Written by Anushka Panwar, The author is a law student pursuing BA.LLB (hons) from Jindal Global Law School.
Introduction:
Shadow libraries are pirate websites that upload tons of research articles, books, comics etc. Recently, cases have been filed against such shadow libraries like Sci-hub, LibGen and Z-library by big-house publishers. The charges against them are of copyright infringement which are in murky waters due to certain exemptions granted under the Copyright Act of various countries. A major exemption is for the purposes of “research” in the Indian Copyright Act, 1957 (hereinafter ICA). Supporters and advocates for these shadow libraries are largely academicians and students protesting the business model of the publication industry. The subscription and per article cost are unaffordable by many students and individual scholars. While the cause is admirable, these shadow libraries operate with unfair means. They access articles and jump paywalls through phishing attacks. Copyright laws and piracy are in a perpetual tug-of-war where the State stands confused trying to strike a balance between the right to research and corresponding rights of the publishers. The need is to address the situation head-on with employing changes in the business model of publication itself.
Fair-Dealing and Fair-use Doctrines: U.S. and Indian Perspectives:
Copyright is a type of intellectual property which protects the author’s original creations. Two doctrines are mentioned while discussing copyright. The fair-dealing model clearly and restrictively outlines exceptions to the copyright act which otherwise would have attracted a liability. It’s applicable in India, U.K., and other former colonies of the latter. The U.S. counterpart relies on fair-use doctrine. The broad idea is that acts where the public interest outweighs the author’s interests, then the liability of copyright infringement isn’t attracted. The aim behind the copyright legislation in the U.S. is for the progress of science and learning. For India, the aim behind the legislation is to protect the work for “unlawful reproduction”. Section 107 of the Copyright Act of 1976 in the U.S. grants exemption to uses for teaching, research, and scholarship. Similarly, Section 52 of ICA exempts private or personal use including research and reproduction of any work in the course of instruction etc. The right to research occupies a common place in the exemption lists of both the doctrines.
The Right to Research: Why Piracy is being preferred?
An interview with Alexandra Elbakyan reveals a major reason why piracy is on the rise. As a student engaged in high-end scientific research, she encountered paywalls. Many scientific journals demand money to access a single article. Subscription charges are unfathomable that even well-funded libraries are cutting down on their journal subscriptions. The statistics show that even Harvard couldn’t afford rising fee changed by the journals as institutional subscriptions include various journals, and the total cost is often around $500,000 to $2 million. Clearly, the problem lies in the business model of the publication industry. The top five publishing companies – Elsevier, Black & Wiley, Taylor & Francis, Springer Nature and SAGE, control more than 50% of the market. It’s also a quick fix as one doesn’t have to look through multiple journals to find articles as these websites offer everything at one place.
Mechanism behind the shadow libraries: Aspects of Illegality?
Although Sci-hub prides itself on using login credentials provided by the people willingly, Elsevier’s court filing highlights that a phishing campaign is underway. To gain institutional access to journals, they are stealing individual credentials. Having control over passwords, access to personal information can be gained and manipulated. Even academic libraries are at risk and incurring huge costs due to malware attacks caused by Sci-hub intruders. In UK, police have warned students not to use Sci-hub as the threats of cyber attacks revolve around the universities and students alike. Moreover, research has suggested that Sci-hub has stolen log-in credentials from over 373 universities in 39 countries. However, only a few universities and students are taking preventive measures. This shows that the demand of free flow of information and research by the people is so much that the bargain proposed by these websites is readily accepted by them.
Constitutional basis of Right to Research:
The debates around right to research came into existence, almost around the same timeline as the emergence of the Rameshwari photocopy case and now the Sci-hub battle. There are three main issues surrounding the R2R debates. Firstly, the high costs of accessing the research articles. Secondly, the inability to access these articles through the Open Access journals due to limited repository. Lastly, the falsity of the claim that higher academic piracy is being done in areas which lack legal and institutional infrastructure. In support of the last point, statistical data confirms that free piratical resources are accessed by individuals who are “highly educated” and possess legal and institutional access to resources. It also explains how the facilities are lacking to the extent that even huge investment won’t be able to cater to the influx of the demand generated by the people. In the Indian context, the Freedom of speech and expression is protected under Article 19(1)(a) and the Right to Life and Liberty under Article 21 of the Constitution.
Both Articles encompass R2R. In the case of Rabinder Nath Malik v. Reg’l Passport Officer New Delhi, the court interpreted Article 21 to include the “right to acquire useful knowledge” among other “lawful desires” as the same are necessary for the “orderly pursuit of happiness”. The court in the case of Francis Coralie v. Union Territory of Delhi, held “facilities for reading, writing and expressing oneself in diverse forms” as the bare necessity of life. Similarly, the court has interpreted Article 19(1) to include “freedom of propagation of ideas” which is ensured by the “freedom of circulation” in the case of Romesh Thapper v. The State of Madras. In Wiley v. Indian Institute of Management, the Delhi High Court highlighted that the purpose behind Section 52 of the ICA is to protect the Article 19(1)(a) of the Constitution. It also mentioned that the intention of the Parliament is not to “negatively prescribe what is infringement”. Thus, the R2R is a right granted to all the individuals rather than being restricted to scholars or academicians. It finds its basis in the Indian Constitution as opposed to being restricted to the Copyright Act only. This interpretation further protects the research purposes being both commercial and non-commercial.
Copyright Infringement: Fact-based publication vs. Fictional publications
The key to navigate through the recent copyright infringement case in India i.e., Elsevier Ltd. And Ors. vs Alexandra Elbakyan And Ors., is to first distinguish between the nature of the material found on the shadow libraries. They host a variety of content including both fictional and fact-based materials and hence differences arise. Firstly, academic publishers cater to specifically academic libraries and institutions (68-75%), corporate subscriptions (15-17%), advertising (4%), membership fees and personal subscriptions (3%). As compared to trade publishing which caters to the general audience as it includes genres like self-help, fiction, non-fiction etc. Secondly, the authors in academic publishing do not expect payments for the supply of articles, leading to high profits. The reason being that it’s a huge win if their article is published in top-journals which maintain their supremacy through peer-review publications. Even peer-reviewers do the job for free! Thus, the profit margins are higher than 40%. Also, the demand for this market is highly inelastic, thus forcing the libraries to keep-up their subscriptions even if they sky-rocket. Trade publishing is a complete opposite of academic publishing as they have high costs like advances and royalties paid to the author, direct and overhead costs etc. Consequently, the “big publishers” aim at making 10% profit on sales
The Correct Approach: Alternate Interpretation of Judgement to Halt Piracy
The conclusion is that piratic websites end up affecting the authors of the trade publishing and in the academic publishing, the publishers themselves suffer. Moreover, the shadow libraries like LibGen have a collection of comics and novels along with the academic publishing. The piracy of novels and other trade published content is illegal under ICA. But the Section 52 of ICA exempt works that are for research purposes. This makes it difficult for the Court to hold these pirate sites innocent as they do upload content that infringes copyright. In the Rameshwari photocopy case, the Court held that if an action done onerously is not an offence, then doing the same in much convenient fashion through technological advances, cannot be considered as an offence. It also said that “when the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence.” This cannot be applied to the present dispute of Sci-hub as the effect of this website is free and permanent reproduction of text obtained through illegal methods involving phishing attacks. The act no longer remains onerous.
The remedy of dynamic injunction fails here as the content on these websites can be both copyright infringing and non-infringing. In the case of Eastern Book Company and Ors. vs. D.B. Modak and Anr., the Court held that the issue of copyright revolves around “commercial viability, and commercial consequences and implications.” Thus, the loss of profit occurring majorly in the trade publishing of YA novels etc., causing serious damage to series-based book, need to be compensated.
Recommendations:
The Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) in Article 9 mentions two things. Firstly, the authors of such works shall have the exclusive right of authorizing the reproduction of these works. Secondly, the reproduction is governed by the laws of each country, but they shouldn’t conflict with a “normal exploitation” of the work and must not “unreasonably prejudice the legitimate interests of the author”. India being a signatory to the same, needs to rethink the copyright act in the age of digital publication and reproduction. The issue of access is key. The publishers must think of an alternative business model due to the inviable nature of the present ones. Suggestions involve adopting a “subscription-based” system like the music industry i.e., Spotify subscriptions which are monthly and yearly. Greater impetus could be given to the legitimate Open Access journals through government funding. Moreover, the practice of publishing in the “big 5” journals should be discouraged, giving opportunities to the authors to publish more in Open-Access journals, which provide a much-better platform for dissemination of their results.
Conclusion:
The purpose of scientific and academic publications should not be forgotten. Collective researching and free flow of information and ideas is key to thrilling inventions and discoveries. The same should also involve giving due credit to the authors and publishers alike. There is no balancing act rather, they should exist mutually contributing to the larger goal. The free flow of information is not free at all. The bargain is the personal information and the manipulation of the same is a serious threat. Sci-hub is hard to shut-down, but it can be evolved to much-better ethical and viable alternative.
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