Anubha Sinha, Centre for Internet and Society – India
This blog post is an update on the copyright infringement suit filed against Sci-Hub and LibGen in the Delhi High Court by Elsevier Ltd, Wiley India, and American Chemical Society.
In the first hearing in December, while the court ordered Sci-Hub to stop making new unauthorised uploads of the publishers’ content, it allowed the existing links to stay on, noting it was not urgent to remove content relating to decade-long infringing activity. LibGen did not appear before the court.
Indian science and academia realise that their right to research is at stake. In January, several Indian scientists and advocacy organisations applied to intervene in the case, to persuade the court to not issue an interim or permanent injunction for dynamic blocking of the websites.
One of the written submissions (filed by twenty scientists and a public health advocacy organisation) states that the two websites are the only access to educational and research materials for a big community of Indian researchers, scientists, teachers and students. And these have become indispensable during the pandemic.
This submission also highlights the position of leading science academies in the country – who in 2019 had advocated for making public-funded research openly accessible, as well as recognition of the affordability and availability problem in India’s current draft science, innovation, and technology policy. It shares analyses of the monopolistic barriers in academic publishing and extractive pricing, and their crippling impact in the Indian context.
They further argue that since the use of the websites is for research, which expressly falls within the ambit of statutory fair dealing, the charge of copyright infringement is not sustained. Nor have the publishers shown that Sci-Hub or LibGen users exploit the material for commercial gains. Additional legal support has been drawn from the DU photocopying judgment, Article 8(1) of the TRIPS Agreement, and jurisprudence around website-blocking in India.
In the hearing that followed, the judge noted that the issues in the case were ‘a matter of public importance’; hence, the court would hear all interested parties before issuing any new orders. LibGen still remained unrepresented, with the court noting that it had not been served properly yet.
At the time of writing this, Sci-Hub had filed its written statement (not publicly accessible yet). Alexandra Elbakyan has separately shared some thoughts on the case in an interview here.
Given the gamut of contentions, the case judgment will have implications for Indian copyright aspects such as: meaning of the statutory exemption for research and scope of fair dealing, and bar on circumventing technological protection measures – all while having to toe the WIPO Internet treaties, Berne Convention, and the TRIPS Agreement. Hopefully, these will be grounded in reflections on exploitative state of academic publishing system, duties of academic publishers, and distinction between piracy and sharing online.
The judgment will add to the state of our learning and research needs, and how copyright policy can support that, as this is the first time Sci-Hub and LibGen have been taken to court in a developing country.
Note: For an in-depth analysis of the social dimensions of the matter, please read this document prepared by Like-Minded IP Teachers’ Working Group on Intellectual Property and Public Interest.
