www.nature.com /articles/d41586-021-03659-0
What Sci-Hub’s latest court battle means for research, 13 December 2021
DOI: 10.1038/d41586-021-03659-0
Sci-Hub, the popular website that offers access to millions of pirated
research papers and books, is no stranger to legal action. But, for the
first time, the site is defending its operations in court, in a
copyright case filed in India by a group of major publishers.
In a lawsuit presented in Delhi’s high court, the American Chemical
Society, Elsevier and Wiley say that the site infringes their copyright,
and ask the court to instruct Internet service providers in India to
block access to it.
Sci-Hub’s founder Alexandra Elbakyan argues that, in India, copyright is
“not applicable in cases such as Sci-Hub, when [material] is required
for science and education”.
Legal experts say that there is a chance the court will rule in
Sci-Hub’s favour, because of a key aspect of the country’s copyright
law. The case hinges on the definition of ‘fair dealings’, which in the
past has enabled institutions in India to lawfully reproduce academic
textbooks and other copyrighted material for use in education.
If Sci-Hub wins, it could force publishers to rethink their business
models in a similar way to how the music industry changed in response to
the arrival of the Internet, says Arul George Scaria, a legal scholar at
the National Law University, Delhi. Attitudes towards Sci-Hub in other
countries could change on the basis of India’s ruling, and the outcome
could even influence similar cases in future.
Pirate site
Previously, publishers have sued Sci-Hub and Elbakyan in several
countries, and access has been blocked, or is due to be blocked, in 11
countries, including Germany, France, Sweden and the United Kingdom.
In lawsuits filed in recent years by Elsevier and the American Chemical
Society, US judges ruled that Sci-Hub infringed the publishers’
copyrights and owed them US$15 million and $4.8 million, respectively.
Elbakyan did not appear in court, or offer any legal representation for
the site during those cases, and the fines have so far not been paid.
“Pirate sites like Sci-Hub threaten the integrity of the scientific
record, and the safety of university and personal data,” the publishers
behind the case in India told Nature in a statement. “They compromise
the security of libraries and higher-education institutions, to gain
unauthorized access to scientific databases and other proprietary
intellectual property, and illegally harvest journal articles and
e-books.” The publishers also allege that Sci-Hub uses stolen user
credentials and phishing attacks to extract copyrighted journal articles
illegally.
Elbakyan says that these are “empty accusations” that “have absolutely
no content of evidence behind them”. She denies that Sci-Hub is a threat
to science, or to the security of academic institutions. “Open
communication is a fundamental property of science and it makes
scientific progress possible. Paywalled access prevents this,” Elbakyan
adds. “That is a threat, and not Sci-Hub.”
The site has proved popular among researchers, who say their
institutions cannot afford costly journal subscriptions. India accounts
for the third-largest proportion of Sci-Hub’s users, and when publishers
brought the Delhi case in December 2020, a group of lawyers offered
Elbakyan legal representation.
“There are serious questions of access to knowledge that the court ought
to take into account,” says Lawrence Liang, a legal scholar at Ambedkar
University Delhi, who isn’t part of the defence team but helped to rally
support for Sci-Hub from scientists.
Fair dealings?
The defence will argue that Sci-Hub’s activities are covered by the list
of exemptions in India’s Copyright Act of 1957. One of these is that
‘fair dealings’ of a work can be used for private or personal use,
including research.
Academic publishers have fallen foul of this section of the act before.
In 2012, five publishers — including Oxford University Press and
Cambridge University Press — unsuccessfully sued the University of Delhi
and its photocopying shop for alleged copyright infringement in course
packs made at the institution. These packs contained photocopies of
passages and chapters from textbooks and, in some cases, copies of
entire books that were produced for students, many of who could not
afford to buy the originals.
The judge ruled that the university and the photocopying shop were not
infringing the copyright of the books’ publishers, because one of the
exemptions listed in the copyright act includes reproducing work “by a
teacher or pupil in the course of instruction”. A key part of the case
was evidence submitted to the court by students and teachers stating the
need for the photocopies. This was allowed because there was deemed to
be sufficient national interest in the ruling.
Liang was involved in that case, and says that India’s fair-dealing
provisions could be broad enough to facilitate the kind of access that
Sci-Hub gives to articles. As with the textbooks, national interest in
the case means that affected parties can submit evidence to the court.
Earlier this year, 20 of India’s top scientists argued that the
country’s scientific community “stands to be gravely prejudiced” if the
case goes against Sci-Hub.
The scientists say in a document — known as a petition — submitted to
the court that the case could have an “adverse impact on access to
scientific knowledge, and so on science and technology research in India”.
“Access to information is crucial for researchers. When the information
is hidden behind paywalls, that curbs innovation,” says Shahid Jameel, a
virologist currently at the University of Oxford, UK, who signed the
petition. Computational biologist Rahul Siddharthan at the Institute of
Mathematical Sciences in Chennai, India, adds that “apart from a small
number of elite institutes in India, most cannot afford to subscribe” to
journals.
Further petitions supporting Sci-Hub have been submitted by medical
doctors and policy advisers who use scientific papers as part of their work.
Ripple effect
The case’s next hearing is scheduled for 16 December, but legal experts
warn that it could rumble on for years. Scaria says that the outcome
will depend on whose rights the judge focuses on under the copyright
rules. “If the judge views the matter from the perspective of user
rights under copyright law, there is a high chance that Sci-Hub will win
the case,” he says. But if the judge views the matter from the
perspective of the copyright holder, the verdict might go against the site.
The ramifications for publishers if Sci-Hub wins are hard to predict,
says Shrutanjaya Bhardwaj, one of Sci-Hub’s lawyers, but “courts in
progressive nations frequently borrow principles from foreign
jurisdictions, and it is possible that Sci-Hub’s victory before the
Delhi high court will cause a global ripple effect”. A loss for Sci-Hub
could see many researchers and institutions that cannot afford journal
subscriptions being “excluded from access to scholarly work”, he adds.
Elbakyan says that the case could change everything for Sci-Hub. Winning
could bring opportunities to improve the site and extend its reach.
“Today, the perception of Sci-Hub [is that] it is an illegal project,
and that is even not disputable, but a fact,” she tells Nature. “Victory
will show the ‘fact’ to be merely an opinion.”
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