancouver Island, which was established in 1849, in August of 1866 Vancouver Island was merged with the Colony of British Columbia. A few years later, in 1871, the combined colony entered Canada as its sixth province. If such a flag had been produced for Vancouver Island in 1865-66, its Crown copyright would have long since expired. However, the flag flown today was conjured up by a local vexillologist, Michael Halleran, in 1988, based on the 19^th century British Admiralty regulations. Halleran had it produced in a local flag shop, and it has become increasingly popular, as a novelty. While Halleran says he does not claim copyright in the flag, that does not necessarily mean the flag is in the public domain.

Flags have been used to make political statements throughout history, and the present is no exception. The “truckers’ convoy”, (I could call it a “freedom convoy” but that would be a misnomer, unless you define “freedom” to mean that I can do whatever I want whenever I want without any regard for the impact of my actions on others), which for three weeks from late January to mid-February occupied the streets of Ottawa right in front of the Parliament Buildings, adopted several flags to get its point across. Apart from Canadian flags festooned from every 18-wheeler and pick up truck (to demonstrate their “patriotism”, you see), this rag-tag bunch managed to round up Confederate flags, US Gadsden libertarian “Don’t Tread on Me” flags (with a Canadian variation, converting the snake into a Canada goose), a Nazi flag and even a revived version of the “patriote” flag from the 1837 rebellion in Lower Canada. All these flags carry hidden or not so hidden messages. It just goes to show that when a cause is flagging, flag your intentions with a new banner. (pardon the pun). Create a new flag (or revive an old one) for the vexillologists to discuss at their next international convention. If its original, your flag just might enjoy copyright protection. Unless of course it is the “Jolly Roger”. Imagine pirating a pirate flag!

© Hugh Stephens 2022, All Rights Reserved.