For more than 15 years, rightsholders have been obtaining injunctions that require internet service providers to block pirate sites. With no clear roadmap, early blocking applications met one complication after another. Today, most run relatively smoothly.
From a cold, legal perspective, a 2020 blocking application filed by publishers Elsevier, Wiley, and American Chemical Society should’ve been straightforward. Benefiting from the experiences of the High Court in London and the adoption of U.S-penned terms such as ‘rogue site’, Indian judges had readily embraced blocking injunctions as a reasonable response to rampant infringement.
Applications for 10,000+ domains to be blocked within days are now routinely approved by India’s courts. In Sci-Hub’s case, the clock has already been running for more than two years. The reasons for that are both straightforward and complex.
On one hand, unauthorized mass copying and distribution of movies, TV shows, and music is widely recognized as copyright infringement. When scientific papers and academic articles enter the equation, the ground suddenly starts to shift. Underpinned by the widespread belief that publishers exploit academic works, to sustain a monopoly that restricts access to information in favor of profit, all bets are suddenly off.
Even among those who view other types of piracy as immoral, access to education for those unable to afford it is increasingly considered the new moral standard. Perhaps more than anywhere else, people in India are prepared to stand up and fight for an education.
Alexandra Elbakyan: This Case Should Be Dismissed
Unlike most pirate site operators, Sci-Hub founder Alexandra Elbakyan has become an accessible public figure. Supported by millions of students, academics and scientists, when Elbakyan takes on the ‘greedy’ publishers, a win for her is seen as a win for all.
The general consensus is that copyright law favors the publishers, but in a recent motion to dismiss, Elbakyan had other things on her mind too.
As Justice Sanjeev Narula at the High Court of Delhi explains in a recently published order, Elbakyan called for the entire case to be dismissed for failure to state a claim. Based on the assertion that the assignment agreements relied upon by the publishers do not confer ownership of copyrights relating to the allegedly infringed works, Elbakyan declared them void.
“Reliance is placed upon Section 16 and 19 of the Copyright Act, 1957, to argue that agreements relating to copyrights must specify royalty or some other form of consideration, failing which, they cannot affect the assignment of copyright,” Justice Narula writes.
“Section 25 of the Contract Act is relied upon to contend an agreement without consideration is void.”
Mandatory Economic Component Absent
Mr. Gopal Sankaranarayan, Senior Counsel representing Elbakyan, informed the court that the publishers are required by law to “pay royalty and other consideration” to the authors of scientific articles in exchange for the exclusive right of distribution.
Examination of the agreements showed that the authors have not been compensated, Sankaranarayan said. Not only is the mandatory economic component absent from the agreements, they are also irrelevant. The agreements pertain to the publication of books; Elbakyan is accused of distributing articles.
Plaintiffs Own The Copyrights
Before addressing these matters directly, the Judge turns to a statement previously submitted to the Court.
“Ms. Elbakyan [defendant no.1], in her written statement, has categorically admitted that Plaintiffs are owners of copyright in subject works,” the Judge notes. “This admission was attempted to be withdrawn by way of an application [..] which was dismissed by this Court by way of a detailed order dated 3rd November, 2022.”
The November order also contains a statement by the judge: (edited for clarity)
By virtue of agreements between the Plaintiffs and authors of the various literary works published by the Plaintiffs, the Plaintiffs have been assigned and thus are the owners of, inter alia, the exclusive rights to (a) issue copies of the literary works to the public, (b) to reproduce the literary works in any form including the storing of it in any medium by electronic means, and (c) communicate the work to the public. The Plaintiffs are thus the owners of the copyright.
Since the application to withdraw Elbakyan’s admissions failed last November, those admissions will remain on record, Justice Narula says. Having asserted copyright ownership via assignment agreements and presented evidence that Elbakyan infringed their copyrights, the plaintiffs demonstrated a cause of action.
On that basis, the Judge finds no grounds for dismissing the plaintiffs’ blocking application. The next hearing is scheduled for July 2023. In the meantime, Sci-Hub has received some unexpected news.
After suspending Sci-Hub’s .SE domain in January, The Swedish Internet Foundation has now restored it following what appears to have been a successful “ownership verification process.”
The February 9, 2023 and November 2022 orders can be found here (1,2, pdf)
