In fact, researchers at all levels have expressed concern – from undergraduates who may have to write research papers to senior professors whose future research is at stake. The reactions were not surprising: it is now the duty of the Delhi High Court to determine the future of access to scientific literature in India. The first session is scheduled to be held on December 24.
Facts of the case
There are four plaintiffs in this case.
The first is the publishing giant Elsevier, which publishes more than 2,500 journals, incl The scalpel. As is clear from the statements in the lawsuit, ScienceDirect, the private database through which Elsevier generally provides access to the contents of its journals, serves as a gateway to a quarter of the world’s peer-reviewed scientific, technical, and medical research. literature.
The second and third petitioners are Wiley India Pvt. Ltd. and Wiley Patrols Pvt. Ltd., and together they represent publishing giant Wiley. According to the lawsuit, Wiley publishes more than 2 million articles a year in more than 1,700 journals.
The fourth plaintiff is the American Chemical Society, which publishes more than 60 journals. More than 2,000 articles are published annually in its cycle Journal of the American Chemical Society Single.
The first accused in the case is Alexandra Elbakyan, founder of Sci-Hub. The second is Libgen, which provides free access to e-books. Defendants 3 to 11 are from various Internet Service Providers (ISPs) in India. The 12th defendant is the Department of Telecommunications (DoT) and the 13th defendant is the Ministry of Electronics and Information Technology (MeitY).
In short, the publishing giants are demanding a complete ban on Sci-Hub and Libgen in India through a so-called dynamic order. The publishers claim that they own exclusive rights to the manuscripts they have published, and that Sci-Hub and Libgen are involved in violating various exclusive rights granted to them under copyright law by providing free access to their copyrighted content.
The publishers also allege that Sci-Hub and Libgen have created — and continue to create — numerous domains on the Web so they can provide access to articles or book chapters published by the plaintiffs, even if some of their domains have been blocked by court orders in other countries.
They also added ISPs as defendants because the details of those who maintain Sci-Hub and Libgen are not fully accessible, except for Elbakyan’s details, and to ensure that the contents of the domains are blocked. DoT and MeitY have become parties to the lawsuit to ensure that they notify ISPs and telecommunications providers of the blocking of access.
Relying on an earlier judgment of the Delhi High Court, viz UTV Software Communication Ltd. v. 1337X.to et al, which dealt with websites providing access to copyrighted films, the publishers are asking the court to issue a dynamic injunction. That is, once a defendant’s website is classified as a “rogue website,” the plaintiff will not have to go back to the judges to block any new domains for sharing the same material, and can simply obtain an extension of the injunction by requesting an injunction to the court clerk.
Read also: Elsevier forces ISP to block access to Sci-Hub, ISP also blocks Elsevier
the problem
Now, if the Delhi High Court issues a dynamic injunction against Sci-Hub and Libgen, the vast majority of researchers in India may not be able to access peer-reviewed articles and book chapters vital to their research and teaching, via these two platforms. The progress of science depends on access to existing literature; Denying this access can also lead to serious social, economic and health tragedies.
For example, without access to the latest literature, how will healthcare professionals learn about the latest developments in any medical field? And thanks to the way publishing giants control access to peer-reviewed scientific literature today, most of it languishes behind a paywall that costs hundreds of thousands of rupees to unlock. Price for 24-hour access to one article (“Oral rimegepant for the prophylaxis of migraine: a phase 2/3, randomized, double-blind, placebo-controlled trial”) published in the latest issue of the journal The scalpelis $31.50 – approximately 2,330 rupees – approximately one hundred rupees per hour!
How many clinicians and researchers across multiple public healthcare facilities and universities in India will have access to all relevant literature in this pricing model? Publishers may argue that their primary consumers are institutions, not individuals, but it is worth noting that even institutional subscriptions are not without strict limits on off-campus access.
The COVID-19 pandemic has also highlighted how there can be situations where researchers will not be able to visit their campuses to access materials. Therefore, even if a researcher’s institution has an institutional subscription to a particular journal, the researcher may not feasibly be able to access the material using that subscription.
Sci-Hub and Libgen are trying to address the problems of unequal access with a revolutionary approach: by freeing up access to millions of manuscripts unjustifiably controlled by giant publishing companies. While we may or may not agree with their approach, we cannot ignore the practical demands of research and the persistent inequalities of access that researchers from the Global South constantly have to contend with. When the court has to deal with the question of issuing an injunction, it should not ignore the context in which Sci-Hub and Libgen emerged as countermovements against the ownership of scholarly communication.
Second, when a court decides on an application for an injunction, it must follow some basic principles. In a landmark case before the US Supreme Court – eBay Inc. v. MercExchange, LLC The court reiterated the necessity of using the traditional four-factor test applied by courts. To obtain a permanent injunction, the plaintiff must prove the following:
1. The plaintiff suffered irreparable injury;
2. The remedies available at law are insufficient to compensate for that injury;
3. that given the balance of hardship between plaintiff and defendant, an equitable remedy is justified; And
4. The public interest will not be compromised by a permanent injunction.
If we apply these factors to the present context, it would appear that a permanent injunction should not be granted, because to do so would be detrimental to the public interest.
Third, we must critically reconsider the UTV decision, which the plaintiffs relied on in their claim for a dynamic injunction. Dynamic injunctions provide an overly broad remedy to intellectual property owners without adequate judicial scrutiny, and can have severe negative impacts on various fundamental rights, including freedom of expression. Any injunction must be limited to the specific links plaintiffs provide in their petitions, and under no circumstances must extend to an entire website or new domains without appropriate judicial scrutiny.
In the UTV decision, the power to issue a website blocking order “upon confirmation that the impugned website is indeed an identical/redirecting/alphanumeric website to the blocked rogue website(s) and only provides new means of accessing the same underlying infringing website” It was awarded to the Deputy Registrar of the High Court. Such an approach removes the highly desirable critical judicial examination of an important matter such as blocking of websites/web pages.
Finally, if one looks at the complaint, it should be clear that the publishers only provide an illustrative list of copyrighted materials shared via Sci-Hub and Libgen. Also note that not all material currently available on Sci-Hub or Libgen may infringe copyright. In some of these works, copyright may have expired; In other cases, the publisher may be incorrectly asserting copyright. Therefore, until a court decides through a proper trial whether all Sci-Hub content infringes copyright, we cannot jump to any conclusions.
So we need a proper trial to determine whether the plaintiffs’ claims extend to all of the material they made available, and to analyze whether the defendants are able to claim the benefit of any of the limitations and exceptions provided under copyright law.
Read also: It’s 2019. Academic papers should be free.
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Many copyright scholars around the world still cite the single court and Delhi High Court bench rulings in the Delhi University photocopy shop case as judgments that considered the practicalities of education in India and provided a balanced solution that did not unduly impact the incentives of authors .
In this regard, a dynamic injunction against Sci-Hub and Libgen could do long-term harm to science in India and distort the delicate balance within the copyright system. The Court in India should not allow itself to become an instrument for perpetuating unequal access to scientific literature in the developing world. Let the current copyright infringement dispute be resolved through a fair trial that addresses the issues in a more comprehensive manner.
Arul George Scaria is Associate Professor of Law and Co-Director of the Center for Innovation, Intellectual Property and Competition (CIIPC), National Law University, Delhi. He is also an affiliate faculty member of the CopyrightX Program at Harvard Law School. His main areas of interest and specialization are science and technology policy, open movements, intellectual property law, and competition law.
