Harold was an artist. It was all he had ever wanted to be.
Painting landscapes was Harold’s gift. His ability to record on canvas the light and essence of a place captured the hearts and wallets of many art lovers.
As hobby became a career, he proved the doubters wrong by living his dream.
At age 24 Harold did something completely different to anything he had attempted before.
He designed a flag.
A simple black stripe over a red stripe, with a yellow circle in the centre.
Harold’s flag was adopted by the indigenous people of Australia, and proudly flown above their “tent embassy” permanent protest site on the lawns opposite the Australian Parliament.
24 years later, the Australian government formally recognised Harold’s design as an alternative national flag. Parliament may have relocated, but the flag resolutely flies over the tent embassy to this day.
Normally flags are designed on behalf of a government, which means the government controls the usage rights. In this case, Harold designed the flag as an individual, and it was subsequently adopted by a nation.
Due to this intriguing legal quirk, Harold retains ownership of the copyright to his design. He had to go to court to secure those intellectual property rights, but the court ruled in his favour.
In practice, this means that every single usage of the design must first be approved by Harold.
Harold would be within his rights to charge licensing fees to anyone wanting to use his design.
Think about that for a second. Substitute Harold’s flag for the Union Jack or the Stars and Stripes to get an appreciation of the magnitude of his intellectual property rights.
Harold intended the flag to be “a strong and unifying symbol for Aboriginal rights and justice”. He allowed it to be freely used by education, healthcare, government and not-for-profit organisations where their work benefitted Australia’s indigenous peoples.
Everyone else was supposed to pay him a licensing fee to use the design.
Nothing happened to them. The burden of enforcement falls to the property rights owner.
At this point, it is worth noting that Australian copyright law does not support the concept of “fair use”.
With few exceptions, a copyright holder can seek damages from anyone reproducing their intellectual property in part or in full without consent. This means actions like posting film clips, quoting text, sampling music, taking photos, or wearing a tattoo potentially violates copyright.
A young girl once won a competition to design the Google logo for a day. Her drawing featured Harold’s flag behind several cute iconic Australian animals. Google sought Harold’s consent to display his flag so that the winning design could be proudly displayed on the Google home page.
Neither Google, nor the young girl with dreams of sharing her art with the world, qualified for a copyright exception. Those are reserved for critics criticising, lawyers litigating, reporters reporting, students studying, comedians satirising or parodying, and governments doing whatever they like.
24 years later the benign neglect of Harold’s property rights came to an abrupt end. Now an old man, he sold the exclusive global image rights for his design to a litigiously minded third party.
Gone were the days of unenforced property rights. The new license holder flexed their legal muscles.
Cease and desist orders threatening legal damages were fired off to everyone ranging from professional football teams featuring the flag on their uniforms to souvenir shops selling artworks by indigenous artists.
Harold’s story reminded me of a time long ago when I was served with a similar legal notice. The 150+ page document of dense legalese could be summarised as follows:
“To whom it may concern:
You may have used something that we believe we own.
You didn’t ask our permission first, and that hurt our feelings.
We imagine that your unauthorised usage has injured us immensely.
Cease and desist immediately.
We demand damages sufficient to pay off the national debt of a small banana republic.
Refuse to pay and we will take you to court.
We will drag proceedings out until you are bankrupted by the legal costs of defending yourself.
We have more money than you, so can afford to outlast you.
Very expensive lawyer at large patent trolling law firm
P.S. My time is billed at £1000 per hour
P.P.S. It does not matter who is right, that is not how the legal system works. Pay up. Now.”
I was shocked.
Over the course of the following week, I met with a series of lawyers who specialised in intellectual property disputes. All those discussions followed a similar pattern.
The lawyer would skim through the weighty document and ask a few questions.
“What do you think?” I would demand.
“You have done absolutely nothing wrong” they would reply.
“So what do I do next?” I would ask.
“Pay them” they would advise.
“What! Why?” I would protest.
The lawyer would give a resigned sigh. Then they would provide an explanation along the lines of the following, using the tone of voice you might use to try and explain quantum physics to a toddler:
“Because you can’t afford to defend the matter in court.
There is no guarantee you will win.
Lose and you have to pay damages, and possibly the other side’s legal fees. Their lawyers are VERY expensive and very good at exactly this kind of shakedown.
A win may be a Pyrrhic victory. There is no guarantee the other side would be required to pay your legal costs, which would be in the region of £10,000 per day.
So you pay them off. Chalk it up to experience. Get on with your life.”
The first couple of times I heard this message I protested at how unfair that was. The lawyers would give me an apologetic shrug.
The fifth time I heard it was from a family friend, who happened to be a senior lawyer. She observed that the legal system had been weaponised. Justice is only available to those who can afford it.
She noted that already the cost of shopping around for lawyers was consuming time and money I would otherwise have devoted to servicing my own paying clients. The longer and harder I fought, the greater that cost would be.
A simple cost-benefit analysis showed settling the lawsuit was the logical answer.
Bullying and extortion offend my sensibilities. My instinctive reaction in such circumstances has always been to hit back hard. And win. No hesitation. No holding back.
In my experience bullies are cowards. When faced with unexpected resistance, most times they slink off in search of easier prey. Occasionally they give you the mother of all ass kickings.
A lawsuit brought by a faceless legal entity asserting property rights is difficult to stand up to. Legal responses incur vast fees. The lawyers make money win, lose, or draw.
Alternative responses are… less legal.
Behind every faceless entity is a person making decisions. Everyone has pressure points.
It is often said that sometimes the way to win is to play the man, not the ball. Other times it is better to change the premise, and simply play not to lose. Occasionally it is best to not play the game at all.
A frank conversation with the man behind the curtain resulted in the threat being swiftly withdrawn and a negotiated settlement. The lawyers had been right about one thing, defending yourself is expensive.
It is unlikely those facing damages claims for using Harold’s design will get off so lightly.
That got me thinking about ownership and property rights. Things aren’t what they seem.
My son’s year seven science textbook states that something is alive if it can perform a discrete set of functions: movement, respiration, sensitivity, growth, reproduction, excretion and nutrition.
Every day billions of living things, ranging from tiny single-cell amoeba to enormous blue whales, happily perform these functions without giving a passing thought to ownership or property rights.
When something looks like food, catch and eat it. If something sees you as food, fight or run away.
Some creatures piss on trees or put up walls to mark out their territory. The sense of ownership is fleeting, more perception than reality.
At some point, a stronger creature will inevitably come along and take that territory from them, just as they claimed it from whomever owned it previously.
Over time, humans have attempted to impose rules and order over what can be owned and how that ownership can be transferred. A multitude of inconsistent belief systems, customs, laws, and rules govern the behaviour of those who choose to be bound by them.
To survive we each have basic needs that must be met: Clean air. Water. Food. Warmth. Shelter.
The air we breath is freely available to all, and not owned by any one person.
Yet we have taken something we don’t own, and granted governments the power to sell off the right to pollute it, injuring our health and literally taking years off our lives in the process.
Water and warmth
Water is freely available to most. Aquifers, rivers and lakes naturally replenish without human involvement.
In cities, we pay for the convenience of having drinkable water on tap.
This typically takes the form of a subscription model, where we pay for access to a supply network for a commodity product.
Usage may be metered on a pay-per-use basis, as with other utilities such as bandwidth, gas, electricity, and sewerage. However, it is impossible to identify exactly which litre or megabyte or kilowatt we purchased.
This creates a situation where we never actually owned the thing we are paying for.
Before we consumed the commodity it belonged to the utility provider.
After we consumed the commodity it is gone, leaving us with a bill.
Years ago I saw an interview with the CEO of a bottled water company. He made the surprising statement that he wasn’t in the water business, he was in the bottle business.
The water was a commodity, indistinguishable from any other water source.
He was selling a brand.
The illusion of control.
A perception of health benefits associated with sealed bottled water.
Food is more complicated.
Sometimes we can freely take what we find. Blackberries beside the Thames path. Pick them and the worst that may happen is an upset stomach from the weed killer they have been sprayed with.
In other circumstances, this same action would break all manner of property ownership rules. Spit-roasting that deer found in Richmond Park is generally frowned upon.
Cruelty to animals.
When we grow food or purchase it from the supermarket, we are acquiring ownership of a good.
However, when we purchase a meal at a restaurant we are buying a service.
The chef sourcing ingredients and preparing the food. The waiter serving it to us. The dishwasher who cleans up afterwards.
The price of the food is inseparable from the service elements required to enjoy it.
Similar to the utility example above, before we order the meal doesn’t exist. While we are eating, we briefly own the food on our plate. Once the meal is concluded we have a full belly and the bill.
Housing in the United Kingdom is a mess.
When a person buys a freehold property, they assume ownership of the land and buildings upon it.
By contrast, when a person buys a leasehold property, what they are really buying is the right to occupy land that they do not own, for a finite period.
This makes them tenants, who make periodic ground rent payments to the actual owner, the freeholder.
If the leaseholder repeatedly violates their lease agreement, the freeholder can kick them out. For example advertising their flat on Airbnb when the building rules prohibit short term tenancies.
Of course ownership of a freehold property can also be taken away, via Compulsory Purchase Orders or eminent domain claims. There is always someone tougher and meaner waiting in the wings!
Property owners don’t own their view. Today’s harbour views could tomorrow be looking at the back of a new waterfront apartment tower.
Nor do property owners own their light. A neighbour is within their rights to build an extension or plant a tree that blocks out the sun or casts a big shadow.
The ownership of ideas is fascinating to explore.
Nils Bohlin invented the seatbelt in cars. He gave it away for free to save lives.
Richard Ashcroft wrote “Bittersweet Symphony”, yet never made a penny from his iconic song. He had sought, and been granted, permission to sample an old Rolling Stones tune. A subsequent dispute saw all credit and royalties from the song’s success go to the Rolling Stones.
The band “Men at Work” borrowed just two bars of music from a 70-year-old folk song written by a long-dead school teacher. 27 years after they released one of Australia’s most recognisable songs, the band was successfully sued for 60% of the cumulative royalties the song had earned.
Marvin Gaye’s litigious offspring even managed to win millions in a lawsuit by laying claim to ownership of “that late 70s feeling”.
Not a sequence of notes or a tune.
Not specific lyrics.
The CSIRO earned over £200 million in royalties from its invention of Wifi, after asserting their intellectual property rights in court.
Wave the flag
Flags can be waved in triumph or surrender. They can signal danger or mark the finishing line.
It will be fascinating to watch how the story of Harold’s flag plays out.
The legal rights that protected the CSIRO’s invention also screwed Richard Ashcroft.
The ownership of an idea that fattened the Gaye children’s wallets, nearly emptied mine.
They have been used to delay progress, prolong suffering, and suppress competition.
Traditional car manufacturers bought up early electric car firms just to close them down.
Pharmaceutical companies generate huge returns from keeping drug prices high to the detriment of patients and health systems everywhere.
Imagine how different the world would be had Tim Berners-Lee followed their lead, and sought to milk his invention of the internet for all it was worth, rather than giving it away for free?
Harold’s simple design, something that can be drawn by hand in less than 15 seconds, has the potential to make somebody very wealthy indeed.
Unfortunately that somebody is unlikely to be Harold.
- Alexander, I. (2019), ‘Explainer: our copyright laws and the Australian Aboriginal flag’, The Conversation
- Allam, L. (2019), ‘Government could buy Aboriginal flag copyright to settle dispute, lawyer says’, The Guardian
- Allam, L. (2019), ‘Ken Wyatt ‘hopeful’ of resolving Aboriginal flag copyright dispute’, The Guardian
- Australian Copyright Council (2017), ‘Fair Dealing: What Can I Use Without Permission‘
- Australian Copyright Council (1997), ‘Thomas v Brown & Tennant  215 FCA (9 April 1997)‘
- BBC (2019), ‘Life processes’, BBC Bitesize
- Beaumont-Thomas, B. (2019), ‘Bittersweet no more: Rolling Stones pass Verve royalties to Richard Ashcroft’, The Guardian
- Carrington, D. (2018), ‘Air pollution cuts two years off global average lifespan, says study’, The Guardian
- Conseil Européen pour la Recherche Nucléaire (2013), ‘The birth of the Web’, CERN
- Croft, J. and Fortado, L. (2016), ‘Top London lawyers charge £1,000 an hour, study finds’, Financial Times
- Department for Communities and Local Government (2004), ‘Compulsory Purchase and Compensation‘
- Gabbatt, A. (2010), ‘Men at Work stole Down Under riff from Guides’, The Guardian
- Gov.uk (2019), ‘Extending, changing or ending a lease‘
- IP Australia (2016), ‘CSIRO’s WLAN patent‘
- Minerals UK (2017), ‘Legislation & policy: mineral ownership‘
- Moses, A. (2010), ‘Oh dear: Google flagged over logo dispute’, Sydney Morning Herald
- O’Grady, S. (2009), ‘The man who saved a million lives: Nils Bohlin – inventor of the seatbelt’, The Independent
- Office of National Statistics (2017), ‘Families and Households: 2017‘
- Pasick, A. (2015), ‘A copyright victory for Marvin Gaye’s family is terrible for the future of music’, Quartz
- Roberts, A. and McFaul, S. (2019), ‘What is a leasehold?’, MoneySavingExpert
- Taylor, J. (2019), ‘Heathrow third runway: See how proposed flight paths will affect where you live’, Evening Standard
- Thomas, H. (2018), ‘The Artist‘
- University of Chicago (2019), ‘The Air Quality Life Index‘
- Vaughn, A. (2019), ‘UK fracking industry pushes for review of earthquake limits’, The Guardian
- Wilson, W. and Barton, C. (2019), ‘Briefing paper Number 8047: Leasehold and commonhold reform’, House of Commons Library