Would it be justice to hinder knowledge?

Recently, the Delhi High Court in Elsevier Ltd v. Alexandra Elbakyan issued an order to block access to the shadow library website Sci-hub and its mirror websites in India, in response to a copyright infringement suit.

The Union Ministry of Information and Technology and the Department of Telecommunications were directed to notify internet and telecom service providers to restrict access to the sites. This judgment constitutes a considerable setback for researchers within the scientific community who benefit from freely accessible research, as it neglects to acknowledge even a minimal extent of user rights in the context of copyright law application.

Section 52 of the Indian Copyright Act, 1957 acts as a gateway for user rights, providing certain exemptions as ‘fair dealings’ against the originator’s exclusive right over his work.

The liberal interpretations of these provisions have historically enabled Indian institutions to lawfully reproduce academic textbooks and other copyrighted materials for educational purposes, as evidenced in The Chancellor, Masters & Scholars of the University of Oxford & Ors v. Rameshwari Photocopy Services, where the primary focus was on the purpose and character of use.

Section 52, which specifically mentions ‘private use, including research,’ could have been interpreted to prioritise the examination of the purpose and character of use in the recent judgment. Furthermore, the concept of 'transformative use' could have been applied to allow fair usage of materials when the intent is transformative, which suggests that a work built upon a copyrighted work in a different manner or for a different purpose than the original, is not violation of law.

The recent judgment relied heavily on the precedent set by UTV Software Communication Ltd & Ors. v. 1337x.To. However, a nuanced evaluation of its implications has been missed out. The Court failed to consider the impact on researchers and the specific criteria outlined in the UTV Software case for implementing website blocking measures. The UTV ruling stated that such orders should only be passed if deemed 'necessary' and 'proportionate', considering less restrictive alternatives. While 'necessary' indicates that a particular measure is essential to achieve a specific aim, meaning there are no less restrictive means capable of producing the same result, 'proportionate' requires establishing that the measures do not excessively impact the defendant's interests.

The Court's decision in the Sci-hub case did not sufficiently address the former aspect, particularly public interest implications.

Third, the application of the UTV ratio for academic research purposes may be overly simplistic. While the UTV case focused on piracy in industries such as films, where financial losses are more apparent than other purposes, the same logic may not be directly applicable to academic research, where the primary goal is knowledge dissemination rather than profit, which is secondary.

The UTV bench also acknowledged the existence of a minority of platforms, underpinned by ideologies advocating piracy as a social good. Even when considering this argument from a minimal perspective, the recent judgment failed to withstand the scrutiny rendered by it.

According to a study published in the Journal of Scientometric Research in 2021, India ranks third among 25 countries in the distribution of research papers downloaded from Sci-hub, highlighting the platform's significance for researchers in the country. It further articulated that if Sci-hub were to be blocked, approximately 32,576 papers would become inaccessible on a daily basis. High weekday downloads of Sci-Hub, including from workplaces, indirectly reveals inadequate access to research articles on Indian institutional campuses, as per the study.

Even in leading research hubs, reliance on Sci-Hub highlights insufficient institutional print and digital access to scholarly papers. In fact, several factors contribute to Sci-hub's popularity according to the paper, including its user-friendly interface compared to institutional repositories, limited institutional access to costly journals and the potential impact on innovation due to restricted information access. A piece from Nature published in 2021 suggests that blocking Sci-Hub could significantly impact 20 of India’s leading scientific communities.

Currently, India’s research infrastructure counts on the implementation of the quite recent addition ‘One Nation One Subscription (ONOS) initiative’, which has 7,247 subscriptions so far.

However, this represents only about 12% of the institutions registered in the All India Survey on Higher Education (2021-2022), which includes 1,168 universities, 45,473 colleges and 12,002 standalone institutions. Moreover, some crucial research materials could in any case remain outside the scope of ONOS scheme even after its subscription, leaving no alternative means of access.

Additionally, a comparative analysis of research remuneration in India from 2004 to 2023 reveals that Indian research stipends are the lowest in both nominal and real terms when adjusted for inflation compared to countries such as the UK and Germany. Therefore, drawing inspiration from countries that have banned Sci-Hub, where researchers have significantly higher purchasing power than their Indian counterparts, is like turning a blind eye to social inequality among researchers.

The Supreme Court recently acknowledged the nation's intellectual backbone, that is, the class of academics and their significant contribution to training young minds. This raises questions as to whether merely recognising this intellectual foundation is sufficient to serve academic interests, particularly when denying access to irreplaceable research tools.

This situation thus becomes a missed opportunity to send a message to the global research community that the right to knowledge should be universally applicable to all, transcending the unequal divide between affluent providers and less privileged consumers in developing nations.

Priyanshi Singh is a KL Arora Chair on Criminal law fellow at National Law University, Delhi.