grey literature is easily orphaned
DESCRIPTION
Presentation by Derek Whitehead, Director Information Resources, Swinburne University of Technology at the Where is the evidence conference, National Library of Australia, Canberra, 10 October 2012TRANSCRIPT
Grey Literature is easily orphaned
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Identity and ambiguity
The nature of grey literature is
>Its obscurity
>Its poor distribution
>Its mixed value (a euphemism)
>Its ephemeral nature
>Its low value
>Grey literature is less traded, less monetised, and used in more limited ways
>That’s why it is grey
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Defining grey
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Some of the current approaches to definition:
>Not controlled by commercial publishers, i.e. where publishing is not the primary activity of the publishing body
>“Semi-published”
>May not enter normal channels or systems of publication, distribution, bibliographical control
>By contrast, distribution is unsystematic, capricious, unreliable
>The need for intermediation – someone has to collect it for it to survive or be accessible
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Varieties of grey
www.greynet.org has hundreds of varieties
>Reports
>Working papers
>Handbooks
>Conference papers
>Research reports
>Reprints
>Technical documentation
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Varieties of grey
And many many more . . .
>Discussion papers
>Brochures
>Grey journals
>Product data
>Press releases
>Policy statements
Grey literature is ubiquitous
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Transformed by the Internet
> Easier to find
> (But the dark web has lots of grey literature – in the shadows)
> Easy to copy and use
> (But obtaining permission may not be any easier)
> More readily published
> (But remains “unpublished”)
There is probably a grey literature explosion under way
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Who owns it?
Grey literature might be “owned” by
>Corporate entities
>Crown government entities (the Crown)
>Other government entities
>Unincorporated entities such as conferences
>Universities and research institutes
But the idea of ownership is loose or non-existent
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Ownership is the problem
Some examples
>Prahran College
>Commissioned work
>Disagreement between two entities
>David Williamson movie
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But not the only problem
Ownership is not everything
>If the owner knows nothing about copyright, a request for permission may be ignored
>Chains of ownership descend through a variety of entities
>But grey lit is often short of pure orphan status
>Indemnity issues lead to works being abandoned
>Ownership may be clear, but not licences and permissions which modify the ownership
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Not the only problem
> If the owner knows nothing about copyright, a request for permission may be ignored
> The owner’s purpose in issuing the grey creation is mostly not monetisation – publicity, persuasion, self-promotion, hobby reasons, and so on.
> The rainbow of reasons for creating a work are not reflected in the monochrome Copyright Act
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Orphan works
“. . . broadly defined as a situation where ‘the owner of a copyright work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner.” (ALRC, following US Copyright Office)
> ALRC quotes the Hargreaves Report suggesting that these represent ‘the starkest failure of the copyright system to adapt”
> “locking away millions of works”
> A wider issue than orphan status is that there is no clarity of ownership so no-one can approve use. Or cares to.
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Orphan works . . . difficult to use
“Difficult to use” covers a lot of territory, including grey literature (para-orphan works?) Here are some concepts.
> Abandoned works (foundlings?) – the author never intended to exercise copyright
> Ownership may have been forgotten on lost
> Works may have indeterminate ownership – such as many multiple owners.
> Works owned successively where the chain of ownership has become tenuous
> Permission may have high transaction costs – chasing an owner is more than the use is worth.
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Difficult to use
> The work may have low value or benefit, making any attempt to locate the copyright owner a waste of time
> Multiple variants with varied copyright status
> A business ceases to trade, with no successor as copyright owner
> A work is distributed unattributed and the owner is not known and cannot be found
> Undocumented permissions; e.g. student projects
> The document is not accompanied by a licence, but once was
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Copyright exceptions
The main models for orphan works include
1. Centrally-granted licences – a central entity (e.g. the Copyright Board of Canada) grants a licence
2. Limiting remedies – related to a diligent search and the nature of use made (commercial/non-commercial)
3. Extended collective licensing – e.g. a collecting society gains the power to licence orphan works
4. A non-commercial use exception – with conditions – as proposed by Fraser and Brennan in Australia
5. Other approaches to exceptions
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The ALRC enquiry
> There is currently an enquiry into copyright exceptions run by the Australian Law Reform Commission
> There is an issues paper (August 2012) Copyright and the digital economy at http://www.alrc.gov.au/inquiries/copyright-and-digital-economy
> Orphan works are definitely in scope – paras.149-167
> Costs are in scope too – whether current law “imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material;” (Qu.1)
> The enquiry specifically examines fair use (paras. 271-298)
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What is fair use?
Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
>The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
>The nature of the copyrighted work
>The amount and substantiality of the portion used in relation to the copyrighted work as a whole
>The effect of the use upon the potential market for, or value of, the copyrighted work
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Fair use in practice?
> Fair use has been considered in Australia several times but now “the ALRC heard that there may now be more of an appetite for a broad flexible exception to copyright . . .”
> Google book case has been settled with interesting consequences
> Fair use provides a way ahead for grey literature – orphans and non-orphans
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Grey literature is easily orphaned
Thank you
Derek Whitehead
Swinburne University of Technology
(03) 92148333
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