The New Chinese Export: Orphaned Children--An Overview of ...
Grey literature is easily orphaned
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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 (But remains “unpublished”)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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