Grey literature is easily orphaned
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Grey literature is easily orphaned



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 2012

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 2012



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  • We receive queries from people who want to use, say, a video produced by Prahran College of TAFE of Outer Eastern TAFE. Can we give permission to make a copy? Sometimes we receive enquiries relating to Tertiary Press, an imprint which was sold to Pearson several years ago; the items may have a pre-Tertiary Press imprint. Are we the copyright owner? We don’t know. Example is the work commissioned by Google, and developed and issued by Boston Consulting Group. Who owns the copyright? What would Google want us to do with it? Who do we ask? If we just want to reproduce one of their nice coloured graphs, what would they say. Grey literature is being produced every day. I found the title on the BCG website, and it provided explicit permission to print, to download, to email the document. Nowadays, the print version might not be catalogued into a library – maybe the National Library would catalogue it. A notable example was a work which was commissioned by a government entity for schools use, and explicitly included a permission to reproduce copies for use in teaching. It also explicitly included a statement referring anyone who wanted to make a copy to the then central Commonwealth agency which had the role of approving reproduction and use of Crown Copyright. Which statement was correct? The issuing entity didn’t exist any more. Swinburne delving into its archives from the 1970s found a nice promotional film by the famous playwright David Williamson, when he was a lecturer in chemistry at Swinburne. We claimed copyright, and in fact gave permission to SBS to use parts of it in a documentary about David Williamson; we also asked Williamson for his approval, just in case. But we drew the line at giving an indemnity against action by an owner of third party copyright.
  • There are large numbers of orphan works that potentially cannot be used for research, educational, commercial, creative or personal purposes because owners cannot identified or located to provide permission . . . Orphan works are also unavialable for commercial purposes, and the resulting benefits that such uses could contribute to the Australian economy.” Attorney-General’s Department, revised June 2012
  • Andrew Albanese, Publishers Weekly, 4 October “ Google, meanwhile, has always argued that it respects copyright, but that it was simply not feasible to seek permission for millions of copyright owners, many of whom are not locatable, for the purposes of creating an index.” AAP President Tom Allen: “After Judge Chin rejected the settlement . . . We went back to the original lawsuit . . . And basically worked out an arrangement that doesn’t resolve the legal issues. We agree to disagree on those . . .” From Tom Turvey, Google’s director strategic partnerships: “We much prefer to innovate than litigate . . .” “ Where this settlement stands as a huge win for Google, however, is on the orphan works question – if a work is truly orphaned, then no copyright owner can come forward to have it removed, thus, under this deal, Google gets to keep orphan works in its database.”

Grey literature is easily orphaned Presentation Transcript

  • 1. Grey Literature is easily orphaned
  • 2. Identity and ambiguityThe 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 morelimited ways>That’s why it is grey 2 2
  • 3. Defining grey 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 3 3
  • 4. Varieties of has hundreds of varieties>Reports>Working papers>Handbooks>Conference papers>Research reports>Reprints>Technical documentation 4 4
  • 5. Varieties of greyAnd many many more . . .>Discussion papers>Brochures>Grey journals>Product data>Press releases>Policy statementsGrey literature is ubiquitous 5 5
  • 6. 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 6 6
  • 7. 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 institutesBut the idea of ownership is loose or non-existent 7 7
  • 8. Ownership is the problemSome examples>Prahran College>Commissioned work>Disagreement between two entities>David Williamson movie 8 8
  • 9. But not the only problemOwnership is not everything>If the owner knows nothing about copyright, a request forpermission may be ignored>Chains of ownership descend through a variety ofentities>But grey lit is often short of pure orphan status>Indemnity issues lead to works being abandoned>Ownership may be clear, but not licences andpermissions which modify the ownership 9 9
  • 10. 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 10 10
  • 11. 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. 11 11
  • 12. 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. 12 12
  • 13. 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 13 13
  • 14. Copyright exceptionsThe main models for orphan works include1. Centrally-granted licences – a central entity (e.g. the Copyright Board of Canada) grants a licence2. 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 works4. A non-commercial use exception – with conditions – as proposed by Fraser and Brennan in Australia5. Other approaches to exceptions 14 14
  • 15. 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> 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) 15 15
  • 16. What is fair use?Section 107 also sets out four factors to be considered indetermining whether or not a particular use is fair.>The purpose and character of the use, including whether such useis 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 thecopyrighted work as a whole>The effect of the use upon the potential market for, or value of, thecopyrighted work 16 16
  • 17. 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 17 17
  • 18. Grey literature is easily orphaned Thank you Derek Whitehead Swinburne University of Technology (03) 92148333 18 18