Several lawsuits have not elicited strong, even panicked, reactions from India’s natural science researchers – but the copyright infringement lawsuit brought by three publishing giants against Sci-Hub and Libgen before the Delhi High Court on December 21, 2020, has managed to do So. That’s just. The three are Elsevier, Wiley, and the American Chemical Society. Reactions to the “development” ranged from questioning whether Sci-Hub would be banned in India to whether it would be advisable for researchers to step into this litigation, to sharing their views.

Indeed, researchers at all levels have expressed concern — from undergraduates who may have to write term papers to senior professors whose future research is at risk. The reactions are not surprising: The Supreme Court in Delhi now has a duty to determine the future of access to scientific literature in India. The first hearing is scheduled for December 24.

Case facts

There are four plaintiffs in this case.

The first is publishing giant Elsevier, which publishes more than 2,500 magazines, including scalpel. As evidenced by the data in the lawsuit, ScienceDirect, the proprietary database through which Elsevier provides access to the contents of their journals, serves as an outcome portal for a quarter of the world’s peer-reviewed experts and scientific, technical and medical texts. literatures.

The second and third petitioners are Wiley India Pvt. Ltd & Wiley PACS Pvt. Ltd., and together they represent publishing giant Wiley. According to the lawsuit, Wiley publishes more than two lakh articles each year in more than 1,700 magazines.

The fourth claimant is the American Chemical Society, which publishes more than 60 journals. More than 2,000 articles are published annually in Journal of the American Chemical Society lonliness.

The first defendant in the case is Alexandra Albakyan, founder of Sci-Hub. The second is Libgen, which provides free access to e-books. Defendants 3 to 11 are Internet Service Providers (ISPs) in India. Defendant No. 12 is the Department of Communications (DoT) and No. 13 is the Ministry of Electronics and Information Technology (MeitY).

In short, the publishing giants are demanding that Sci-Hub and Libgen be completely blocked in India through the so-called dynamic order. Publishers claim that they own exclusive rights to the manuscripts they have published, and that Sci-Hub and Libgen have been implicated in violating many of the exclusive rights granted to them under copyright law by providing free access to their copyrighted content.

Alexandra Bian. Photo: Sci-Hub

The publishers also assert that Sci-Hub and Libgen have created – and continue to create – many domains on the web so that they can provide access to articles or book chapters published by plaintiffs, even if some of their domains are banned 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, and to ensure that the contents of the domains are blocked. DoT and MeitY have been made parties to the lawsuit to ensure that ISPs and telecom service providers are notified of the blocking of access.

Relying on a previous ruling of the Delhi High Court, i.e. UTV Software Communication Ltd v. 1337X.to and others, which has dealt with websites providing access to copyrighted movies, publishers are asking the court to issue a dynamic injunction. This means that once the 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 sharing the same material, and can simply extend the injunction with a request to the deputy court registrar.

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 education, via these two platforms. The progress of science depends on access to the existing literature; Denial of access can lead to serious social, economic and public health tragedies.

For example, without access to the latest literature, how will healthcare professionals learn about the latest developments in any medical field? Thanks to the way publishing giants control access to today’s peer-reviewed scientific literature, most of it lurks behind paywalls that require hundreds of rupees to unlock. Price to access one 24-hour article (‘Oral rimegepant for migraine prophylaxis: Phase 2/3, randomized, double-blind, placebo-controlled trial’) published in the latest issue of scalpelIt’s $31.50 – roughly 2,330 rupees – roughly a hundred rupees an hour!

The cost of getting a paper at The Lancet for 24 hours. Photo: Arul George Scaria

How many doctors and researchers in various 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 noted that even institutional subscriptions are not without severe restrictions on off-campus access.

The COVID-19 pandemic has also illustrated how there can be situations where researchers are unable to visit campus to access materials. Therefore, even if a researcher’s organization has an institutional subscription to a particular journal, the researcher may not be able in practice to access the material with that subscription.

Sci-Hub and Libgen are attempting to tackle the problems of access inequality with a revolutionary approach: by freeing access to millions of manuscripts unjustifiably controlled by publishing giants. While one 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 have to constantly contend with. And when the court has to deal with the issue of an injunction, it should not ignore the context in which both Sci-Hub and Libgen have emerged as opposite movements against the ownership of scientific communications.

Second, when the court decides on an injunction request, it needs to follow some basic principles. In a landmark case before the US Supreme Court – eBay Inc. v. MercExchange, LLC The Court reiterated the need to use the traditional four-factor test applied by the courts. To obtain a permanent injunction, the plaintiff must prove that:

1. the plaintiff suffered an irreparable injury;

2. The remedies available at law are insufficient to compensate for such damage;

3. that given the balance of difficulties between the plaintiff and the defendant, the remedy in fairness is justified; And the

4. The public interest will not be prejudiced by a permanent injunction.

If we apply these factors to the present context, it appears that no permanent injunction should be issued, since to do so would prejudice the public interest.

Third: We must critically reconsider the UTV program’s decision, which the plaintiffs relied on in their demand for a dynamic injunction. Dynamic injunctions provide too broad a remedy for intellectual property holders without adequate judicial scrutiny, and can have severe negative effects on various fundamental rights, including freedom of expression. Any injunction shall be limited to the specific links provided by the plaintiffs in their petitions and should in no way be extended to an entire website or new domains without adequate judicial scrutiny.

Under the UTV program’s decision, the validity of the order to block websites “when satisfied that the impugned website is indeed a replica/redirect/alphanumeric website of the condemned Rogue site(s) and only offers new means to access the same underlying infringing website” obtained For the position of Deputy Registrar of the Supreme Court. This approach takes a highly desirable forensic examination on an important issue such as blocking websites/web pages.

Finally, if one looks at the complaint, it should be clear that the publishers provide only an illustrative list of copyrighted material that has been 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, the copyright may have expired; In others, the publisher may be incorrectly asserting copyright. So, until a court decides with a proper trial whether all Sci-Hub content infringes copyright, we can’t jump to any conclusions.

We therefore 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 can claim to benefit from any of the limitations and exceptions set forth in copyright law.

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Many copyright scholars around the world still cite the single-seat and oath-bench rulings of the Delhi High Court in the Delhi University Photo Shop case as rulings that considered the practical aspects of education in India, and provided a balanced solution that did not unnecessarily affect the authors’ incentives.

In this regard, a dynamic injunction against Sci-Hub and Libgen could do long-term damage to science in India and distort the delicate balance within the copyright system. The court of law in India should not allow itself to become a tool for perpetuating inequality of access to scientific literature in the developing world. Let the current copyright infringement dispute be resolved through a fair trial that handles cases in a more inclusive manner.

Arul George Sakarya is Assistant Professor of Law and Co-Director of the Center for Innovation, Intellectual Property and Competition (CIIPC) at the 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.

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