Why Indian researchers oppose efforts to have a pirate website banned

Sci-Hub claims to “remove all barriers in the way of science”. In its “about us” section, the website proudly announces that it is “the first pirate website in the world to provide mass and public access to tens of millions of research papers”.

In other words, the “shadow library website” – as Wikipedia describes it – provides unrestricted access to research papers and journals that are otherwise behind paywalls.

Academics across the world swear by it. Many, particularly those in the global South and without institutional affiliations, say it would be near-impossible to do what they do if not for the website. This is because of the prohibitive costs of legally accessing most cutting-edge research published in reputed journals. For context: an annual online subscription to a top-notch medical journal costs upward of Rs 15,000 in India.

No wonder then that Sci-Hub often finds a mention in the acknowledgment section of PhD dissertations.

A lawsuit

But in this arrangement of convenience, there is an aggrieved third party: big publishers who insist that what Sci-Hub does amounts to copyright infringement. In the past, publishers have successfully moved court in various parts of the world to win injunctions against Sci-Hub. Several of the website’s domains have stopped working as a result.

On Monday, some of the world’s biggest academic publishers came together together to get the website banned in India. Elsevier, Wiley (and its Indian arm) and the American Chemical Society – publishers of some of the most influential academic journals – moved the Delhi High Court seeking a ban on Sci-Hub and Libgen, a repository of free e-books. Sci-Hub and Libgen have often worked in tandem to help each other stay afloat.

The first hearing is due to take place on Thursday.

These websites “completely disregard copyright laws”, the publishers have contended in their petition. In addition, they have alleged that Sci-Hub and Libgen’s motivations were not to facilitate “research, study, instruction or education” but to “freeload on the hard work, skill and labour” of the publishers and their authors.

A ‘dynamic injunction’

The petitioners have asked the court for a “dynamic injunction” – they want these websites to be declared “rogue websites”. Once a website is categorised as rogue, any new domain that provides access to the same content as the original website can be banned without a separate court order. All the petitioners need to do is approach the court’s deputy registrar with a request for extending the injunction.

The petitioners insist a dynamic injunction is necessary because websites like Sci-Hub keep creating mirror domains to circumvent court orders against a particular domain.

Indian researchers across fields are already worried.

Manabendra Saharia, an assistant professor at the Indian Institute of Technology in Delhi, said that banning Sci-Hub/Libgen would be akin to “a punitive measure against Indian researchers who already are suffering from various other issues”.

All researchers Scroll.in spoke to echoed a similar sentiment. “They are instrumental to research,” said Anirban Datta-Ray, a conservation biologist based in Bangalore. “If not for Sci-Hub and Libgen, we would have been referring to the same old papers but now we have access to cutting edge-research. That improves the overall quality of work.”

The sites were particularly crucial, Datta-Ray said, for students and researchers who were not affiliated to elite institutions in bigger cities that may have the resources to procure institutional subscriptions.

Richard Kamei, a doctoral candidate at the Tata Institute of Social Sciences in Mumbai, concurred. “It provides budding scholars and researchers, especially from marginalised sections, access to knowledge in an academic world where the existing knowledge distribution and dissemination remains out of reach largely,” said Kamei.

‘Copyright infringement’

While Sci-Hub and Libgen’s importance and public service in the Indian context may be undisputed, what about the publishers’ claim of copyright infringement?

In a landmark judgement – popularly known as the Delhi University photocopying case – the Delhi High Court in 2016 had ruled that compilation and distribution of copies of texts of books prescribed in the syllabus did not infringe on copyrights of the publisher as defined in the Copyright Act of 1957. Any number of photocopies could be made and distributed, the court ruled, as long as it was meant for “purpose of educational instruction”.

Three publishing giants – Oxford University Press, the Cambridge University Press and the Taylor and Francis Group – had at the time banded together to sue Delhi University and a photocopying shop operating under its license. But two associations of scholars and students from the university had impeaded themselves to be made party to the case.

Of legal matters

Swathi Sukumar, who has represented the defendants in the case, said while there were similarities in two cases, there were significant differences too. Sukumar pointed out that Sci-Hub had a more absolutist position on copyrights – the website, self admittedly, sought to make copies of copyrighted texts available to anyone who wanted it.

“Sci-Hub’s position of free access to all will not fit into the exemption that the Copyright Act provides for educational purposes,” said Sukumar. “But the grant of this dynamic injunction is bound to affect people who have the legitimate rights to avail of this exemption. So in my opinion, it is for this group of people to come and stand behind Sci-Hub and make their case.”

Yet other intellectual property scholars said the court ought to take a broader view of the matter, considering the “catastrophic effect” a ban on Sci-Hub and Libgen is likely to have on researchers. “The kind of intellectual monopoly that Elsevier, Wiley, and ACS seek is harmful for the public, and judges should refuse to grant an ex-parte preliminary injunction in such a case,” said Pranesh Prakash, a law and policy researcher.

Prakash pointed out that even the Copyright Act allowed for an “infringing copy” of copyrighted work to be legally imported into India for personal and domestic use. “That provision of the Act should not be negated by courts,” said Prakash.

‘Weakening of copyright’

For their part, Indian publishers, perhaps predictably, are siding with the petitioners. Manas Saikia, an industry veteran and former managing director at Cambridge University Press, said copyright laws existed for a reason. “A publisher’s business is founded on the basis of the copyright law,” he said. “If there is no copyright protection, then why would a publisher stay in this business?”

Saikia argued that just as copyright laws applied to journalism, they did to the publishing industry. “You cannot say that copyright exists in a newspaper or work of fiction but does not exist in an academic book or even a textbook,” said Saikia.

The “weakening of copyright” brought about by the Delhi University photocopying case, Saikia said, had already relegated academic publishing in India to a “sunset industry” with very little original production. “Tertiary textbook publishing has been reduced to some firms plagiarising or lifting entire chapters from International publications,” Saikia said.

Too steep even for the richest

Instead of questioning publishers, Saikia said researchers should train their guns on research institutions they were affiliated to. “As regards the question of ‘prohibitively’ expensive books and journals are concerned, no student anywhere buys them,” Saikia said. “Libraries do and the student accesses them from the library. If the student does not have access to a required product in a library, then blame the library and the institution it is attached to.”

But, there have been several instances of some of the world’s best-funded universities also finding the subscription costs of academic journals too steep to afford. Some universities have even terminated their contracts with Elsevier over their prohibitive pricing that universities say go beyond their principles of equitable access to tax-funded research.

Money for what?

Besides, researchers contend that publishing houses add little value to justify such high rates. “Research worldwide is mostly funded by taxpayer money, done by students on scholarships, supervised by professors and scientists, reviewed by the same community voluntarily for free,” said Saharia of the Indian Institute of Technology. “Academic publishers have minimal role in the process, except to host a PDF as increasingly many journals are online-only.”

Saharia added that contrary to popular perception researchers do not get paid “a single cent for publishing or reviewing papers for any publisher regardless how much publishers make” (they seem to make a fair bit; Elsevier clocked a profit of 982 million pounds in 2019).

Sahara said that researchers were banking on the Delhi High Court to” take an enlightened view on this issue similar to their judgement on the DU Photocopy case”. “The needs of the many should outweigh the needs of the CEOs of academic publishers,” he said.