The company with exclusive commercial licensing rights of the Aboriginal flag is in discussions with a federal government agency over use of the design.
WAM Clothing director Semele Moore confirmed the move to a Senate inquiry on Monday but remains tight-lipped about the details.
Indigenous artist and copyright holder Harold Thomas designed the flag in 1971 and non-Indigenous company WAM Clothing owns the commercial licensing rights.
“WAM has entered into discussions with the National Indigenous Australians Agency in relation to the acquisition of the copyright in the Aboriginal flag,” Ms Moore said.
“Those discussions are ongoing. Harold has specifically requested those discussions remain confidential.”
Ms Moore was unable to tell the inquiry how many companies have paid to use the flag design, or have been told to stop using it.
“I don’t have the information [with me] and, no, I don’t intend to submit it,” she said.
Ms Moore also wouldn’t say how long the licensing rights were in place for.
The inquiry is looking at copyright and licensing arrangements for the Aboriginal flag.
Australians can freely fly the flag but there are limitations to its use in other ways.
The inquiry has also been told the copyright could be split so it can be used more widely.
Copyright law expert Michael Green SC said the government could negotiate with Mr Thomas about splitting the copyright while keeping the current commercial rights in mind.
“You can slice copyright in a number of ways,” he said.
“It would be possible for the Commonwealth to do something to create a licence in relation to reproducing the flag as a flag, or to broadcast images of the flag as a flag.
“It entails a conversation that needs to be had with the owner, Mr Thomas, and to respect his wishes.”
Indigenous Australians Minister Ken Wyatt had offered to buy the rights to the flag, but this was rejected.
The long-running issue has reignited after the AFL was unable to use the flag during its Indigenous round.
The league did not strike an agreement with WAM Clothing, which has exclusive rights to reproduce it on garments.
Mr Green said slicing up the rights could happen without creating a new category of copyright.
“You can divide copyright by location and all manner of things in the Commonwealth,” he said.
Mr Wyatt has promised to reach a resolution that respects the wishes of the flag’s artist as well as the rights of all Australians.
Labor is also pursuing legislation that would compel the minister to negotiate with Mr Thomas.