An Update on SSRN – Ownership and Copyright Policies

SSRN, founded in 1994, has become one of the primary tools that legal scholars use to communicate their ideas to the world. UNC Law faculty are heavy users. As of August 2016, UNC Law faculty have posted over 600 articles to SSRN, and have received over 143,000 downloads. By “total number of new downloads” (downloads in the last 12 months), our UNC Law faculty papers are ranked 29th among law schools listed by SSRN.

Over the last few months SSRN has undergone some major changes in ownership (it was purchased by Elsevier). There have also been some apparent changes in enforcement of its copyright and access policies. This post is about what we know about those changes and some responses.

The SSRN-Elsevier Transaction

One of the big reasons why SSRN is so valuable is that it gives authors a platform to provide free online access to their publications worldwide, to anyone, including those that don’t otherwise have access through subscriptions to journals. In the law library, we hear from journalists, interdisciplinary scholars, policymakers, and attorneys who don’t otherwise have access to law review databases but who have been able to identify UNC Law scholarship and want to use it in practice when they can get it for free from places like SSRN.

Whether SSRN would continue to provide such liberal access was called into question in May when for-profit academic publisher Elsevier announced it had purchased SSRN. Academics, librarians, and author groups immediately questioned whether Elsevier—which has a history of imposing highly-restrictive policies for Elsevier journal authors who want to post their own work to a repository like SSRN—would restrict how SSRN functions as a free and open source for scholarship.

For a while, there were no immediate changes. Early on, the Authors Alliance, a group that includes many academic author members and exists to “promote the public good for authors who write to be read,” sent SSRN a list of suggested principles that SSRN might consider adopting to reassure authors of works posted to SSRN. The Authors Alliance principles included what I consider mostly non-controversial things like “if authors decide to withdraw their work from SSRN because of changes in its policies, or for any other reason, they can take down their previously posted works . . .” and “authors may freely update versions of previously posted works.”

By July, Authors Alliance reported in asubsequent post that “[SSRN] would not commit to adopting even one of our principles.”

Around the same time, several authors began reporting strange behavior with SSRN’s copyright notifications and access to their papers. Typically, when a paper is posted to SSRN the submission undergoes a light review by SSRN staff for errors before it is posted publicly. Stephen Henderson (Oklahoma Law) reported via PrawfsBlawg that SSRN had removed the PDF of an article he and a co-author has recently posted. Henderson had informed SSRN, through the check-box form on the submission site, that he held copyright in the work, but in the revision comments SSRN concluded that “It appears that you do not retain copyright to the paper, and the PDF has been removed from public view. Please provide us with the copyright holder’s written permission to post.” Henderson also recounted that:

[A]t least for me [SSRN] gave no effective notice, and they pull papers without asking. Nobody bothered to _ask_ whether I had permission; they simply took down every version of the article and said nothing. Alas. And when I called customer support and someone called back, I pointed out that some profs have hundreds of articles posted for which SSRN doesn’t hold the copyright agreements. “Are you going to take all those down too?,” I asked. The answer, in essence, “Those were posted in error.” Unbelievable.

SSRN has always had a copyright policy. When posting a paper, authors are asked to affirm that they have the necessary rights to share the work online. But SSRN has never asked for proof, which often is difficult to produce especially for older works, that authors retain rights to their own scholarship.

For its part, SSRN responded to the PrawfsBlawg post, calling the incident a mistake due to an incorrectly sent processing email. SSRN CEO Gregg Gordon explained that “Some have taken this mistake to suggest there has been a copyright policy change resulting from our recent acquisition by Elsevier. This is not true.” “We have always worked to improve our processes, but mistakes do happen. While we worked to improve our compliance part of our submission process, we fell short in thinking through the communications with the authors, which resulted in some authors receiving confusing and contradictory emails about their submissions.”

So, what does this all mean?

First, we are left with a few questions that I can’t answer. Whether SSRN will maintain their current copyright policy is an open question. It also remains to be seen what SSRN means by improving the “compliance part of the submission process” and whether there will be a more aggressive push to force authors to document ownership of their own scholarship. I hope that authors will continue to be vocal about problems they encounter. Authors Alliance has asked authors to contact them with these reports.

Second, we do know some things about SSRN ownership, access policies, and commitment to open access that raise serious concerns for authors who want their work to be widely available online. Some of these concerns are new based on the Elsevier purchase, but some have existed for quite some time. This good 2007 paper by James Grimmelmann (Cornell Law), for example, highlights some of these broader concerns. I don’t know how much Elsevier will actually change how SSRN is run, but it’s worth remembering that SSRN has always been a for-profit corporation and that it has never publicly committed to preserving free access to the works that authors have posted there.

Third, given these concerns, it’s good to remember that there are other options for preserving and making law scholarship available online. The UNC Law Library is in the process of launching the Carolina Law Scholarship Repository, which will present the scholarly work of the law school community to the public for free and on the open Web. Just in the short time the Carolina Law Scholarship Repository has been online, we have seen more than 18,000 downloads. This summer, the library completed uploads of three Carolina-affiliated law journals – The North Carolina Law Review, The North Carolina Banking Institute, and The North Carolina Journal of Law & Technology. The library has two major repository projects scheduled for completion in the fall. First, we will upload the full run of The North Carolina Journal of International Law and Commercial Regulation. Second, we will select a group of faculty volunteers with existing Selected Works profiles to have published articles and working papers uploaded to the repository. The project lead in the library is Aaron Kirschenfeld, digital initiatives librarian, who will be sending a message to faculty members with existing Selected Works profiles in the coming week. You can contact Aaron with any questions at kirschen@email.unc.edu.

There are also other repositories like SSRN. A number of news articles about the SSRN transaction have also mentioned the establishment of a new, non-profit subject-based online repository, SocArxiv, which is currently in development and hosted as part of the Open Science Framework. While that service is still getting off the ground, I’m happy to talk with any of our faculty who want to post their works there.

Finally, this SSRN-Elsevier purchase and the concerns it raises are yet another reason to think carefully about the licensing and copyright rights that we as authors sign away that can restrict out ability to further share our own work in the future. On the whole, law journals are relatively permissive in allowing faculty to retain their rights to post author-versions of their articles to open access repositories, and in many cases, final published versions of articles as well. But we should all still be careful to save copies of publishing contracts to prove what rights we have, and when possible insist on public documentation (e.g., noting permission or the application of a Creative Commons in the first footnote) to help others understand what they can do with things we write.