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Wednesday, October 27, 2021

Hardlook: Copyright vs wrong — the Sci-Hub case being fought in Delhi

A case between three academic publishers and the creator of pirate website Sci-Hub is currently being fought in the Delhi High Court.

Written by Sukrita Baruah | New Delhi |
Updated: September 29, 2021 7:53:54 am
What is unique about the case in the Delhi High Court is that it is the first time she is disputing through legal representation. (Illustration: Suvajit Dey)

A case currently being heard in the Delhi High Court has got the attention of academicians, scientists, and researchers across the world.

In December 2020, three major academic publishers — Elsevier, Wiley, and American Chemical Society — moved the court against Kazakh computer programmer Alexandra Elbakyan and website LibGen and its related additional domains. Elbakyan is the creator and owner of Sci-Hub, a pirate website which enables users to download research papers for free, bypassing paywalls and restrictions.

On its website, it claims to be “the first pirate website in the world to provide mass and public access to tens and millions of research papers”. The creators and owners of LibGen are unknown and the site provides free access to millions of journal articles and textbooks.

The publishing giants have appealed for a permanent injunction against them for copyright infringement by “unauthorised hosting, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same, of the Original Works owned by the Plaintiffs”. They have requested the court to order the Ministry of Electronics and Information and Technology and Ministry of Communi-cations and its Department of Telecommunications to issue a notification to internet and telecom service providers registered under it to block access to the sites in question.

The hearing is listed for September 28.

This is not the first lawsuit against Elbakyan. In 2015, Elsevier had first filed a lawsuit against her in a US court, which found her liable for wilful copyright infringement and entered a permanent injunction against her and charged her $15 million as statutory damages to Elsevier. With the servers based in Russia, outside US jurisdiction, Sci-Hub did not pay the damages.

In the years that followed, this has been followed by similar cases leading to blocking orders in Austria, Belgium, Denmark, France, Germany, Italy, Portugal, Russia, Spain and Sweden. Elbakyan had not defended herself in court in any of these cases. What is unique about the case in the Delhi High Court is that it is the first time she is disputing through legal representation.

“In most countries, I was not aware that Sci-Hub was being sued. For example, in Italy, France, Sweden, Russia and Austria I had learned about the lawsuit only after the website was blocked. Perhaps they notified me by email that I do not check regularly, or did not notify at all. Or perhaps I had not noticed. In the Indian case, I received a notification about the lawsuit on December 21, if I remember well, and I shared the news on Twitter. Many people reacted, and lawyers from India contacted me to support. In 2015, there was a lawsuit in the United States. At that moment, the Sci-Hub Twitter account did not have many subscribers… There was a phone conference in the US court that included a judge, Elsevier lawyers and me. The judge advised me to find a lawyer. I later tried to reach out to lawyers through the Electronic Frontier Foundation. Some responded, but there was not a lot of interest. I found the whole process of participating in a legal case complicated, expensive, and potentially dangerous, since I would have to disclose my physical location… Today, Sci-Hub has a lot more support and I have more experience so for me it is also less complicated,” she told The Indian Express over email.

The legal representation for Sci-Hub in India began building momentum when a young lawyer in Delhi — a regular user of the site himself — decided to try reaching out to Elbakyan.

“I completed my LLM from Delhi University in 2019. The only place where we could access journals in the university’s system was through the computers in its central library, but the infrastructure was very limited. There were only two operational computers of which only one was functional all the time, and there were thousands of students. I didn’t have much money, so I was dependent on Sci-Hub to get access to law journals I needed for my work. It had been a valuable resource for me and that got threatened when I found that there was an attempt to block access to it through the court. I got to know about the case when Alexandra posted about it on Twitter. When I read the plaint, I thought this must be challenged directly through her,” said 28-year-old Nilesh Jain.

He said he messaged her on Twitter but did not get a response. He then found her email ID and reached out to her there, after which she agreed to let him represent her.

Originally from Rajasthan, Jain has worked on policy and research with different agencies and organisations. Last year, he had worked with Citizens Collective for Peace to set up medico-legal camps in riot-affected areas in Delhi. He said he approaches this case as a matter of “great public interest to the scientific and academic community”.

Requesting the court for time to respond to the plaint after first representing Elbakyan on December 24, he managed to bring more experienced people on board, including intellectual property lawyer Rohan K George and senior advocate Gopal Sankaranarayan.

This was followed by impleadment applications filed by science organisations such as Delhi Science Forum, Knowledge Commons and a set of various scientists seeking to be made party to the case.

“Researchers have a very tough time in India. Except for top universities, institutes don’t have access to international journals because of high subscription fees for various journals. You need some mechanism for researchers to be able to access published papers, and it has always been the forum’s position that knowledge is universal and should be shared publicly… Researchers who write articles published in journals don’t receive any royalty and surrender their ability to share their knowledge to journals which charge huge amounts for access… Of course, there are some others who are legally sharing papers, but the repositories are nowhere as large as Sci-Hub,” said D Raghunandan, member of Delhi Science Forum.

He stated that there are two questions at hand that he argues need to be addressed separately: of the ability of researchers in India to access the material on the sites and of the legality of the way the sites are procuring the papers.

The plaintiffs in the case, however, raise issues of data protection and phishing attacks.

Stating that they promote “lawful sharing” of scholarly articles, the plaintiffs told The Indian Express in a statement through their lawyers that sites like Sci-Hub compromise the security of institutions and individuals through their methods.

“Pirate sites like Sci-Hub threaten the integrity of the scientific record, and the safety of university and personal data. They compromise the security of libraries and higher education institutions to gain unauthorised access to scientific databases and other proprietary intellectual property, and illegally harvest journal articles and e-books. The risks posed by Sci-Hub are exacerbated by the way it operates: using stolen user credentials and phishing attacks to illegally extract copyrighted journal articles.”

They also stated that “unlike academic publishers and societies, they have no incentive to ensure the accuracy of scientific articles, no incentive to ensure published papers meet ethical standards, and no incentive to retract or correct articles if issues arise”.

The lawyers for the defendant said did not want to respond on the merits of the case since the matter is sub judice.

Sci-Hub’s usage appears to have become normalised across universities and among researchers in India. In fact, the country forms the platform’s second largest user base and, according to Elbakyan, there are 7-8 lakh unique visitors to the site every month from India. This is behind only China, from where the site receives from 8-10 lakh unique visitors every month.

Wiggin LLP, a UK-based law firm, put together a report dated December 16, 2020, on the functionality of Sci-Hub for the plaintiffs. According to the report, between August and October 2020, the sci-hub.tw domain received 3.529 million visits from India. That domain was taken offline around September 20 after which a bulk of the traffic moved to the domain sci-hub.se which received 7,39,870 visits from India during the same duration.

It also found that as on December 7, 2020, sci-hub.se had a global Alexa rank of 3,137 and an India rank of 1,155.

The site claims to have more than 87.99 million research papers in its library. Researchers from the Department of Computer Sciences at Banaras Hindu University and CSIR-NISTAD, Dr Vivek Kumar Singh, Dr Sujit Bhattacharya and Satya Swarup Srichandan, have analysed the download requests originating in India received by Sci-Hub in 329 days in 2017. In that period, they found 13 million downloads from India for more than 5 million unique research papers. Their analysis of the disciplinary distribution of the downloaded papers showed that 21% were from Engineering, 19% from Health and Medical Sciences, 15% from Chemical Sciences, 11% from Computing Sciences, 8% from Biological Sciences, 5% from Physical Sciences and 5% from Technology.

In conversations with students and research scholars in different universities across the country, they stated that using the site to access papers has become a “norm”, a practice which is also leading them to not question limitations in the services provided by their universities.

Anurag Sharma, an M.Tech student at IIT-Delhi, said he ends up using Sci-Hub frequently despite his institute having access to most journals he requires.

“I think now for me it’s become more of a matter of convenience because of how quick the process is. I just need to find the DOI of the paper I need and download it, without having to go through a log-in process and put in a paper title. But it was different when I was doing my M.Sc. in Physics from Jamia. Then, I used only on Sci-Hub because I was not aware of the procedure to access subscribed journals. I think there were computers in the university library to access them, but we were never told about it,” he said.

A Ph.D. research scholar at DRDO in Delhi said his institute has subscriptions to a limited number of journals: “I’m not even sure which ones are available through the institute’s system. Whenever there’s a paper I need to access, I first look for it on the institute system. If I don’t find it there, I just download it from Sci-Hub. I frequently use the Sci-Hub Telegram bot to which I can send the DOI or link to the paper on Telegram and it sends the paper to me.”

A PhD candidate in the Department of Chemistry at IIT-Madras — one of the country’s top research institutes — said that while his institute has subscriptions to the publishers whose journals he uses the most, which are the three plaintiffs and the Royal Society of Chemistry, he has difficulty accessing papers more than 15 year old through them.

“I don’t know the reason for this and honestly, I haven’t bothered to try to find out because Sci-Hub has been there. I can place a request at my library for the papers I require and they can probably get it done, but that’s laborious and will take at least a few days, and I don’t have time for that because I’m rushing around the clock to get my work done,” he said. He added that usage of the site is “universal” at the institute, as well as other institutes in the city such as University of Madras and CSIR-CLRI.

Aniruddha Seal, an undergraduate student of Chemistry at NISER Bhubaneswar, said ever since college has gone online with the pandemic, the site has been his only access-point for research papers: “My institute has subscriptions to major publishers but remote access is available only to PhD students. All our papers have a research component, so we also need to refer to journals and papers. It’s such a norm to use Sci-Hub that no one has really raised concern over this, almost everyone in my class is using it.”

In fact, in the case of Jain’s alma mater Delhi University, The Indian Express had reported in 2019 that the university had not updated its subscription in over two years to over 40 online databases providing access to journals and other resources. Delhi University renewed its subscription to 34 of these only this year, restoring access to required research materials after several years to its researchers.

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