By providing a massive library of scientific and academic publications for free, Sci-Hub and Libgen have achieved a somewhat unique status in the ‘pirate’ market.
On the 1 hand, the platforms freely unfold knowledge and education, 2 of the most valuable commodities for those seeking a more enlightened and progressive global community.
On the other, the platforms do so by leveraging copyrighted content that is owned and monetized by massive corporations who insist that their business models are being illegally undermined.
The belief that all information should be free is certainly not new but having scientific and academic knowledge as a subject matter has lit a fire under people who would normally shy away from promoting infringement. After balancing the greater fine of the many against the earnings of the few, some scientists and researchers are even prepared to go to court to fight for Sci-Hub’s existence.
Blocking Case in India
Given their size and reach, Sci-Hub and Libgen are regularly targeted by academic publishers Elsevier, Wiley, and American Chemical Society. In late 2020 they filed an application for an ISP blocking injunction at the High Court in Delhi, which in other piracy cases has proven a relatively straightforward matter.
Very quickly, however, large groups of scientists, academics, teachers and students protested the legal action. A judge then agreed that dissenting voices should be heard, declaring the case and a matter of public significance.
All of that said, applications to intervene in such matters aren’t always a success, as 1 group of researchers has just discovered.
Court Rejects Intervention Application
Researcher and scientist Subbiah Arunachalam (sometimes referred to as Mr. Open Access) is well known for his campaigns in favor of open entry for academic journals in developing countries. Biochemist Padmanabhan Balaram is a former director of the Indian Institute of Science and himself the author of more than 400 research papers.
Together with colleague and open entry advocate Madhan Muthu, the academics filed an application to intervene in the Sci-Hub case alongside a call for a government investigation into the “monopolistic and unfair pricing” in the scientific publishing sector.
The application was based on a straightforward premise. If Sci-Hub and Libgen are blocked by ISPs in India, researchers’ entry to scientific papers distributed by Sci-Hub would be denied, something that would have a “deleterious impact on public interest.”
That reasoning alone proved insufficient in the eyes of Justice C Hari Shankar.
“That, by itself, in my view, cannot represent a basis to allow a third party to intervene in the proceedings in such a fashion,” his ruling reads.
“If the material in question is infringing, it would have to be taken off and if the consequence is that it becomes unavailable to persons who were making use of such material, that is but a consequence which follows in law, and cannot be a basis for such persons to intervene in the litigation which is in the nature of a lis in personam.”
Justice Shankar Has Other Concerns
As far as the injunction application is concerned, the researchers are not related to Sci-Hub, the publishers, or the allegations of copyright infringement. For the purposes of their intervention, they identify as consumers of probably infringing content with sincere concerns for the public interest.
On this basis, however, they represent a small subset of a probably massive pool of Sci-Hub users who may also feel that the site should stay open for the greater fine. This raises concerns for the Court in respect of its power to allow a party to present an opinion or participate in a case.
“In my view, such intervention cannot be permitted under Order I Rule 8A of the CPC. If such intervention is permitted, it would be a carte blanche for persons, who claim to be beneficiaries of material which is alleged to be infringing in nature, to start intervening in the infringement proceedings, which would critically impact the prosecution of the proceedings in the Court,” the order reads.
“In view thereof, I am of the opinion that no case for permitting intervention, by the candidates in the present lis is made out. The application is, accordingly, rejected.”
Other Applications for Intervention
As reported last November, additional intervention applications have also been filed with the High Court by other researchers. These are nonetheless pending but are being challenged by the academic writer plaintiffs.
It is not currently clear whether these applications will be equally rejected. In at least 1 of the applications there are claims that since India’s Copyright Act provides exceptions for “fair dealing”, making available and consuming copyrighted research material would not represent infringement under Section 52(1)(a)(i) of the Copyright Act.
The same application also raises concerns that a broad blocking injunction would not only cover the plaintiffs’ copyrighted works but all other content on Sci-Hub on a everlasting basis.
The High Court order denying intervention can be found here (pdf)