<nettime> What Sci-Hub’s latest court battle means for rese

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www.nature.com /articles/d41586-021-03659-0

What Sci-Hub’s latest court battle means for research, 13 December 2021

DOI: 10.1038/d41586-021-03659-0

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

In a lawsuit presented in Delhi’s high court, the American Chemical 
Society, Elsevier and Wiley say that the site infringes their copyright, 
and ask the court to instruct Internet service providers in India to 
block access to it.

Sci-Hub’s founder Alexandra Elbakyan argues that, in India, copyright is 
“not applicable in cases such as Sci-Hub, when [material] is required 
for science and education”.

Legal experts say that there is a chance the court will rule in 
Sci-Hub’s favour, because of a key aspect of the country’s copyright 
law. The case hinges on the definition of ‘fair dealings’, which in the 
past has enabled institutions in India to lawfully reproduce academic 
textbooks and other copyrighted material for use in education.

If Sci-Hub wins, it could force publishers to rethink their business 
models in a similar way to how the music industry changed in response to 
the arrival of the Internet, says Arul George Scaria, a legal scholar at 
the National Law University, Delhi. Attitudes towards Sci-Hub in other 
countries could change on the basis of India’s ruling, and the outcome 
could even influence similar cases in future.

Pirate site
Previously, publishers have sued Sci-Hub and Elbakyan in several 
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 in recent years by Elsevier and the American Chemical 
Society, US judges ruled that Sci-Hub infringed the publishers’ 
copyrights and owed them US$15 million and $4.8 million, respectively. 
Elbakyan did not appear in court, or offer any legal representation for 
the site during those cases, and the fines have so far not been paid.

“Pirate sites like Sci-Hub threaten the integrity of the scientific 
record, and the safety of university and personal data,” the publishers 
behind the case in India told Nature in a statement. “They compromise 
the security of libraries and higher-education institutions, to gain 
unauthorized access to scientific databases and other proprietary 
intellectual property, and illegally harvest journal articles and 
e-books.” The publishers also allege that Sci-Hub uses stolen user 
credentials and phishing attacks to extract copyrighted journal articles 
illegally.

Elbakyan says that these are “empty accusations” that “have absolutely 
no content of evidence behind them”. She denies that Sci-Hub is a threat 
to science, or to the security of academic institutions. “Open 
communication is a fundamental property of science and it makes 
scientific progress possible. Paywalled access prevents this,” Elbakyan 
adds. “That is a threat, and not Sci-Hub.”

The site has proved popular among researchers, who say their 
institutions cannot afford costly journal subscriptions. India accounts 
for the third-largest proportion of Sci-Hub’s users, and when publishers 
brought the Delhi case in December 2020, a group of lawyers offered 
Elbakyan legal representation.

“There are serious questions of access to knowledge that the court ought 
to take into account,” says Lawrence Liang, a legal scholar at Ambedkar 
University Delhi, who isn’t part of the defence team but helped to rally 
support for Sci-Hub from scientists.

Fair dealings?

The defence will argue that Sci-Hub’s activities are covered by the list 
of exemptions in India’s Copyright Act of 1957. One of these is that 
‘fair dealings’ of a work can be used for private or personal use, 
including research.

Academic publishers have fallen foul of this section of the act before. 
In 2012, five publishers — including Oxford University Press and 
Cambridge University Press — unsuccessfully sued the University of Delhi 
and its photocopying shop for alleged copyright infringement in course 
packs made at the institution. These packs contained photocopies of 
passages and chapters from textbooks and, in some cases, copies of 
entire books that were produced for students, many of who could not 
afford to buy the originals.

The judge ruled that the university and the photocopying shop were not 
infringing the copyright of the books’ publishers, because one of the 
exemptions listed in the copyright act includes reproducing work “by a 
teacher or pupil in the course of instruction”. A key part of the case 
was evidence submitted to the court by students and teachers stating the 
need for the photocopies. This was allowed because there was deemed to 
be sufficient national interest in the ruling.

Liang was involved in that case, and says that India’s fair-dealing 
provisions could be broad enough to facilitate the kind of access that 
Sci-Hub gives to articles. As with the textbooks, national interest in 
the case means that affected parties can submit evidence to the court. 
Earlier this year, 20 of India’s top scientists argued that the 
country’s scientific community “stands to be gravely prejudiced” if the 
case goes against Sci-Hub.

The scientists say in a document — known as a petition — submitted to 
the court that the case could have an “adverse impact on access to 
scientific knowledge, and so on science and technology research in India”.

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

Further petitions supporting Sci-Hub have been submitted by medical 
doctors and policy advisers who use scientific papers as part of their work.

Ripple effect

The case’s next hearing is scheduled for 16 December, but legal experts 
warn that it could rumble on for years. Scaria says that the outcome 
will depend on whose rights the judge focuses on under the copyright 
rules. “If the judge views the matter from the perspective of user 
rights under copyright law, there is a high chance that Sci-Hub will win 
the case,” he says. But if the judge views the matter from the 
perspective of the copyright holder, the verdict might go against the site.

The ramifications for publishers if Sci-Hub wins are hard to predict, 
says Shrutanjaya Bhardwaj, one of Sci-Hub’s lawyers, but “courts in 
progressive nations frequently borrow principles from foreign 
jurisdictions, and it is possible that Sci-Hub’s victory before the 
Delhi high court will cause a global ripple effect”. A loss for Sci-Hub 
could see many researchers and institutions that cannot afford journal 
subscriptions being “excluded from access to scholarly work”, he adds.

Elbakyan says that the case could change everything for Sci-Hub. Winning 
could bring opportunities to improve the site and extend its reach.

“Today, the perception of Sci-Hub [is that] it is an illegal project, 
and that is even not disputable, but a fact,” she tells Nature. “Victory 
will show the ‘fact’ to be merely an opinion.”

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