Eleven months ago, academic publishers Elsevier, Wiley, and American Chemical Society filed a lawsuit in India demanding that local ISPs should block subscriber access to Sci-Hub and Libgen.
In common with similar injunction applications in other regions, the companies accused Sci-Hub and founder Alexandra Elbakyan of engaging in massive infringement due to the making available of copyrighted content without their permission.
Since tackling the platforms directly has proven fruitless, ISP blocking is the only real option to protect their rights, they argued.
Early January 2021, scientists, academics, teachers and students came out in opposition to the blocking application. As a result, Justice JR Midha at the Delhi High Court said that dissenting voices would be heard before a final decision is made, adding that the case and its implications were a matter of “public importance“.
Group of Academics Join The Legal Battle
Assisted and represented by the Delhi-based Internet Freedom Foundation (IFF), a group of social science researchers affiliated with universities across Delhi has now filed an intervention application that aims to educate the High Court on the negative implications of ordering local ISPs to block the platforms.
“In the application, they have demonstrated the importance of the LibGen and Sci-Hub in enabling them to continue with research and discharge professional obligations,” IFF explains.
“They have submitted that they cannot access countless essays/books/articles because of the exorbitant rates the publishers charge for them and that these publishers own more than 50% of the total output in social science research. The only way in which they can access these resources is by relying upon LibGen and Sci-Hub. Moreover, LibGen and Sci-Hub offer access to up-to-date research which is unavailable elsewhere.”
Intervention Application
The seven social science researchers behind the application are Tejaswi Chhatwal, Jagannath Kumar Yadav, Madhurima Kundu, Chitrangada Sharma, Piyush Chhabra, Rini Dasgupta and Srishti Walia. All study human society and human behavior and as such their work contributes to policymaking and the development of India.
Unfortunately, their research isn’t always straightforward. Despite being affiliated with prestigious universities which provide access to scholarly resources, they remain without access to countless essays, books and articles that are behind the paywalled gateways of the publishers.
Sci-Hub and Libgen, on the other hand, make access so much easier by providing the publishers’ articles (as well as non-protected content) in an easy-to-consume format.
“The Applicants’ reliance on [Sci-Hub and Libgen] has incomparably increased during the pandemic where, on account of the indefinite closure of university premises, they lost access to library resources and, in many cases, also to the institutional access to research databases,” the intervention application reads.
“The Applicants submit that they were only able to continue their research due to the existence of Defendant Websites, since [the publishers] have exorbitantly priced access to works for which they hold copyright licenses such that it is practically impossible for individuals to make use of the same.”
The researchers describe Libgen as one of the “primary sources” for the development of social sciences in India and say that if the Court rules that it should be blocked, researchers will not be able to continue with their work. That means an end to meaningful engagement with scientists from other countries and the ability to contribute to policy building.
In short, limited access to knowledge and the ability to share it with others will be severely compromised.
“[L]ib-Gen, being a free digital library, has democratized access to knowledge resources not only by eliminating paywalls but also providing access from any physical location as long as the person has access to the internet,” they add.
Use of Sci-Hub and Libgen Doesn’t Hurt Publishers’ Profits
The social science researchers also draw attention to the publishers’ “prohibitive pricing” models that place a serious burden on the publicly-funded academic institutions where they conduct their research. They further note that, to the best of their knowledge, individual users who rely on Sci-Hub and Libgen have not dented the profits of the publishers.
“The profit margins of the [publishers] are much higher than those of enterprises in other industries such as oil, medicines and technology. Thus, the Plaintiffs’ plea of blocking [Sci-Hub and Libgen] only serves their self-interest of increasing their coffers without benefitting society,” their application reads.
“In fact, granting the Plaintiffs’ reliefs will have a detrimental impact on the social science research undertaken in India and the careers of the Applicants and those they represent before this Hon’ble Court. The unavailability of the Defendant Websites will also stunt the academic growth of the nation.”
Blocking Would be Against The Law
After highlighting the risks to society should the Court authorize blocking, the researchers turn to the legality of doing so. They believe that while the publishers own the copyrights to the articles, the use of those articles is allowed under India’s Copyright Act, at least under certain conditions.
“The [researchers’] use of and [Sci-Hub and Libgen’s] making available the material owned by the Plaintiffs is permissible under inter alia Section 52(1)(a)(i) of the Copyright Act,” they write.
“According to this provision, ‘fair dealing with any work’ shall not constitute an infringement of copyright if it is for ‘private or personal use, including research’. Providing access to material by the Defendant Websites constitutes ‘fair dealing’ since it complies with the conditions recognized by this Hon’ble Court in Division Bench in India TV Independent News Service Pvt. Ltd. and Ors. v. Yashraj Films Pvt. Ltd.”
Finally, the researchers say they are contesting any blocking injunction on the basis that it would be overbroad. They note that the publishers are not seeking the removal of specific infringing content but the blocking of entire websites in perpetuity. They argue that there are less restrictive measures available and these should have been sought first, rather than going directly for complete blocking of Sci-Hub and Libgen.
Before issuing any blocking order, they also ask the court to consider Article 19(1) that recognizes the fundamental right to access information. According to IFF, the publishers are required to file their reply to the intervention application within four weeks.
The full application can be found here (via IFF)
