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What HC battle between big publishers & ‘rogue’ websites could mean for free access to research

The case, which is due to be heard in July, raises questions around affordable access to science and social science research for public.

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New Delhi: In a high court not very far away, empires of the academic publishing world are fighting to quash an insurgency led by “rogue” websites and the “Robin Hood” of science. What’s at stake is free access to a galaxy of research and literature in the sciences and social sciences, and the outcome may have international ramifications.

The case in question is a copyright infringement suit filed in the Delhi High Court against two websites called Sci-Hub and LibGen, which provide free access to millions of research papers and books. 

The matter was filed in December 2020 by Elsevier, Wiley India, Wiley Periodicals and the American Chemical Society — top scientific and academic publishing houses that market, sell and license various digitised journals, including The Lancet and Cell. The three publishers, therefore, hold exclusive rights to several scientific and social science publications. They have now demanded that the two websites be banned from sharing their “literary works”. 

The journals have filed several similar infringement suits against the two websites in other countries, including Austria, Belgium, Denmark, France, Germany, Italy, Portugal, Russia, Spain, and Sweden. 

In the past two years, the suit has come up before the Delhi High Court at least 40 times. However, no interim injunction or temporary bar has been issued against the websites so far. 

While the case is being heard in the high court, several researchers and academicians have issued statements and come together in support of Sci-Hub and LibGen. They’ve also highlighted the impact any ban on the websites’ publishing could have on research in India.

Legal and scientific experts have also pointed to a more “systemic problem”, appealing to the government and the scientific community to address why such websites are needed in the first place. They’ve called for greater efforts to make research more accessible, and spitballed the idea of a ‘Netflix for research’.

Also read: RSS affiliate wades into Sci-Hub row, urges govt to ensure access to books, articles online

‘Revolutionised science’

In their suit, the publishers have named Alexandra Elbakyan, a Kazakhstan-based computer programmer and founder of Sci-Hub, who is often referred to as the ‘Robin Hood of Science’. They’ve also filed the case against a website called Library Genesis or LibGen. However, the owners of LibGen are still unknown and unrepresented at the Delhi High Court.

Sci-Hub boasts of being a database of 8.8 crore research articles and books freely available for anyone to read. It says that while previously, “knowledge was only available for high prices that most people cannot pay…Sci-Hub has revolutionised science by making all paid knowledge free”. 

The statistics available on the website claim that India — with more than 26 lakh articles downloaded — ranked third on the list of countries that downloaded the most papers from Sci-Hub in the past month. As against this, the plaintiff journals have a few publications available as open access, while a majority of their articles are available only through the subscription model. 

Rahul Siddharthan, a computational biologist at the Institute of Mathematical Sciences, Chennai, told ThePrint that academic journals in general are “exorbitantly priced” for the general public. “For example, a single article in Cell (an Elsevier journal) costs $39.95 (approximately Rs 3,300) plus taxes for 24 hours of access,” he said. 

He added that subscriptions are “simply beyond the reach” of individuals and institutions, and a vast majority of higher education institutions in India subscribe to, at most, a small handful of academic journals. Meanwhile, the scientists who write these papers are not paid for them and do not receive any royalties, so they are generally “happy to freely disseminate their work”.

“Sci-Hub should, I feel, be viewed as a free library that offers a service for the cause of education to students and researchers who cannot obtain subscriptions to such material,” he said.

Since the suit was filed, several social science researchers affiliated to universities across Delhi have filed an application in the court, arguing that any decision to block the websites would have an adverse impact on them. The Delhi Science Forum, Society for Knowledge Commons and a group of 20 scientists and scholars had also filed applications in the court, highlighting the importance of the websites for research. 

The DU photocopy case

Among others, Sci-Hub is being represented by advocate Nilesh Jain, who is a user of the website. “It was during my master’s at Delhi University in 2016 that I got to know of websites like Sci-Hub and LibGen, and I began using them regularly for my papers and presentations. I really did not have the resources at the time to access all the research papers and books that I needed, so these websites came as a huge respite,” Jain told ThePrint.

He further claimed that while Delhi University at the time had thousands of students, only a few computers — several of them non-functional — were available for them in the central library, where they could access the databases of scientific publishers. 

Having experienced this lack of resources first hand, he was determined to help Elbakyan out the moment he saw her tweet about the suit being filed in the Delhi High Court. Since then, several lawyers, including senior advocate Gopal Sankaranarayanan and intellectual property lawyer Rohan K. George, have hopped on board to help Elbakyan.

In its defence submitted before the Delhi High Court in January 2021, a copy of which ThePrint has accessed, Sci-Hub highlighted the allegedly exploitative business model of the plaintiff journals. It then asserted that the suit filed by the publishers was barred by Section 52(1)(a)(i) of the Copyright Act. This provision is commonly known as the “fair dealing exception”. It allows fair dealing with literary, dramatic, musical or artistic work for private use, including research.  

In addition, social science researchers who’ve approached the court supporting Sci-Hub and LibGen have also relied on Section 52(1)(i)(i) — the education exception — which permits the reproduction of copyrighted work by a teacher or a student in the course of instruction. 

Experts have also since cited the landmark DU photocopy case, in which Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis (T&F) had taken the Rameshwari Photocopy Service to court. This small photocopy shop had a licence from Delhi University to make course packs compiling photocopies of relevant excerpts from their books prescribed in the syllabus, and to distribute these to students. 

The case had caught public attention for its ramifications on the cost and access to education. A single judge bench of the high court had in September 2016 dismissed the suit, ruling that the actions of the photocopier did not amount to infringement of the publishers’ copyright.

Relying on the fair dealing and education exceptions, the judgment was praised as a major victory for access to education, while recognising the socio-economic realities of India. 

In December 2016, a division bench of the Delhi High Court had also interpreted the education exception to provide that as long as any given work is necessary for the purposes of educational instruction, it can be reproduced.

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‘Hydra-headed rogue websites’

Before the high court, the publishers have demanded that these websites be permanently blocked because they are ‘rogue’. This terminology comes from a Delhi High Court judgment that dates back to 10 April 2019. In this judgment, the court barred around 30 torrent sites from showing pirated movies and shows, and had also directed internet service providers (ISPs) to ban these websites.

In that case, the court was approached by film production companies, such as Twentieth Century Fox and UTV Software Communication Ltd., who alleged that these websites allow streaming and downloading of their copyrighted content (movies, television shows etc). Siding with these production companies, the court had said that “digital piracy has hurt the movie industry”. It ruled that certain websites — known as “rogue websites” — can be blocked entirely, instead of blocking a specific URL containing the infringing content. It also laid down nine factors to categorise a website as “rogue”. 

The petitioner journals now want Sci-Hub and LibGen to be categorised as “rogue websites”, and also want a dynamic injunction to be issued against them. 

The remedy of dynamic injunction was devised by the Delhi High Court in the same 2019 judgment, to address the menace of ‘hydra-headed’ websites that create multiple mirror or alternative links to access their content after they are blocked. So, if a dynamic injunction is issued, the publishers won’t have to go back to the judges to have any new domains or mirror websites blocked, and can simply go to the court’s joint registrars to block the new mirrors. Experts, however, have criticised this remedy for being “unclear” and “over-broad” in certain cases, and have demanded mechanisms to ensure that blocking injunctions are legitimate and proportional. 

In December 2020, Sci-Hub had given an undertaking to the court that it would not upload any new papers on its website. On 6 January 2021, the court said that this undertaking would continue till the next hearing. However, no subsequent court order extended this undertaking. On 5 September 2021, Elbakyan announced the publication of more than 23 lakh new articles to celebrate Sci-Hub’s 10th anniversary. 

The same month, the lawyers for the publishers raised the matter in court, claiming that Sci-Hub had breached its undertaking. However, Sci-Hub has maintained that the undertaking had expired as the court didn’t extend it after its January order. 

The case will come up next on 12 July this year, and the court is considering whether an interim injunction should be granted in the matter. 

A Netflix for research?

Swaraj Paul Barooah, the managing editor of SpicyIP, an intellectual property blog, said that regardless of which way the case goes, it has brought to fore an important question that the scientific community and the government need to address.

“This question stems from looking into why sites like Sci-Hub and LibGen came into existence and became popular in the first place. Understanding why there was a void for these sites to fill points us to the more systemic issues that need to be addressed,” he said. 

Barooah added that unless there is a practical way of actually making use of the exception under Section 52 of the Copyright Act, it remains a “mere paper tiger” provision. “With journal articles behind paywalls and the requirement of technical knowledge combined with the threat of legal sanctions for trying to bypass paywalls — how does one realistically avail of a personal use or research exception,” he asked.

He further said that if a researcher actually wants to take advantage of the fair dealing exception and use a copyrighted work for research — which is allowed by law — “there is often no clean way of doing this”, since journal articles remain behind paywalls. Barooah believes there are ways of making this possible. For instance, he pointed out that the Delivery of Public Books and Newspaper Act, 1954, requires two copies of every publication in the country to be deposited with two public libraries in India.

Barooah, however, lamented that this provision, too, “seems like another paper tiger provision with very little enforcement”, adding, “If this were being followed, perhaps there would already be a real, even if partial, way to avail of the legally strong fair dealing exceptions in our law.”

Siddharthan, the computational biologist, said, “I have seen that students, even from modest colleges, learn online via open courseware and also enthusiastically read scientific literature.”

He, therefore, believes that blocking access to scientific literature would be “severely detrimental” for such students. According to him, the solution may lie in encouraging the scientific publishing industry to explore affordable access options for the general public. 

“A parallel is the panic about Napster, BitTorrent etc in the movie and music industries 20 years ago. That problem was solved not via bans, but via affordable legal services like iTunes, Amazon Prime, and Netflix offering the same content,” he explained. 

“People will be willing to pay, within reason,” he added.

(Edited by Richa Mishra)

Also read: Piece of paper holds more value than person in ‘flesh & blood’: HC asks CBSE to correct records


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