250._org_ Grey Literature Strategies Research Project
Full name:  Amanda Lawrence

If you are making this submission on behalf of an organisation, please provide the name: 
Grey Literature Strategies Research Project
Address: Swinburne Institute for Social Research, Swinburne University, John St Hawthorn 3122
Question 1: 
The Grey Literature Strategies research project (greylitstrategies.info) aims to enhance the value of informally published research and information, particularly in the area of public policy. This Australian Research Council Linkage project is a partnership between Swinburne University, Victoria University, the National Library of Australia, the National and State Libraries Australasia, the Eidos Institute and the Australian Council for Education Research, led by Prof Julian Thomas and Prof John Houghton. The research agenda has developed as a result of concerns about the way public policy research and information is being produced and published online, the problems that have arisen in finding, accessing and evaluating that content, and the lack of adequate strategies and systems for collecting and preserving that content.
A key issue for public policy grey literature is Australia’s copyright law, which we believe inhibits endeavours to introduce new ways of delivering information and imposes unnecessary costs and inefficiencies on those wanting to collect and provide access to copyright material especially where that material was produced outside of commercial publishing or without any intention to seek financial gain – which is the case with a great deal of online content.
The internet has resulted in many organisations, government departments and agencies and academic research centres choosing to produce and disseminate documents directly via websites and email lists. This content is highly valuable in the policy research domain however it is often lost due to poor web publishing practices and limitations on the capacity for national or state libraries or other online databases, such as Australian Policy Online (apo.org.au), to help these organisations by making a copy and storing it for long-term access and preservation. While it is possible to request permission from the copyright holder this is a time consuming and costly exercise and one that costs more each year as the amount of policy research posted online increases every year.
In the last 10 years the Australian Policy Online database has catalogued over 14,963 research publications and reports (grey literature) which in the last year alone have had 1.5 million page views. The database was created in response to the changing nature of online publishing, however it is still not able to solve the problem of link rot due to the difficulty of securing copyright permission for open access, freely available online content. This also restricts the site’s potential to value add by developing new mechanisms to provide access, measure impact, track citations and develop other innovative services. The Grey Literature Strategies research project believes that Australian copyright law needs to adapt to allow public institutions such as the National Library and the wide range of online collections to deal efficiently with the high volume of use through digital channels to ensure their ongoing use and access and to allow for innovative new uses and collections.
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The Grey Literature Strategies research project supports the principles for reform proposed by the Australian Law Reform Commission. The principles recognise copyright as an incentive to create and disseminate original works, the importance of the public interest in access to education, research and culture and the promotion of competition and digital innovation.
Creators are also consumers of content, and acts of new creation build on, are inspired by, and reinterpret works that have come before. Hence, fair access to and use of content is central to one commonly recognised purpose of copyright law: providing an incentive to create new works. Our understanding of “creativity” does not merely encompass new copyright works, but new ways of accessing and engaging with content, which can become important in their own right.
Copyright law is important to the “protection of commercial activities of right holders designed to exploit material for profit”. Currently, copyright exceptions can regulate far more than those activities that could pose a commercial risk to right holders. In particular it imposes undue regulation on content that was intended not for commercial gain but for public good. Copyright reform should recognise the diverse motivations and formats for producing copyright content and be flexible enough to allow this diversity to flourish and be preserved where appropriate.
The Grey Literature Strategy research project believes that copyright law should be device and technology neutral where possible. In an environment where a diversity of products and technologies can be used to create, engage with and share content, it is essential that Australia’s copyright laws be future proofed against rapidly outdated technological limitations. 
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The efficient performance of search engines is critical to the work and research of researchers, policy makers and the whole community. The Grey Literature Strategies research project supports any changes to the Copyright Act which are necessary to allow efficient and effective caching and indexing.
The Grey Literature Strategies research project believes caching indexing and other necessary internet functions are best supported by a fair use style exception.
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A great deal of valuable online content is lost due to poor management of copyright assets, both for individuals and for collections. The Grey Literature Strategies research project believes that there should be clarity around the legality of creating back up copies of documents and other online content in collections and whether these can be made available to the public.
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The Grey Literature research project supports the view that the Copyright Act needs amendment to bring its preservation copying exceptions into line with the practicalities of digital copying.
The limit of one copy of a work for preservation purposes should be removed from the preservation exceptions of the Copyright Act and replaced with a purpose-based limit, such as ‘limited to the number of copies required to preserve the work’.
The Grey Literature research project also supports the National Library’s argument that the preservation sections of the Act should use the uniform and technology-neutral term ‘copy’ to replace the present variety of terms - ‘reproduction’, ‘facsimile’ and ‘comprehensive photographic reproduction’  - and that the opportunity be taken to simplify the Act by consolidating the present scattered sections on preservation copying.
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Amendments to allow greater digitisation and communication of works by libraries and other collecting agencies is an area in which the Grey Literature Strategies research project sees significant potential for productive change to the Copyright Act.
The project supports the views of the National Library and other collecting agencies in seeking amendments to support:
-        Routine digitisation of collection material
-        Availability for publication of unpublished material
-        Accessibility of the Library’s harvests of Australian Internet content
Routine digitisation of collection material
 The Grey Literature Strategies research project seeks a change to the Copyright Act that would support digitisation by libraries, with the following framework:
An assumption that material held in library collections may be digitised and displayed online, balanced by these safeguards:
-        An obligation on the library to adhere to any instructions on copying and access that the copyright owner has conveyed to the library
-        An obligation on the library to inform users of its digitised material that they may use it only for certain purposes, the purposes being ‘fair use’ if this concept becomes law, or the existing fair dealing exceptions; other uses requiring permission from the copyright owner
-        An obligation on the library to take down copies of in-copyright material promptly from online display when requested to do so by the copyright owner, and to communicate clearly its general willingness to take down copies in such cases
-        A date limit; support for digitisation projects to apply only to works that were created more than 15 years ago; this limit is intended to protect copyright owners against digitisation of works that are still available new in a reasonable time at an ordinary commercial price, without requiring a library to do availability searches for every item proposed to be digitised.
The Grey Literature Strategies Research Project does not propose that a ‘reasonable search’ to find copyright owners be one of the safeguards. This higher test should be reserved for uses of orphan works beyond research or study. The digitisation of an orphan work for inclusion in a library’s catalogue is more likely to benefit a copyright owner in alerting them to the existence of the work, than to prejudice their interests.
Introduction of a copyright term duration for unpublished works
A great deal of policy related research and information is produced informally and posted online but whether this content is published or unpublished can be unclear. In the case of academic ‘working papers’ for example, they are often described as unpublished despite the fact that they have been posted online for public access and use. The Grey Literature Strategies Research Project believes that the current Australian copyright law, that has unpublishd works remain in copyright in perpetuity creates confusion and undue restrictions on using a great deal of valuable public interest content. It also exacerbates issues of long-term access to works in Australian cultural collections. The National Library of Australia alone estimates it has at least  2,041,720 unpublished items in its collection. The introduction of a copyright term duration for unpublished works would free up the digitisation of items of historic cultural significance in Australian collections. 
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The Grey Literature research project supports the proposal that the Copyright Act permit the publication of orphan works with certain safeguards. A great many public documents produced by government, academia and other organisations that have been previously made available to the public are now orphan works and no one is able or willing to claim copyright ownership. Committees are disbanded, organisations fold, multiple authors are uninterested or unable to provide copyright permission. But these documents are of enormous interest to the public. Australian Policy Online has recently been seeking copyright permission for the National Library to digitise policy reports such as the 1973 Karmel Report on Schools in Australia and the 1994 Rudd report on Asian languages. It has taken months to secure this permission and involved any number of public servants in both federal and state departments and agencies.
We support the National Library’s proposal in response to question 21 that changes to the Copyright Act that would assist libraries in providing digitised copies online for research or study, and propose an obligation to take-down a digitised orphan work at the request of a copyright owner as one of the applicable safeguards. Where there is an intention to use an orphan work for a purpose beyond research or study, the user should perform a reasonable search to find the copyright owner. A reasonable search, or standard industry practices to locate or identify the rights holder, and a prompt response to a take-down request from a copyright owner, should provide sufficient defence against liability for copyright infringement.
Publication of orphan works, with these safeguards, would fit within the broad ‘fair use’ provision or flexible fair dealing proposed for the Copyright Act.
The Grey Literature research project does not support the introduction of a licensing regime for orphan works, because of the costs and impracticality of administering such a scheme by collecting institutions. A centrally-granted licence, or extended collective licensing scheme, will have a chilling effect on use of orphan works by public institutions and individuals. This would be particularly detrimental in the case of public policy documents that were produced and distributed without charge in the first instance and were intended for open access and use by the community.
The Grey Literature research project believes fair use, or a similar open-ended exception based on “fairness”, strikes an appropriate balance between the interests of rights holders, the diversity of orphan works in cultural collections and wider public interest in access to and engagement with information and culture.
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The Grey Literature Strategies research project supports the view contained in the submission by the ADA and ALCC that data and text mining, as a subset of transformative use, may be best supported by a flexible fair-use style exception.
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The Grey Literature Strategies research project supports the views put forward by the ADA and ALCC submission that recommend the implementation of a broad, open-ended, and flexible exception to replace the existing fair dealing exceptions, and other uses of copyright material that will not cause unreasonable harm to the creator or copyright owner of the material. To preserve the certainty provided by the current fair dealing exceptions, any open-ended and flexible exception can explicitly refer to the purposes covered by the fair dealing exceptions. This is the approach adopted in the US fair use provision, which states that the fair use of a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” will not be an infringement of copyright (Copyright Act, 17 USC § 107).
While the fair dealing exceptions in Australia have been important for identifying limits to the exclusive grant of copyright afforded to copyright owners under the Act, the provisions are not sufficiently broad to supply an effective balance for both owners and users under Australian copyright law in the digital environment. 
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The Grey Literature Strategies research project supports the view that the other free-use exceptions in the Act should be retained as minimum accepted uses of material, and supplemented by an open-ended, flexible exception to allow for further innovation in the creation and delivery of content. 
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Question 53: 
The Grey Literature Strategies research project is seeking to improve the ways in which the community can access and use policy related research and documents. Currently there are major impediments to libraries and other digital projects making copies of documents available in online collections due to the limitations of the Australian copyright law. As a result we are now facing a digital black hole of content from the mid 1990s onwards as content that was online and intended for public use is moved or taken down and no copy of it has been kept by a collecting body due to restrictions on copyright. It is now estimated that 30% of online content is being lost every few years. This has enormous repercussions on our capacity as a nation to engage in evidence-based policy as the evidence base is disappearing. Given that a great deal of this content was valuable public policy related material previously intended for public use this is a serious national issue that needs to be addressed.
Given the body of case law underpinning the US ‘fair use’ provision, its familiarity to end-users in Australia and flexible, technology neutral drafting we support the view of incorporating the language of section 107 of the US Copyright Act 1976:
“…The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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; and
the effect of the use upon the potential market for or value of the copyrighted work.”
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
To address concerns that such a provision might provide less certainty, the Grey Literature Strategies research project supports the Naitonal Library’s suggestion that existing exceptions could be listed as categories within this general exception.
As a suggested framework for exceptions that would be listed to illustrate fair use, the exceptions could be grouped along the following lines:
·       Copying for research or study or personal and domestic  use
·       Copying for public good -  including but not limited to, reporting the news, criticism and review, parody,  copying for disabled, copying for parliament, legal representation, replacement of missing/damaged copies,  preservation copying in a public or cultural institution
·       Copying for digitisation by libraries, with safeguards
·       Copying of orphan works, with safeguards including  take-down obligations on the copier if the work ever becomes unorphaned
·       Copying for internal administrative purposes, including the creation of back-up copies of data.
If this approach is adopted, the Act should be clear that the listed categories do not define the extent of fair use; the Act should explicitly state that other circumstances that fit within the broad definition of fair use are permitted.
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The Grey Literature Strategies research project supports the view of the National Library and other bodies that agreements which purport to exclude or limit existing or any proposed new copyright exceptions should not be enforceable and that the Copyright Act 1968 (Cth) should be amended to prevent any restriction of fair dealing copyright exceptions and exceptions for copying by libraries and archives. 
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