Free the Flag: Copyright Law and Indigenous Intellectual Property - Dr Matthew Rimmer

Aug 27, 2026

The paper examines the long-running legal, political, and ethical debate around Indigenous intellectual property in Australia, using the controversy over copyright law and the Aboriginal Flag as an entry point. It reviews major litigation and policy developments, including disputes involving Indigenous symbols and art appropriation, and highlights judicial limits shown in cases such as Ward v Western Australia. It further assesses reform efforts and government initiatives across multiple administrations, noting partial responses and gaps, and outlining areas where stronger legislative protection is needed for traditional knowledge.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages63

Reading Time2 h 39 min

AccessFree to download

A History of Indigenous Intellectual Property

Litigation and policy disputes

Reform efforts across governments

SEPTEMBER 2020 THE SENATE SELECT COMMITTEE ON THE ABORIGINAL FLAG FREE THE FLAG: COPYRIGHT LAW AND INDIGENOUS INTELLECTUAL PROPERTY DR MATTHEW RIMMER PROFESSOR OF INTELLECTUAL PROPERTY AND INNOVATION LAW FACULTY OF LAW QUEENSLAND UNIVERSITY OF TECHNOLOGY Queensland University of Technology 2 George Street GPO Box 2434 Brisbane Queensland 4001 Australia Work Telephone Number: (07) 31381599 1. A History of Indigenous intellectual property There is a long history of legal, political, and ethical debate in respect of the topic of Indigenous intellectual property in Australia.1 It is worthwhile contextualizing the current controversy over copyright law and Aboriginal Flag against the background of that larger debate. There has been a series of litigation in respect of Indigenous intellectual property – particularly over the last three decades There have been a number of conflicts over the use of Indigenous intellectual property by the Reserve Bank of Australia as national symbols for currency.2 There has also been skirmishes over the appropriation and counter-appropriation of Indigenous art.3 It is true that von Doussa J of the Federal Court of Australia has shown judicial innovation ina number of cases – most notably, the “Carpets” case,4 and the “Bulun Bulun” decision.5 However, there have been limits to the extent of judicial innovation in Australia – as illustrated by the refusal of the High Court of Australia to recognise the linkage between native title rights and traditional knowledge in the case of Ward v Western Australia.6 The case law has 1 Matthew Rimmer, 'Mapping Indigenous Intellectual Property', in Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015, 1-44. 2 Stephen Gray, ‘Government Man, Government Painting? David Malangi and the 1966 One-Dollar Note’in Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015, 133-154. Yumbulul v. Reserve Bank of Australia (1991) 21 IPR 481. 3 Matthew Rimmer, 'Four Stories About Copyright Law And Appropriation Art' (1998) 3 (4) Media And Arts Law Review 180-193 4 Milpurrurru v. Indofurn Pty Ltd (1994) 30 IPR 209. 5 Bulun Bulun and Milpurrurru v. R & T Textiles Pty Ltd (1998) 41 IPR 513. 6 Western Australia v. Ward [2002] HCA 28; 213 CLR 1. demonstrated that there is a need for a more fundamental legislative reform of laws with respect to traditional knowledge in Australia. Over the past public policy inquiries into the topic of Indigenous intellectual property – although there has been only a partial and mixed array of responses. The Hawke and Keating Governments made an initial effort to explore the topic. In the 1990s, the Attorney-General’s Department released the Stopping the Rip-Offs Discussion Paper.7 Terri Janke was commissioned to produce the landmark report, Our Culture, Our Future in 1999 – but many of its key recommendations have gone unheeded.8 The Howard Conservative Government did not fully realise its policy plans in respect of the protection of traditional knowledge. A Federal bill on the recognition of communal moral rights in respect of copyright works created by Indigenous communities has not been implemented.9 Thus far, there have only been piecemeal reforms. The authenticity trade marks scheme, which was set up in 2000, has collapsed. The Federal access to genetic resources scheme does make reference to native title rights; but only provides limited remedies for non-compliance with the regime. The Queensland access to genetic resources regime has been recently revised to provide stronger protection of traditional knowledge.10 7 Attorney General’s Department, Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples: Issues Paper, Canberra: Attorney-General’s Department, 1994.

FAQs

How does the paper frame the debate over copyright and the Aboriginal Flag?

It contextualizes the Aboriginal Flag controversy within a broader history of legal, political, and ethical debates about Indigenous intellectual property in Australia.

What kinds of disputes over Indigenous intellectual property does the paper discuss?

It describes conflicts involving the use of Indigenous intellectual property as national currency symbols and disputes over the appropriation and counter-appropriation of Indigenous art.

Why does the paper argue that more legislative reform is needed?

It points to limits on judicial innovation and to partial or collapsed policy measures, showing a need for more fundamental legislative reform for traditional knowledge.

Aug 27, 2026

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