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