What Sci-Hub’s latest court battle means for research

Access to Sci-Hub has been blocked in several countries, but the site argues that its activities are allowed under Indian Copyright Law.Photo credit: Sharaf Maksumov / Shutterstock

Sci-Hub, the popular website that provides 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 activities in court in a copyright case filed in India by a group of major publishers.

In a lawsuit filed in Delhi High Court, the American Chemical Society, Elsevier and Wiley allege that the site infringes their copyright and are asking the court to order Internet service providers in India to block access to it.

Sci-Hub founder Alexandra Elbakyan argues that copyright law in India “is inapplicable in cases like Sci-Hub, when [material] is needed for science and education ”.

Legal experts say the court may rule in favor of Sci-Hub based on an important aspect of the country’s copyright law. The case depends on the definition of “fair trade” which has historically enabled institutions in India to lawfully reproduce science textbooks and other copyrighted material for use in education.

If Sci-Hub wins, it could force publishers to rethink their business models, much like how the music industry has changed in response to the internet, says Arul George Scaria, a law scholar at National Law University in Delhi. Attitudes towards Sci-Hub in other countries could change due to the Indian judgment and the outcome could even influence similar cases in the future.

Pirate side

Previously, publishers have sued Sci-Hub and Elbakyan in multiple 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 by Elsevier and the American Chemical Society over the past few years, US judges have ruled that Sci-Hub has infringed the publisher’s copyrights and owes them $ 15 million and $ 4.8 million, respectively. Elbakyan did not appear in court or offer legal representation for the site in these cases, and the fines have not yet been paid.

“Pirate sites like Sci-Hub threaten the integrity of scientific records and the security of university and personal data,” said the editors behind the case in India nature in a statement. “They are compromising the security of libraries and universities to gain unauthorized access to scientific databases and other protected intellectual property, and to illegally steal journal articles and e-books.” The editors also claim that Sci-Hub is responsible for stolen user data and phishing attacks used to extract illegally copyrighted magazine articles.

Elbakyan says these are “empty charges” that “have absolutely no evidence”. She denies that Sci-Hub poses a threat to science or the safety of academic institutions. “Open communication is a fundamental characteristic of science and enables scientific progress. Paywall access prevents this, ”adds Elbakyan. “This is a threat and not a sci-hub.”

The site has proven popular with researchers who say their institutions cannot afford expensive magazine subscriptions. India provides the third largest proportion of Sci-Hub users, and when publishers brought the Delhi case in December 2020, a group of lawyers offered Elbakyan legal representation.

“There are serious issues of access to knowledge that the court should consider,” says Lawrence Liang, a law scholar at Ambedkar University Delhi who is not part of the defense team but has helped provide support for Sci-Hub from scholars.

Fair dealing?

The defense will argue that Sci-Hub’s activities are covered by the list of exceptions in India’s 1957 Copyright Act. One of them is that a “fair handling” of a work can be used for private or personal use, including research.

Academic publishers have previously come into conflict with this section of the law. In 2012, five publishers – including Oxford University Press and Cambridge University Press – unsuccessfully sued Delhi University and its copy shop for alleged copyright infringement in course packages created at the institution. These packages contained photocopies of passages and chapters from textbooks and, in some cases, copies of entire books made for students, many of whom could not afford the originals.

The judge ruled that the university and copy shop are not violating the book publishers’ copyrights as one of the exceptions listed in the Copyright Act includes copying of works “by a teacher or student in the classroom”. An important part of the case was evidence presented to the court by students and teachers attesting the need for photocopies. This was allowed because the judgment was considered to be a sufficient national interest.

Liang was involved in the case, and says India’s fair trade regulations could be broad enough to facilitate access to items granted by Sci-Hub. As with the textbooks, the national interest in the case means that victims can bring evidence to court. Earlier this year, 20 of India’s top scientists argued that the country’s scientific community would be “grave prejudice” if the case was brought against Sci-Hub.

The scientists say in a document submitted to the court – a so-called petition – that the case “could have adverse effects on access to scientific knowledge and thus on scientific and technological research in India”.

“Access to information is vital for researchers. If the information is hidden behind paywalls, it slows innovation, ”says Shahid Jameel, a virologist currently at the University of Oxford, UK, who signed the petition. Computational biologist Rahul Siddharthan of the Institute of Mathematical Sciences in Chennai, India, adds that “except for a small number of elite institutes in India, most cannot afford” to subscribe to journals.

Additional petitions in support of Sci-Hub have been made by doctors and policy advisors who use science as part of their work.

Ripple effect

The next hearing on the case is slated for December 16, but legal experts warn it could take years. Scaria says the outcome will depend on whose rights the judge focuses on under copyright law. “If the judge looks at the matter from a copyright user rights perspective, there is a high chance that Sci-Hub will win the case,” he says. However, if the judge views the matter from the copyright owner’s perspective, the verdict could be against the site.

The consequences for publishers if Sci-Hub wins are difficult to predict, according to Sci-Hub’s lawyers Shrutanjaya Bhardwaj and Sriya Sridhar. “Courts in progressive nations often borrow principles from foreign jurisdictions, and it is possible that Sci-Hub’s victory in the Delhi Supreme Court will have global implications,” they say. On the other hand, a loss for Sci-Hub could lead to many researchers and institutions who cannot afford journal subscriptions being “excluded from access to scientific work”.

Elbakyan says the case could change everything for Sci-Hub. The profit could provide opportunities to improve the site and expand its reach.

“Today is the perception of Sci-Hub [is that] It’s an illegal project and it’s not even arguable, it’s a fact, ”she says nature. “The victory will show that the ‘fact’ is just an opinion.”

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