Teresa Scassa - Blog

The social sciences research community has been buzzing over the announcement on May 17, 2016 that the Social Sciences Research Network (SSRN) has been acquired by Elsevier Publishing Group.

SSRN is a digital repository that was created in order to enable researchers in the social sciences to share their work in advance of its publication. Prior to the launch of SSRN, long delays between submission and print publication of papers had been a significant problem for researchers – particularly those working in rapidly changing and evolving fields. In addition, it was not always easy to find out who was working in similar areas or to be aware of developing trends in research as a result of the long publication delays. SSRN allows researchers to publish working papers, conference papers, and pre-print versions of accepted papers – as well as (where permitted by journals) published versions of papers. Access to the database is free to anyone with an Internet connection. This too is important for sharing academic research more broadly – many published academic journals sit behind digital paywalls making broader public access impractical or impossible. SSRN has been a game-changer, and it is now widely used by academics around the world as a vehicle for sharing research.

Elsevier is a commercial publisher which has, in the past, focused primarily on the fields of science, technology and health. It publishes over 2000 international journals. In recent years it has developed other information “solutions”. These include not only digital publishing platforms, but also data analytics, as well as tools to enhance and facilitate collaboration among researchers.

The controversy over the acquisition of SSRN lies in the deep distrust many researchers seem to have about the willingness of a commercial publisher known for its top-dollar subscriptions and generally restrictive access policies to maintain a publicly accessible information dissemination service that is free to both academics and the broader public. The founders of SSRN maintain that Elsevier, which also publishes open access journals, understands the need for broad sharing of research and has no intention of placing the site behind a paywall. They argue that SSRN’s acquisition by Elsevier will only enhance the services it can offer to scholars.

Critics of the sale of SSRN to Elsevier raise a number of concerns. One of these is, of course, whether SSRN will genuinely continue to be available as a free resource for sharing research. The reassurances of both Elsevier and SSRN’s founders are firm in this respect. Nevertheless, there are concerns that Elsevier might more strictly police what content is available on SSRN. It is likely the case that some academics post articles to which their publishers hold the copyright on the view that enough time has passed since publication to make free dissemination normatively if not legally acceptable.

The potential that access to some content might be limited is only one of the issues that should be on scholars’ radar – and it is probably not the most important one. By acquiring SSRN, Elsevier will enhance its expanding analytics capability – and data analytics are an important part of its business model. Researchers should consider the nature and extent of these analytics and how they might impact on the publication, dissemination, valuation and support for research in other venues and other contexts. For example, how might granting agencies or governments use proprietary data analytics to make decisions about what research to fund or not fund? Will universities purchase data from Elsevier to use in the evaluation of their researchers for tenure, promotion, or other purposes? Does it serve the academic committee to have so much data – and its analytic potential – in the hands of a single private sector organization? Given that this data might have important ramifications for scholars, and, by extension, for society, are there any governance, accountability or oversight mechanisms that will provide insight into how the data is collected or analyzed?

Essentially, the noble project that was SSRN has evolved into a kind of Facebook for academics. Researchers post their articles and conference papers to share with the broader community – and will continue to do so. While for researchers these works are what define them and are the “value” that they contribute to the site, the real commercial value lies in the data that can be mined from SSRN. Who collaborates with whom? How many times is a paper read or downloaded? Who cites whom, and how often? The commercialization of SSRN should be of concern to academics, but it is data governance and not copyright that should be the focus of attention.

What is the status of copyright protected documents or data sets that are provided to government institutions as part of regulatory, judicial or administrative processes? In my previous blog post I considered one instance where a court decided that a regulatory regime effectively expropriated the copyrights in works submitted to certain federal regulatory boards. In early May of this year, an Ontario court considered a similar issue: what happens to the copyright of land surveyors in the documents and drawings they prepare when these are submitted to Ontario’s electronic land registry system.

Keatley Survey Ltd. v. Teranet Inc was a class action law suit brought by a group of Ontario land surveyors against the private sector company authorized by the government to run its electronic land registry system – Teranet. Teranet recovers its costs of creating and operating the system by charging fees for access to and reproduction of the documents contained in the registry. The plaintiffs in this case argued that they had copyright in those documents, and that they were entitled to fees or royalties from the commercial use of these documents by Teranet.

It was undisputed by the defendants that there was copyright in the survey plans created by the plaintiffs. What was more contentious was the issue of ownership of that copyright. The defendants argued that copyright in the plans was owned by the Crown (in this case, the Ontario government). Under section 12 of the Copyright Act, Crown copyright subsists in works that are “prepared or published by or under the direction or control of Her Majesty or any government department. . . .”. The court rejected the argument that the plans were “prepared” under the control of government. Instead, Justice Belobaba ruled that the plans were produced independently of government by the surveyors at the requests of their clients. The fact that the plans might need to conform with regulatory requirements did not mean that they were prepared under the direction or control of the Crown. Justice Belobaba noted that if this argument were accepted, then “lawyers who file pleadings or facta at court registries would lose the copyright in their work simply because they complied with the statutory filing requirements about form or content.” (at para 33).

Teranet also argued that Crown copyright applied because the plans were “published” under the control of government. Justice Belobaba expressed doubts on this point, finding that the reference to publication in s. 12 of the Copyright Act did not independently create a basis for Crown copyright. He stated: “Just because the federal or provincial government publishes or directs the publication of someone else’s work (as opposed to governmental material) cannot mean that the government automatically gets the copyright in that work under s. 12 of the Copyright Act.” (at para 37) Nevertheless, he did not decide the matter on this point. Instead, he found that the legislation relating to the land registry system specifically establishes that any copyrights in surveys are automatically transferred to the Crown when they are filed.

Section 165(1) of the Land Titles Act and section 50(3) of the Registry Act both provide that “all plans of survey submitted for deposit or registration at a land registry office become “the property of the Crown”.” (at para 6). While this might simply refer to ownership of the physical property in the documents, Justice Belobaba found that other provisions in the statutes addressed the rights of the government to copy, computerize and distribute the documents, and to do so for a fee. He wrote: “The statutory prescription and authorization for copying the plans of survey strongly suggests a legislative intention that “property of the Crown” as used in these statutory provisions includes copyright.” (at para 7).

If copyright in these documents becomes the property of the Crown, how does this come about? The Copyright Act requires that any assignment of copyright must be in writing and signed by the owner of copyright. Justice Belobaba found that the declaration required of surveyors to certify that their plans are correct and in accordance with the legislation did not amount to an assignment of copyright. This is an interesting point. Ultimately, the court finds that copyright is “transferred to the province” when plans are deposited, but that there is no signed assignment in writing. This must, therefore, be a form of regulatory expropriation of the copyright in the surveys and plans. Here, any such expropriation is implicit, not explicit. Since copyright is a matter of federal jurisdiction, it is fair to ask whether a provincial government’s expropriation of copyrights is an improper interference with federal jurisdiction over copyrights. Certainly, a provincial government might require an assignment of copyright as a condition of the filing of documents; what is less clear is whether it can actually override the Copyright Act’s provision which requires assignments to be signed and in writing. There is an interesting jurisdictional question below the surface here.

Because the court concludes that the plaintiffs did not retain copyright in their surveys or plans, there was no need to consider other interesting issues in the case relating to fair dealing or whether there was a public policy exception permitting copying and distribution of the documents.

This decision combined that that in Geophysical Services Inc., strongly suggests that courts in Canada are open to arguments around the regulatory expropriation of copyrights by governments in the public interest. In both cases, the courts found support for the expropriation in legislation, although in neither case was it clear on the face of the legislation that expropriation of copyrights was specifically contemplated. As digital dissemination of information, public-private partnerships, and new forms of commercialization of data may impact the commercial value of information submitted to governments by private actors, governments may need to be more explicit as to the intended effects of their regulatory schemes on copyrights.