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 (But remains “unpublished”)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

dwhitehead@swin.edu.au

(03) 92148333

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