Prof. (Dr.) M.P. Ram Mohan and Aditya Gupta

The rise in the cost of subscription to academic literature far outpaces the budgets of academic libraries — the resultant situation: A Serials Crisis. The growing frustration within the academic community has given rise to a Pirate Open Access Movement, where online databases and libraries provide free access to paywalled academic literature. Sci-Hub, one of the most extensive pirate databases, is presently defending a copyright infringement suit before the Delhi High Court. In the present blog post, the authors argue for a purposive interpretation of copyright law in the background of the Serials Crisis.

Note: This blog post is based on a study conducted by the authors (available here). The full paper is forthcoming in the 2022 Spring issue of the NYU Journal of Intellectual Property and Entertainment Law.

1.      Serials Crisis and the academic publishing industry

The world of academic publishing is a world in crisis.  With the average cost of journal subscriptions rising at an annual rate of 6%, it has been estimated that academic libraries spent over USD 8.1 billion in 2016 for securing access to academic literature. Indian universities and research institutions reportedly spent over USD 200 million annually for subscribing to paywalled academic literature. This steep rise in the cost of academic literature has been accompanied by stagnant and reducing library budgets across the world. Well-funded universities such as Harvard University and the University of California have issued public statements expressing their inability to keep up with the rising prices of academic journals. Other universities have threatened to boycott for-profit academic publishers.

Further aggravating an already debilitating situation is the structure of the publishing industry, where five publishers control over 53% of all scholarly literature. These publishers continue to exact large profit margins: Wiley 28.3%.  Taylor and Francis: 35.7%, Elsevier: 37.2%, Springer Nature 22.8%. The publishers substantially hedge the costs of their business by leveraging the academic community.

Writing for the Guardian in 2011, George Monbiot described the business of academic publishing as pure economic parasitism. Academicians and researchers who often work with publicly funded universities and receive substantial government grants submit their research articles to publishers without any monetary compensation. Other members of the academic community help publishers process these submissions through peer review and editorial services, which are most often uncompensated. The publishers then sell these articles to universities and libraries, many of which are again funded from public funds. The UK House of Commons commented on this position, noting that “public money is used at three stages in the publishing process: to fund the research project; to pay the salaries of academics who carry out peer review for no extra payment; and to fund libraries to purchase scientific publications.”

The resultant frustration against the academic publishing industry and the lack of an overarching change addressing the issues of access to literature has given rise to the Pirate Open Access Movement. One of the prominent flagbearers of this movement is Sci-Hub, which has emerged as one of the world’s largest shadow libraries of academic articles. A result of Kazakhstani doctoral student’s frustration over inaccessibility to academic research, Sci-Hub presently provides free access to over 68.4% of the world’s academic research and indexes over 85% of articles published in toll-access journals. Further, the database’s script can download research articles on request. Therefore, it is possible that the 31.6% of articles that are not available on Sci-Hub have never been requested by users. Indian academics  are also avid consumer of the database. Over 91% of articles published by Indian authors are available through Sci-Hub. Out of a total of 67,857 articles published by Indian authors in 2016, 61,706 articles are available on Sci-Hub. India is also the third-largest user of the database. Download requests from India accounted for 8.7% of the overall download requests from the database. Sci-Hub services an average of 39,952 download requests from India on a daily basis.

2.      Judicial scrutiny of Sci-Hub and a normative reading of Indian Copyright Law

The Sci-Hub database has been the subject of varying kinds of copyright injunctions in America, France, Russia, Sweden, Belgium and the United Kingdom. In December 2020, three academic publishers, Elsevier, Wiley and the American Chemical Society, initiated copyright infringement proceedings against Sci-Hub in India before the Delhi High Court.

The possibility of an order in favour of the publishers upset many members of the academic community. Blog posts and opinion pieces poured in favour of Sci-Hub. A common thread in the submissions made in the public forums and even before the Delhi High Court highlights the unique nature of copyright litigation in India. The Indian judiciary has time and again recognised the issue of access to learning materials and has moulded copyright law to respond to the realities of the Indian education system. A primary example of this case is the very famous DU Photocopy case (see here and here). Arguably one of the most important decisions in Indian copyright jurisprudence, five publishers approached the Delhi High Court to seek an injunction against Delhi University (DU) and a photocopy service provider within the university’s campus. The plaintiffs’ claimed that DU had “institutionalised infringement by prescribing chapter from the publications of the plaintiffs as part of the curriculum and permitting photocopy of the said chapter and sale thereof as course packs”.

The defendants sought refuge under Section 52(1)(i), Copyright Act, 1957, which provides protection against the use of a copyrighted work in the course of instruction. With a judgement high in moral content and policy exposition, a Division Bench of the Delhi High Court gave a very wide interpretation to Section 52(1)(i). The Court explicitly declined to import any “qualitative or quantitative thresholds” on secondary use and argued “by producing more citizens with greater literacy and earning potential, in the long run, improved education expands the market for copyrighted material”. Further, the plaintiffs had proffered a very restrictive interpretation of the phrase in the course of instruction and had sought to limit it to face to face interactions. The Court declined this position and noted that the word ‘course’ means that the protection covers the entire process of education in a semester.

The purposive interpretation of the court, coupled with the judicial cognizance of the unique requirements of the Indian education system, uniquely places the Indian copyright system on the map of copyright enforcement. This is especially important in the pending litigation against Sci-Hub.

3.      An argument for retaining a normative reading of Indian Copyright Law in favour of Sci-Hub

On December 24, 2020, the court directed Sci-Hub not to upload any new articles, the copyright in which resides with the plaintiff. This caused a furore within academic circles, which submitted representations in Sci-Hub’s favour before the Delhi High Court. On January 6, 2021, Justice Midha allowed nineteen academicians and three public interest organisations to submit their interventions in the case. At the time of writing this article, i.e. March 2022, the matter remains sub-judice before the Delhi High Court. Like the DU Photocopy case, the Sci-Hub litigation aligns with the larger Access to Knowledge movement and furthers the cause of higher education and academic research. Therefore, a case can be made out to extend the purposive and liberal interpretation delivered in the DU Photocopy case to the Sci-Hub litigation as well.

The primary argument taken by the publishers is that they hold the exclusive right to reproduce, issue copies for the public, and communicate the concerned work to the public. Since the defendant database has openly communicated Plaintiff’s copyrighted works to the public, without due authorisation, they would be liable for copyright infringement. Therefore, the crux of the litigation would rely on the statutory limitations and exceptions of the copyright bargain: particularly the fair dealing doctrine embodied in Section 52 of the Copyright Act, 1957.

Section 52, Copyright Act, 1957 is unique in its construction. While Section 52(1)(a) incorporates the fai dealing doctrine of copyright law, the remaining provisions of Section 52 enumerate the permitted uses and exceptions to the scope of copyright law (see Chawla and Bhagwati 2013; Mohan and Gupta 2021). The Delhi High Court, in ICC Development v. New Delhi Television and subsequently in The Chancellor v. Rameshwari Photocopy, opined that since Section 52(1)(a) incorporates the general idea of the fair dealing doctrine, it has to be subjected to a stricter standard of fairness. The other provisions of Section 52 are only subjected to a general idea of fairness (Mohan and Gupta 2021). For the court to apply the fair dealing doctrine, it has to analyse two questions: 1) is the use for one of the listed purposes; 2) if yes, is the use fair, considering the fairness factors.

a.      Sci-Hub supports and facilitates research

In order to qualify for protection within Section 52(1)(a), Sci-Hub’s activities need to be “for the purposes of private or personal use, including research”. The Supreme Court in CGT v. P. Gheevarghese opined that the phrase ‘for the purpose of’ means “it is that which one sets before himself as an object to be attained; the end or aim to be kept in view of the any plan, measure, exertion or operation”. Applying the Supreme Court’s rationale to the Sci-Hub dispute, since the act of making available the research material facilitates and contributes to research, the activity could be protected.

Further, there are cogent constitutional and policy-based justifications for affording a liberal interpretation of the fair dealing doctrine. Primarily, copyright law in itself is premised on the promotion of creativity. The various limitations and exceptions that form a part of the copyright bargain are premised on the promotion of creativity. The Delhi High Court in University of Cambridge v. BD Bhandari explains the scope of limitations and exceptions to guarantee “not only a public pool of ideas and information abut also a vibrant public domain in expression, from which an individual can draw as well as replenish”. Further, the Delhi High Court in Wiley v. IIM has argued, “the basic purpose of Section 52 is to protect the freedom of expression under Article 19(1) of the Constitution of India – so that research, private study and criticism or review or reporting of current events could be protected”. This position has been reiterated by the Jammu and Kashmir High Court in Romesh Chowdhry v. Ali Mohammad; “under the guise of a copyright, the authors cannot ask the court to close all the doors of research and scholarship and all frontiers of human knowledge.”

b.      Fairness of Secondary Use by Sci-Hub

To satisfy the second rung of the analysis within Section 52(1)(a), it has to be adjudged whether the secondary use is fair. In order to determine this fairness, Indian courts have often deferred to the four-factor test incorporated in Section 107 of the American Copyright Act. Justice Nandrajog in the Rameshwari Photocopy case opined that the four-factor test is essential for determination the scope of fairness within Section 52(1)(a). The four-factor test was developed within American copyright scholarship and has since been statutorily enacted as Section 107 of the American Copyright Act. Following are the individual elements of the test:

The purpose and character of the infringing use: The founder of Sci-Hub, Alexandra Elbakyan, has time and again communicated her altruistic motivations behind creating and managing the Sci-Hub database. Speaking to The Wire, Elbakyan communicated Sci-Hub’s view is that science should not be controlled by a few big companies, but it should be a dynamic network of learned societies. Sci-Hub does not intend to create an archive of the world’s scholarly literature. In 2015, the database deactivated the archiving of several journals which published their scholarship without paywalls and aligned themselves with the larger Open Access movement.

Further, the character of Sci-Hub’s business model is not commercial. It does not charge its users for accessing research literature. While Sci-Hub does accept donations, it is widely accepted that it does not generate any profits from its services. Therefore, one may argue the first factor would work in favour of the defendant database as its secondary use qualifies as non-commercial educational use.

The nature of the copyrighted work: The second factor assesses the originality and creativity of the works and their value of the public. The material over which copyright applies can be viewed as a spectrum, where one end is occupied by factual works, such as telephone directories, which deserve minimal to no protection within copyright law. The other end of the spectrum would be occupied by creative works which deserve extended protection within copyright law. It is unclear as to what end of the spectrum would be occupied by academic literature. However, the string of cases from the American copyright dispute Cambridge University Press v. Becker points to the conclusion that scholarly books and literature only incorporate weak copyright. The District Court for the Southern District of New York in Am Geophysical Union v. Texaco argued that scholarly articles are more factual than creative in nature.

However, the courts have often rejected the rulification of any analysis within the second factor. For coming to any conclusion within this factor, the court has to appreciate every individual copyrighted material individually. If a summary is not possible regarding the nature of the copyrighted material, the court cannot be expected to determine the nature of each of the 56,246,220 articles hosted by Sci-Hub. Therefore, the Court will have to devise some bright-line rule to determine its analysis within the second factor. Since the judicial precedents on the subject argue that scholarly literature is more factual than creative, the bright-line rule should ideally favour the Defendant.

The portion used in relation to the copyrighted work as a whole: While Sci-Hub’s secondary use has entirely appropriated the plaintiff’s copyrighted material, it is not necessary that such appropriation would inevitably result in an unfavourable finding. This has been established through judicial precedents. In the string of judicial opinions which form a part of the Google Books library case, American copyright courts have time and again returned findings of fair use. The Courts have considered the public importance of secondary use and returned findings of fair use despite the complete appropriation of copyrighted material.

Therefore, while important, the third factor cannot tilt the entire fair use analysis. Despite complete appropriation by Sci-Hub, it is possible that the court relies on the public importance of the database to return a finding of fair use.

The effect of the use upon the potential market for or value of copyrighted work: The Fourth factor is a balancing test “between the benefit the public will derive is the use is permitted and the personal gain the copyright owner will receive if the use is denied” (Nimmer 1963). While this issue was addressed in the DU Photocopy case, Justice Endlaw noted: “the students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiff”. This position was reiterated on appeal by the Division Bench, which noted that a student could not be a potential customer for the reference books or the suggested readings for a semester. For reference, a student would visit the library which houses the books rather than buying the said books.

Extending this rationale to academic publications, the primary customers of the academic publishing industry are academic libraries. Personal subscriptions account for less than 3% of the annual revenues in academic publishing. This is also reflected within the pricing structure of articles and research material. The average cost of accessing an academic article is USD 30. If researchers have to buy individual subscriptions to articles, preparing every singular paper would cost thousands of USD.

Therefore, since individual subscriptions are not the target population of the publishing industry, a decision in favour of Sci-Hub would not affect the potential market value of copyrighted works.

Prof. (Dr.) M.P. Ram Mohan is an Associate Professor at the Indian Institute of Management (IIM), Ahmedabad.

Aditya Gupta is a Research Associate at the Indian Institute of Management (IIM), Ahmedabad.