Digital technology offered new hopes for the quick dissemination of knowledge with a few clicks on your mouse. However, it may become impossible if four leading publishers having ownership of little less than half of the content in the world have their way.
In the latest episode, four leading publishers viz. Elsevier, Willy India Pvt. Ltd, Willy Periodicals LLC, and American Chemical Society approached the Delhi High Court seeking a dynamic injunction to shut down two websites viz. Libgen and Sci-Hub. These two websites provide free access to millions of books and articles to the research community including students and teachers. If the injunction is granted, the internet service providers (ISP) would be forced to block these websites in India. This will seriously undermine the ability of Indian science and social science researchers to access scientific and academic articles for their research and learning purposes.
Though the government of India spends Rs. 1500 crores to subscribe journals in various national and state universities including premier research institutes like IIT, IISER, IIMs, etc.. but a very large number of researchers and students are heavily dependent on repositories like Sci-Hub and Libgen to access the journals and other research publications. According to a study published in the Science magazine, during six months starting from 1st September 2015 to 31st March 2016 users from India downloaded 3.4 million articles from Sci-Hub. Another study published in Lancet Global, the highest downloading of medical journal articles is taking place from India. This shows that there is heavy dependence of the Indian research community on a digital library like Sci-Hub.
There is a huge concentration of the market in the publication of academic journals. If we take the 5 top publishers, they control more than 50% of the publications in science and social sciences worldwide. Even the leading university libraries like Harvard University’s Library cannot afford the subscription fee. Our research institutes and universities are also finding it difficult to procure these journals due to their exorbitant cost.
It is important to note that the publishing industry is not paying for the content. Content is generated by the academic community working in research institutes and universities which are mostly Government funded. Most of the peer reviewers are also not paid. As a result, the publishing houses’ expenditure is very low, and they earn high profitability. Publishing houses ask the researchers to assign their copyrights to the publishers as a pre-condition to publish articles. Then use these assigned copyrights to maintain a monopoly over the scholarly works.
It is argued that each time a reader reads a digital copy on his or her device, it is considered as reproducing the work, which is an exclusive right granted to the copyright owner under the Copyrights Law. In other words, enforcement of the exclusive right of reproduction in the digital context prevents the reader from reading the digital copy of the book or articles. A substantial percent of the research articles are now available only in digital format. The application of the exclusive right of reproduction, a legal concept developed in the physical copy context, in the digital context results in the denial of the right to read and access to knowledge.
It is also important to note that the vast majority of users of Libgen and Sci-hub are research communities and the nature of the use is non-commercial in nature such as study or research. Thus, there is no direct commercial use of these websites. Therefore, it is a non-commercial library where a research scholar can access the work. Section 51 of the Copyrights Act states: “Nothing in Sub-clause IV shall apply to the import of one copy of any work for the private and domestic use of the importer”. Thus importing one copy is not treated as an infringement. Thus the Indian researcher is not making any infringement.
Further, Section 52 of the Copyrights Act treats the following acts as not the infringement of the copyrights. (a) a fair dealing with any work, not being a computer program, for the purpose of—(i) private or personal use, including research;(ii) criticism or review, whether of that work or of any other work;(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public; Explanation.—The storing of any work in any electronic medium for the purposes mentioned in this clause, including the incidental storage of any computer program which is not itself an infringing copy for the said purposes, shall not constitute an infringement of copyright. Thus the individual downloading and storing is protected under the Act.
In view of the above legal position, it is submitted that treating reproduction of the work in a digital context at par with physical copy results in denial of access to read the book, which is not part of the exclusive rights of the copyright owner.
It is further submitted that blocking of digital libraries like Libgen and Sci-Hub would result in denied access to read and compromises the right to science guaranteed under the International Covenant on Economic Social and Cultural Rights (ICESCR). Article 15 .1 (b) obligates the Member Countries of ICESCR to ensure the right “to enjoy the benefits of scientific progress and its applications;” The General Comment No 25, which is the interpretation of the obligation by the body in charge of the implementation of ICESCR, states the core obligations under Article 15. It states that “Core obligations related to the right to participate in and to enjoy the benefits of scientific progress and its applications require States parties to: “Eliminate laws, policies, and practices that unjustifiably limit access by individuals or particular groups to facilities, services, goods and information related to science, scientific knowledge and its applications;”
In General Comment, No 17delaing with Article 15 .1 (c ) stated: “Ultimately, intellectual property is a social product and has a social function. State parties thus have a duty to prevent unreasonably high costs for access to essential medicines, plant seeds or other means of food production, or for schoolbooks and learning materials, from undermining the rights of large segments of the population to health, food, and education”. Thus, the awarding of a dynamic injunction compromises India’s obligations under Article 15. Similarly, Article 21 guarantees the right to life with dignity. This right to dignity imposes a duty on states to create an enabling environment to pursue knowledge.
In conclusion, the Delhi High Court may not grant the injunction on the following grounds:
1. Interpretation of the word ‘reproduction’ used in the copyright laws for physical objects cannot be applied to ‘digital mode’.
2. Use of free libraries like by students and researchers for non-commercial use cannot be considered as infringement of the copy right laws.
3. , it would be considered as against the public interest.
4. Granting injunction would also be considered as compromising India’s obligation under the ICESCR.
5. The content owners (publishing companies) should not be allowed to use legal tools to prevent the dissemination of knowledge.
It is also suggested that
1. Government should urgently amend ‘Section 52’ of the Copyrights Act to make the functioning of non-commercial initiatives like Libgen and Sc-Hub legal in India.
2. the Department of Telecom, which is a respondent in the petition should convey the public interest implications of denial of access to these websites before the court and oppose the granting of such injunction including the application of ex-parte injunction.
3. The Copyrights Act should be suitably amended to acknowledge the claim of universities and institutions in the rights on research published by the researchers and students while working there.
No order against Libgen for now from Delhi HC. Need government’s (@GoI_MeitY @rsprasad) proactive intervention to ensure continuous access to millions of books and articles to the researchers, students and teachers.