Green Light for Grey Literature? Orphan Works, Web-Archiving and other Digitization Initiatives : Recent Developments in U.S. Copyright Law and Policy

This paper reviews recent legislative and case developments in the area of copyright law affecting the collection, preservation including digitization and dissemination of grey literature. Alternative frameworks for crafting a legislative solution to impediments the copyright present to these uses are discussed. This includes review of pending legislation targeting the problem of so-called "orphan works" offering a limitation on the monetary damages or injunctive relief the copyright owner may be granted and another pending proposal aimed at relaxing the anti-circumvention prohibition of section 1201 that would allow access to compilations consisting primarily of public domain works that are protected by technical protection measures. The recent SECTION 108 STUDY GROUP REPORT also contain recommendations related to preservation (reproduction) and dissemination of both analog and borne-digital works, including a new provision for internet archiving. Finally, recent case law supporting the archiving of various online sub-literatures is reviewed, such as the disputes over caching and archiving by Google and the TurnItIn plagiarism combating service. Short of a legislative solution, the procedural elements affecting copyright enforcement are assessed to determine the legal risk in use of grey literature. These proposals and cases are analyzed and critiqued, with assessment towards solving the copyright issues related to the preservation and use of various grey literatures. Policy failures as well as successes in the United States can assist policy makers in other countries when contemplating copyright issues related to preservation and use of grey literature.