Legal Issues Surrounding the Collection, Use and Access to Grey Data in the University Setting

Grey literature is defined as works that are of sufficient importance to be collected and preserved by the library or its affiliated institutional repository. These works are disseminated through channels other than commercial publishing and are generally protected by intellectual property. Intellectual property schemes offer less protection to grey literature’s frequent companion, grey data, even though the collector/researcher and his/her home institution may nonetheless consider the data valuable and proprietary (Schöpfel and Lipinski, 2012). Grey data gives rise to a number of legal and ethical considerations often addressed through university policy. This study of university data repository policies is divided into four parts. Part I considers a definitional framework as defined by Post, Raile and Raile (2010) to demonstrate how political will might be operationalized in the context of developing university data repository policies. Part II describes the legal issues surrounding collection, use, and access to grey data. The authors identify several intellectual property schemes and other proprietary doctrines that may apply. Part II also addresses ownership and access rights to data including contract, statutory or regulatory schemes that require access. Part III examines the grey/open data polices set by institutional repositories. The analysis includes Terms of Use/Terms of Access of six institutions in the United States as reflected in Park and Wolfram (2017) and Park (2018). The analytical framework employed follows Lipinski and Copeland (2015¬) and Lipinski and Kritikos (2018). Part VI considers the tension that results from the need for universities to raise revenue and the public mission/role of the university in society in the same manner as Rooksby (2016). Finally, best practices are forwarded.