Scientific journals and copyright infringement

15 January 2021

Scientific journals and copyright infringement

On January 8, 2021, Twitter permanently suspended the account of shadow library website Sci-Hub because it violated its counterfeit goods policy.

Sci-Hub had been gathering support from scientists and academicians in India via its Twitter account following a copyright infringement lawsuit filed against it and the Library of Genesis (Libgen), another shadow library website. That is, until the notice of permanent suspension came along.

The sites provide free access to academic and scientific journals, books, articles and peer-reviewed papers. The collection of SciHub, founded in 2011, contains materials that are otherwise paywalled in other sites. Libgen’s collection includes literature that are either not digitized or are also paywalled in other information sites.

The copyright infringement suit was filed by leading journal publishers Elsevier, Wiley and the American Chemical Society before the Delhi High Court on December 21, 2020. They’re claiming exclusive rights to materials in Sci-Hub’s and Libgen’s content. They’re infringing on these rights, the publishers said, as these shadow library websites are giving free access to such materials.

Sci-Hub has over 85 million papers available for download. Its Twitter account was created in 2012 and boasts of 180,000 followers. The suspension came two days after a court hearing on the case on January 6.

Previously on December 24, the High Court passed an injunction order against the Defendants, stating no new articles or publications, in which the plaintiffs have copyright, will be uploaded or made available” until January 6.

The Plaintiffs are also seeking for both sites to be completely blocked in India via a dynamic injunction. The Plaintiffs are respected publishers in the global academic community. Elsevier publishes the Lancet and Cell, among others. The American Chemical Society, one of the world’s largest scientific societies, publishes the Journal of the American Chemical Society. Meanwhile, Wiley publishes 1,700 journals.

“Dynamic injunction petitions generally provide intellectual property owners with an incredibly wide spectrum of remedies without proper judicial review and there can be significant negative implications for a number of fundamental rights. Any injunction should only be with respect to the particular links as provided by the Plaintiff in their petition and under no circumstance should it extend to the complete website or all the mirror domains of a website without proper judicial scrutiny,” said Sudhansu Sahoo, legal associate at Khurana & Khurana in New Delhi.

That the Plaintiffs are merely providing an illustrative list of copyrighted materials from Sci-Hub’s and Libgen’s content should be taken into consideration, Sahoo explained. It could be that the copyright for some of these materials has expired. Or, they may not have those rights at all in the first place because they don’t have proper agreements with the authors.

“In these scenarios, completely blocking these websites is not an optimal solution and has a potential to violate the fundamental rights of the website providers,” said Sahoo. “Hence, it is essential that the court of law conducts a proper trial to determine whether all the content on the website is infringing copyrights or if the primary purpose of the website is to disregard and infringe copyrights before issuing a dynamic injunction. Alternatively, the contentions/submissions of the Defendants may be heard at length to consider whether they are contesting the copyright ownership as claimed by the Plaintiff and undertake assessment only of the contested copyrighted material/articles.”

A dynamic injunction will also prevent easy access to important scientific information by students, researchers, doctors and professors. Already, the injunction passed by the High Court in December sent a wave of protests across India’s academic and scientific community. The Delhi Science Forum, Knowledge Commons and a group of scientists filed an impleadment application amidst the December 24 injunction.

With the pandemic still ongoing, some libraries and universities may still be closed. To start with, some university libraries in India did not have enough funding to provide adequate access to these references. And then there are those peer-reviewed literature behind paywalls requiring tens of thousands of rupees as payment for access.

However, Elsevier, Wiley and the American Chemical Society do have a strong case, according to Sahoo.

“The impugned websites allow anyone to download articles, research paper, scientific and academic journals etc., free of cost. Most of these materials are behind a paywall and hence the case of ‘copyright infringement,’” he said.

At the same time, the case rests on weak moral grounds, he said.

“The actual authors of the papers who publish in these journals, in a majority of cases, don’t get any monetary benefit from these publications. In such cases, they do not earn royalties per download and are not a stakeholder in these infringement suits. The editors and peer-reviewers do the work of bringing out the journals mostly for free. However, these organizations like Elsevier, Wiley, etc., get paid millions of dollars by institutions and universities for access to these journals. Thus, organizations like Elsevier add no value to these publications and seek payment merely for their valuable content archive,” explained Sahoo.

Nevertheless, Sahoo believes the case will impact India’s IP legal framework.

“This decision will have a significant impact on the IP rights and laws in India because this case discusses a very relevant issue of whether free access to research papers by the Defendant will come under the ambit of fair dealing as defined under Section 52 of the Copyright Act or not,” Sahoo explained. The Section states that “private or personal use, including research” constitutes fair use.

The next hearing is scheduled in February. Until then, Sci-Hub will not upload any new papers from the Plaintiffs.

Elsevier had successfully filed similar suits against the two sites in other jurisdictions.


Espie Angelica A. de Leon

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