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I'm checking the Elsevier article sharing policies and I think there is a problem with their license of the accepted manuscript (post-review article). Indeed, the instructions say:

Authors can share their accepted manuscript:

Immediately

  • via their non-commercial personal homepage or blog

However,

After the embargo period

  • via non-commercial hosting platforms such as their institutional repository

I don't understand the reason of this limitation, but ok, these are the rules.

However, Elsevier requires you to add the CC-BY-NC-ND license notice into the accepted manuscript. But, here's the flaw: if I can distribute the article on my website with CC-BY-NC-ND license, this means that anyone can re-share the article without limitations (excluding commercial intent), so anyone can upload it to any non-commercial repository. This, in turns, means that I can then upload it to my university repository without embargo.

Isn't this an obvious flaw of the Elsevier's policies?

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    Interestingly, someone seems to have published a paper arguing this a number of years ago. IANAL so cannot answer in detail about whether Elsevier can place a separate condition on the author that doesn't apply to others, or sanction the author for doing something notionally within the terms of the CC license. However, I would say that I'm not sure anyone cares that much - I've seen plenty of people post copies of papers inside embargo periods on various sites without consequence, so I think this rule is more to discourage systematic abuse (YMMV).
    – Stephen McMahon
    Commented May 7, 2023 at 23:41
  • I don't think that Elsevier can put additional conditions to authors because the CC license says "No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits."
    – ocirocir
    Commented May 15, 2023 at 8:49
  • 1
    Just to emphasize IANAL again, but my reading of the license is that 'you' refers to the recipient of the license, not the licencor. Under a normal submission copyright would transfer to Elsevier and they would then become the licencor, so they could e.g. in principle request you comply with a condition before releasing it in that format. I'm not sure what their recourse is if you don't - they may not be able to sue you for copyright infringement, but I don't see anything in the license that would, for example, stop them blacklisting you for future submissions if you didn't comply.
    – Stephen McMahon
    Commented May 15, 2023 at 20:01
  • 2
    Good question: I had also noticed this and wondered. My suspicion is that Elsevier does not really care about the specifics, so long as sharing author-accepted versions at scale is sufficiently inconvenient that universities continue to pay high subscription fees to access the publisher versions. (If you want a publisher who works to make your research available instead of trying it to make it harder to access, I would not recommend working with Elsevier.)
    – a3nm
    Commented Nov 4, 2023 at 6:23
  • @StephenMcMahon: You may want to post an answer referring to (and summarising) this article.
    – Wrzlprmft ♦
    Commented Nov 4, 2023 at 8:22

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