[This post has been authored by Anushka Singh, a student at the West Bengal National University of Juridical Sciences.]
Introduction
With the rising ubiquity of electronic copies produced by various actors, books are no longer a scarce resource. One such actor that is around a decade old and provides low-cost access to knowledge is the concept of shadow libraries. These libraries host pirated collections of copyrighted books and other academic material, curated digitally to provide free access to people around the globe.[i] They were created as a response to economic, political, and institutional conditions that limited access to knowledge and education within the institutional periphery of academia.[ii] One such platform, Sci-hub, is becoming the largest open-access academic resource in the world with its collection of 84 million research papers that represent at least two-thirds of all the published research.[iii] The website, along with Libgen which is another shadow library, has emerged as a juggernaut with over 28 million downloads over a period of six months.
This rapid proliferation of book piracy might seem similar to what the music or the movie industry suffered a decade ago. However, it is different in a way that the publishing industry cannot decide its own fate like the music rights holders did. The actions that the publishers pursue will not only impact the publishing industry or the piracy market but will also affect the ever-expanding community of academics around the world who depend on these websites for unrestricted access to research papers and journals that are otherwise behind paywalls.
Thus, it becomes crucial to analyse the situation from a legal, as well as a social perspective. In this article, the author has delved into the feasibility of shadow libraries in the Indian academic sphere by critically analysing their functioning in relation to copyright laws. The impacts that any kind of judicial pronouncement may have on the future of academic research in the country have also been examined. The author goes on to conclude the article with a way forward that could ensure the wellbeing of both the publishing industry as well as the academic community.
Disentangling the Debate
Over the past few years, Sci-hub and the likes have become an eyesore for the publishing industry all over the world. Publishing houses around the globe have used the path of the law relating to copyright infringement to fight these websites. In a copyright infringement suit against Libgen, the United States Federal court fined the website $15 million for infringing exclusive rights to 100 articles. The Virginia District Court, in another case, passed an injunction to block the domain name in the USA. The domain names of these websites were also temporarily blocked in Russia and some parts of Europe. Even online platforms like Facebook have taken steps to filter links to these websites.[iv] In light of these developments, it is interesting to analyse this dispute that has triggered a debate in academic and legal circles on what constitutes copyright infringement.
In a recent development in Indian intellectual property jurisprudence, the top-tier academic publishing houses, Elsevier Ltd., Wiley India Pvt. Ltd. & Wiley Periodicals LLC, and American Chemical Society, sued Sci-hub and Libgen for substantially indulging in online piracy by uploading their copyrighted content without any authorisation.[v] The publishers claim to hold exclusive rights to all the publications on their platform. Thus, it is claimed that the defendants, by providing open access to the plaintiffs’ copyrighted work, have infringed their exclusive rights under §14(a)(i), (ii), and (iii) of the Copyright Act (the ‘Act’).[vi] The Section contains provisions on the production of a work, the publication of its copies, and their distribution to the public. The plaintiffs have also invoked liability under §65A and §65B of the Act that concerns the circumvention of preventive technological measures deployed by the copyright holder. Additionally, the plaintiffs have prayed for a ‘dynamic injunction’ on the defendants’ websites.
The only way the defendants can come out of this imbroglio is if their conduct qualifies under §52 of the Act that provides for a wide list of exemptions for the use of copyrighted material.
The Court has acknowledged the widespread impact of the defendants’ websites and described the matter as that of ‘public importance’. However, India being a signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Court will have to follow certain minimum standards for the protection of intellectual property. The matter is now pending before the Delhi High Court, and the primary issues before the Court will be the feasibility of an injunction and the applicability of §52 of the Act.
Importance of Open Access Research
Before we address the legality of shadow libraries, let us discuss certain considerations distinct from those solely in law, which the judiciary must keep in mind before finally deciding on the matter. The emergence of these websites and their increasing popularity is attributed to the increasing demand for research papers in the developing world, which publishing houses are either unable or unwilling to serve.[vii] The cutting-edge research and mechanisms provided by the publishers are plagued by barriers like steep prices to access these materials.
To revolt against the monopoly of publishers, major academic institutions in Germany have recently boycotted Elsevier in order to negotiate fairer terms of access. In recent years, multiple institutional consortia and academic organisations including Ivy Leagues have cancelled their subscriptions to negotiate for a more sustainable deal.[viii] Moreover, the material is not always differently priced on the basis of a country’s income level. A recent study based on the price and availability of titles available in the libraries of two leading Indian Law schools concluded that the prices of these titles were either equal to or higher than the prices of these titles in the USA and UK (both high-income countries).[ix]
As a result, these pirated websites act as panache for the already suffering academic community. Detailed data on Sci-hub’s usage show that the website was most used by the lower-income countries, with Tehran being the city with the most usage. According to another study conducted by Alexa Internet analytics, India was among the top five sources of traffic to Sci-hub. These websites have been termed as instrumental to research for providing cutting-edge research and improving the quality of work.
Addressing the Legal Question
Coming back to the question of legality, §52(1)(i) of the Act provides exceptions to copyright for the reproduction of work for educational purposes. In the DU Photocopy case, the Delhi High Court permitted the reproduction of a work given that it was used for educational purposes and instructions.[x] The bench also permitted the use of any ‘intermediary or agency’ for reproduction. However, there must be an ‘element of fairness’ which the Court must determine based on the ‘extent of such reproduction’ on a case-to-case basis. Following this rationale, the defendant could argue for an exception under 52(1)(i) as an ‘intermediary’ to reproduce work necessary for the purpose of education. However, this would be a difficult defence because the website provides access to everyone, without any bar of necessity.
Nevertheless, in the DU Photocopy case, despite the restrictive nature of the ‘fair dealing’ approach, the Court adopted a more flexible approach in interpreting the term ‘course of instruction’ as an activity not just limited to the classroom. Thus, it is suggested that the Court must give ‘fairness’ the widest possible meaning in the present case. The Court must acknowledge its judgment in Wiley Eastern Ltd. v. Indian Institute of Management where it deemed the protection of freedom of expression as the basic purpose of §52, to protect research, private study and reporting of current events, etc.
Another allied issue is the plaintiffs’ prayer to seek a ‘dynamic injunction’ against the defendants’ website. In the case of UTV Software Communication v. 1337X.TO (‘UTV’), the Delhi High Court, while considering a case concerning digital piracy in the movie industry, noted that blocking a website in its entirety can be significant and must be used with caution. The Court noted that this remedy must only be used against ‘rogue’ websites. It also provided a non-exhaustive list to categorize a website as a rogue.
Even though some of the factors like non-traceability of the website, updating mirror links, blocking access by other jurisdictions, prima facie, act against the defendants’ case, the Court must critically examine other factors based on merits. It must also be noted that most of the material provided on the website is not hit by copyright laws, either due to the expiry of the copyright, or the rights being vested in the author of the text rather than the publisher. Moreover, the Delhi High Court in the UTV case itself noted that for a website to be categorized as ‘rogue’, it must establish that the platform in question is ‘overwhelmingly infringing’. A copyright infringement of merely a hundred or so articles must not be sufficient to qualify as an infringement when the entire sample size of the material available is in millions.
Additionally, on the issue of interim injunction, the Court must examine certain pre-requisite factors laid down by the Apex Court in Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai. The plaintiff must prove a prima facie case, the balance of convenience and irreparable harm. In the instant case, even if the Court holds that there is a prima facie case, the Court must critically assess the other two factors. The blanket ban on the website will completely eliminate easy access to research in light of barriers like paywalls and steep subscription rates. Thus, the balance of convenience weighs against the plaintiff. Additionally, even after the presence of the defendants’ websites for over a decade and the availability of all the copyrighted material for free, there has hardly been an impact on the plaintiffs’ revenue. Instead, the statistics show that there has been a constant 2 per cent growth rate in the revenues of Elsevier. Thus, if the Court decides against the interim injunction, there would be no irreparable damage to the plaintiff.
If the Court nevertheless grants an interim injunction by following the publishing industry’s notion of copyright law, the order would have a negligible impact on copyright breach. The academics in need could still access the websites with the help of a VPN. Thus, the Court must strike a balance between the obligation to uphold minimum standards to protect intellectual property and the universal right to access to education and knowledge.
Conclusion – A Way Forward
This judgment will have a monumental impact in shaping the Indian research and academic sphere. Shadow libraries like Sci-hub and Libgen are not the ultimate solutions to the problem of access to research and it is very unlikely that any of these pirates would circumvent the copyright laws in various jurisdictions for much longer. However, copyright laws around the world play a vital role in providing access to research. Hence, the issue at hand is a much larger issue than the one that can be solved by mere injunctions
The emergence of these websites calls for the publishing industry to come out of its exclusive sphere and revamp its working structure. The path of easy to access research through digital publication, as shown by these websites must also be explored by the publishers. Moreover, legislation must be passed for making public-funded research free and accessible, like in the USA, where public-funded research is released in the public domain within a year of publication.[xi] The research funding organisations must thrive on overcoming the barriers set by the steep prices of publications by creating open access to research funded by them. Moreover, authors must publish their pre-publication drafts online to make them available for research.
Thus, there is a long way to go before we can take a step to completely ban shadow libraries that could prove catastrophic for the academic sphere.
[i] Joe Karaganis, Shadow Libraries: Access to Knowledge in Global Higher Education 1 (2018).
[ii] Blazs Bodo, Pirates in the Library: An Inquiry into the Guerilla Open Access Movement (Glasgow University International Society for the History and Theory of Intellectual Property, paper) available at https://doi.org/10.2139/ssrn.2816925
[iii] The Verge, Science’s Pirate Queen, February 8, 2018, available at https://www.theverge.com/2018/2/8/16985666/alexandra-elbakyan-sci-hub-open-access-science-papers-lawsuit
[iv] Blazs Bodo et. Al., Open Access Is Not A Panacea, Even If It’s Radical – An Empirical Study on The Role of Shadow Libraries in Closing the Inequality of Knowledge Access (Amsterdam Law School Legal Studies, Research Paper No. 2020-39), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3628326&download=yes
[v] Live law, Sci-Hub Undertakes Before Delhi HC To Not Upload Till Jan 6 New Articles In Which Elsevier, Wiley India & ACS Claim Copyright, December 22, 2020, available at https://ezproxy.nujs.ac.in:2123/news-updates/delhi-high-court-sci-hub-lib-gen-copyright-infringement-167671.
[vi] The Copyright Act, 1957, §14.
[vii] Gabriel J. Gardner, Shadow Libraries and You: Sci-Hub and the Future of ILL, ACRL Baltimore, ¶569 (2017).
[viii] The Scientist, Universities in Germany and Sweden Lose Access to Elsevier Journals, July 19, 2018, available at https://www.the-scientist.com/news-opinion/universities-in-germany-and-sweden-lose-access-to-elsevier-journals–64522; Max Planck Digital Library, Max Planck Society discontinues agreement with Elsevier; stands firm with Projekt DEAL negotiations, 2018, available at https://www.mpdl.mpg.de/en/505; MIT News, MIT, guided by open access principles, ends Elsevier negotiations, June 11, 2020, available at http://news.mit.edu/2020/guided-by-open-access-principles-mit-ends-elsevier-negotiations0611; The Print, Rising Cost of Science Journal worries Top Scientists, October 25, 2012, available at https://www.livemint.com/Politics/trpj70vM3TaZW8j64orqMJ/Rising-cost-of-science-journals-worries-top-science-official.html.
[ix] Shamnad Basheer et al, Exhausting Copyrights and Promoting Access to Education: An Empirical Take, 17 Journal of Intellectual Property Rights (2012).
[x] The Chancellors, Masters and Scholars of University of Oxford and Ors. v. Rameshwari Photocopy Services and Ors. (2016) 160 DRJ (SN) 678.
[xi] Nature, White House Announces new US open access policy, February 22, 2013, available at http://blogs.nature.com/news/2013/02/us-white-house-announces-open-access-policy.html.