Right to Research and Copyright Law: From Photocopying to Shadow Libraries

M P Ram Mohan* & Aditya Gupta**

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Academic research and publishing are facing a crisis. The importance of access to academic literature in an interconnected world, the ever-growing cost of subscriptions to this literature, different revenue models of journals, and reduced or stagnant library budgets are pushing the academic community to find alternatives for research publications. In its 25 years of existence, the Open Access Movement and models which sought to contain the crisis have become the subject of considerable criticism. At the same time, a significant portion of academic literature remains locked behind steep paywalls. This has led to the growth of pirate websites and shadow libraries, which have been met with forceful legal retribution by publishers using copyright laws. Using the Sci-Hub case, a current copyright infringement case brought by a group of publishers before the Delhi High Court, this Paper evaluates the Open Access Movement, fair dealing in copyright law, academic piracy, and court cases in the United States, India, and other countries within the broad meaning of the right to research. The Paper concludes that a purposive interpretation of copyright law may have an answer enabling a just outcome.†

Introduction

Close your eyes and imagine that your taxpayer money is being used to construct a road in your neighbourhood. The company overseeing the construction does not pay a salary to its workers; some workers even pay a fee for the privilege of working on the project. The project managers who ensure that the construction complies with the relevant regulatory criteria are not paid either. Furthermore, if you, as the taxpaying funder of this project, wish to walk on the road, you must buy access to it. Purchasing access is required for fragments of the road. The cost of accessing a significant portion of the road requires a subscription cost in the neighbourhood of a million dollars. Brian Resnick and Julia Belluz, writing for Vox, posed this hypothetical to discuss the extremely profitable business of academic publishing.¹ Would you consider this a viable business model?

The commercial and for-profit academic publishing industry has leveraged uncompensated labour from researchers and academics² to create a business that generates over $25.7 billion in annual global revenues.³ The hypothetical workers in Resnick and Belluz’s comparison are experts who conduct research, prepare articles, and submit them for free to academic publishers. The overseers are the peer review board and editors of the journals, who often work without any monetary remuneration. In some cases, researchers pay “Article Processing Charges” for the publication of their research, which can be understood as analogous to the fees paid by the hypothetical workers. A substantial number of these academics and researchers work with universities and organisations that receive generous government grants—hence, the involvement of public money. Lastly, students, academics, and other researchers who want access to the published papers must buy subscriptions, despite their taxpayer money having subsidized the research.

Generally, scholarly publications, such as books, are information goods with high fixed and low variable costs.⁴ Academic journals have managed to leverage the scholarly community to hedge the fixed costs of their business. The primary goods for their business (i.e., scholarly research) and quality control (i.e., peer review) are provided free of charge by the academic community.⁵ A report from the U.K.’s House of Commons described that in academic publishing “public money is used at three stages in the publishing process: to fund the research project; to pay the salaries of academics who carry out peer review for no extra payment; and to fund libraries to purchase scientific publications.”⁶ This offsets the high fixed costs, a unique feature of information goods, and turns academic journals into atypical information goods.⁷

Partial blame for the situation can be attributed to the market structure of academic publishing. Five publishers account for more than 53% of all papers published, with the concentration in some disciplines such as psychology and chemistry being as high as 71%.⁸ The largest academic publisher, Elsevier, enjoys 16% of the total market share⁹ and recorded over $3 billion in revenue during 2017-18.¹⁰ Elsevier’s profit margins have grown from 30.6% in 2006¹¹ to 34% in 2014¹² to over 37.12% in 2018.¹³ Other prominent market players also report similar margins, with Springer Nature reporting 22.8%,¹⁴ Wiley 28.3%, and Taylor and Francis 35.7%.¹¹

Reconciling publishers’ profit margins with the serials crisis is not easy.¹⁵ Academic publishers have developed a robust digital infrastructure that facilitates easy and wide dissemination of an author’s research. They have also managed to coalesce a global network of academics and subject experts to create and maintain journal brands that ensure the credibility and dependability of academic research. Publishers often cite these developments to argue that their business model accrues substantial costs.¹⁶ However, if publishers accrue such high costs, how do their profit margins remain as high and steady? Deutsche Bank asked a similar question and confirmed that Elsevier adds little value to academic research.¹⁷

George Monbiot, writing for The Guardian in 2011, described the academic publishing business model as pure economic parasitism, where goods subsidised by public funds have to be bought back for public access at exorbitant prices.¹⁸ While the contemporary structure of academic publishing might not reflect this, one of its core ideals has been maximising access to scientific knowledge. This aspiration can be traced back to 1665, when the first scientific journal, The Philosophical Transactions of the Royal Society, was established.¹⁹

In the late 20th century, this aspiration gave shape to the Open Access (OA) movement, which lobbied and argued for removing obstacles to accessing, sharing, and reusing academic literature.²⁰ Intrinsically tied to the development of the internet, the OA movement coalesced throughout the 1990s and eventually culminated in The Budapest Open Access Initiative of 2002.²¹

Unfortunately, in its over 25 years of existence, the OA movement has not radically changed the academic publishing industry.²² Recent estimates suggest that only 30% of academic literature archived over the internet is available without paywalls.²³ While the contribution made by the OA movement is significant, the fact remains that of every three articles archived over the internet, two articles remain firmly guarded by steep paywalls.²⁴ Further, the prominent models of the OA movement have encountered inherent problems. For example, the Article Processing Charges levied to defray the cost of publishing have witnessed a 16% price increase between 2013-16.²⁵ This raises pertinent questions on the sustained viability and future relevance of the OA movement.²⁷ Some of the more prominent “academic pirates,” such as Sci-Hub, have managed to provide access to over 68% of the world’s scholarly literature.²⁸ Compared with the OA movement, Sci-Hub offers free access to twice the academic literature (68% and 30%, respectively) in less than ten years of its existence.²⁹

However, due to the nature of their activities, academic pirates have been the subject of repeated judicial scrutiny. In 2020, five prominent academic publishers initiated copyright infringement litigation in India against two prominent academic pirates: Sci-Hub and Libgen. The Authors view this litigation as an opportunity for the Indian judiciary to comment on the serials crisis, which plagues the academic community of the 21st century. The present Paper seeks to investigate if the fair dealing doctrine, an essential part of the copyright regime, can protect Sci-Hub from copyright infringement liability.

Part I of the Paper studies the OA movement and underlines its shortcomings to highlight the emergence and relevance of academic pirates. Part II discusses judicial decisions from different jurisdictions where Sci-Hub has been a part of the litigation. It also examines the relevance of Sci-Hub in the present state of academic publishing along with the moral and ethical justifications for its existence and usage. Part III familiarises the readers with the underlying legal framework, which threatens the continued existence of Sci-Hub and has enabled academic publishers to leverage such a profitable business model. Part IV discusses a decision from an Indian High Court, where requirements of higher education motivated the Court to interpret the Indian copyright law purposively. Part V argues that a purposive interpretation of copyright law may enable a just outcome favouring the “academic pirates.”

I. The Open Access Movement in Academic Publishing

The OA movement, at its core, is an argument that all academic literature should be available freely to all users in a form that is “digital, online, free of charge and free of most copyright and licensing restrictions.”³⁰ Professor John Willinsky views the OA movement as “the next step in a tradition that includes the printing press and penny post, public libraries and public schools.”³¹ The movement seeks to curb two related problems: the access problem and the impact problem.³²

The access problem is a result of a dramatic increase in the price of academic journals and the restrictions placed by publishers on the reuse of published research.³³ It is closely associated with the serials crisis.³⁴ With shrinking library budgets and a consistent annual raise of 6% in the price of academic journals, the access problem has reached an “uncomfortable equilibrium.”³⁵ A dataset published in 2018 revealed that universities in the United Kingdom paid over £4 million in 2016-17, up from £3.9 million in 2012-13—an 18.9% rise within four years.³⁶ A dataset published by Stuart Lawson surveyed 160 U.K. universities for the subscription fees paid to ten publishers. The data revealed a payment of £108,031,286 in 2017, £110,011,988 in 2018, and £112,800,677 in 2019—an increase of £4,769,391 within three years.³⁷

The impact problem is an obvious result of the access problem.³⁸ Without access to scholars’ research, the potential impact of the scholarship is never fully realised. This negatively affects the recognition of individual scholars, impedes scientific progress, and demotivates the efforts of funders who support academic research.³⁹

Before the 1950s, journals did not operate commercially and favoured practices that are mere aspirations of the present-day OA movement.⁴⁰ The physical and biological sciences scholars were among the first academics who identified the potential of OA publishing and exemplified its viability. In August 1991, Professor Paul Ginsparg launched the arXiv.org platform, arguably the first repository promoting OA in publishing.⁴¹ arXiv was developed “to allow any researcher worldwide with network access to submit and read full-text articles, giving equal entry to everyone from graduate students up.”⁴²

The OA movement is marred by many conflicting definitions.⁴³ However, three influential public statements laid the foundation for the OA movement. The definitions from the three statements can help in defining and theorising the movement.³⁴ John R. Beatty has summarised the three definitions in the following table:⁴⁴

Definitions of Open Access (Adapted verbatim from John R. Beatty)

The OA movement has developed alongside the internet and places immense reliance on the internet’s ability to remove the barriers of price and permission in academic publishing.⁴⁵ Referring to the internet, the Budapest Open Access Initiative noted, “An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment . . . . The new technology is the Internet.”⁴⁶

There are two ways research can be made OA: the Gold Road and the Green Road.⁴⁷ This classification is premised on who provides OA copies of an article: the publisher or the author.

A. Gold Open Access

The Gold Road is a publication model where research is made openly available by the publisher to whom it is submitted,⁴⁸ i.e., “free access at the original place of publication.”⁴⁹ Paramount importance is placed on the journal as a fundamental unit.⁵⁰ Walt Crawford defines Gold OA as “immediate full-text online access at no charge to readers.”⁵¹ Journals that follow the Gold Road provide similar publication services as conventional journals, including quality control of submissions through peer review and editorial committees.⁵² Therefore, Gold OA requires a reform of the existing publication models.⁵³ The Gold Road to OA contradicts scholarly journals’ present “reader-pays” business plan, which means that publishers fostering Gold OA policies must generate an alternative source of revenue.⁵⁴

To understand the economic viability of Gold OA publishing, we need to identify the different types of Gold OA journals.⁵⁵ The first group of journals, free OA/platinum OA, depends on a sponsoring society to cover publishing costs.⁵⁶ The second group of journals, OA journals with APC, charge authors with article processing charges (APCs). The third kind of journals are hybrid OA journals, which work off of the toll-access publishing model and allow a truncated or limited form of OA by providing access to the published material optionally, retrospectively, in a limited manner, or after a certain period.⁵⁷

The APC-funded Gold OA nourishes its revenue stream from authors through APCs, rather than from readers through subscriptions. Therefore, for publishers, “the move to online open access is utopian.”⁵⁸ Springer served as a pioneer in the move to APC-funded OA with its Springer Open Choice platform, which imposed a flat rate of $3,000 per article.⁵⁹ The United Kingdom’s report, titled Monitoring the Transition to Open Access, stated that over 60% of journals worldwide have an APC-funded OA model in place. By imposing APCs, which generally range from $100 to $6,700,⁸ commercial publishers have managed to retain and, in some cases, maximise their profit margins.⁶⁰

However, APC-funded Gold OA and Hybrid OA should not be cited as solutions to the serials crisis. While the two publication models have witnessed tremendous growth,⁶¹ the fact remains that APC-funded Gold OA creates barriers to publications for researchers whose funding institutions lack the budget to cover APC costs.⁶² For example, Springer Nature announced their plans of charging $11,390 as APC costs for their 32 journals from 2021.⁶³ This price translates to just under ₹850,000—a steep cost for most academics, particularly in developing countries such as India.

Hybrid OA journals, on the other hand, enjoy a very obvious advantage. Referred to as “double-dipping,” Hybrid OA journals can leverage their publication model to recover the price of an article twice: first, when an author pays APCs and second, when a subscription to the journal is sold to academic libraries.⁶⁴ Even the editorial boards of some Hybrid OA journals have expressed their concerns about the APC-funded publication model and issues such as double-dipping.⁶⁵

APCs can be viewed as a tax on research publications. The higher a university’s research output, the higher its payments towards APCs. Michael Levine-Clark has discussed such a situation in the context of the California Institute of Technology. If all research originating from the Institute had been published within an APC-funded model, the Institute would have spent $7.5 million on publication costs in 2016. These costs are more than double the subscription costs ($3.1 million) paid by the Institute in 2016.⁶⁶

The APC-funded model may also lead to elitism. Early-career researchers and those working with smaller universities may not be able to pay high APCs.⁶⁷ Support for publication costs will eventually have to be rationed by universities and institutions. Such rationing would favour academics and researchers who can ensure a supply of funds from outside the institutions “to the probable detriment of humanities and social sciences scholars.”⁶⁸ This can potentially create a group of self-perpetuating elite researchers.⁶⁹

Therefore, arguing in favour of APC-funded Gold or Hybrid Open Access is potentially synonymous with replacing the problem of academic publishing from exorbitant subscription costs to ever-rising APCs without affecting the publishers’ profit margins.⁷⁰ It can dilute decades’ worth of efforts to move away from a commercial publishing infrastructure to a public non-commercial infrastructure for open scientific communication.⁷¹

B. Green Open Access

Green OA means self-archiving of the research by an author.⁷² It places paramount importance on the article or research as a fundamental unit.⁷³ In general, the Green OA option “allows an author to post some version of the article” on the internet in a freely available manner.⁷⁴ From pre-print versions⁷⁵ to versions that have been published in toll-access journals,⁷⁶ publication of a manuscript at any stage qualifies as Green OA.

The Green Road to OA remains independent from the business of online publishing. It works “in parallel” to the conventional publishing model, serving as a “supplement to toll access.”⁷⁷ The essence of Green OA and self-archiving is best captured in Professor Jean-Claude Guédon’s statement: “[Self-archiving] simply aims at improving the research impact of established scientists and little else. If it should help (or hurt) other categories or people, so be it, but it is neither its concern nor its worry.”⁸ Self-archiving is not novel for the academic community. Professor John Willinsky notes:

[T]he self-archiving concession follows on the tradition of publishers sending neat bundles of offprints to authors, who then sent them off with a warm note to colleagues, students, and family . . . . The difference is that in archiving a work, the author opens and extends access to it on a more democratic and global basis . . . .⁷⁸

It is arguably the most cost-effective and affordable means for the promotion of OA.⁷⁹

Green OA copies can be found at many online locations, including institutional repositories, subject repositories, and personal/department websites.⁸⁰ Articles can also be submitted to academic social networks such as the Social Science Research Network (SSRN).⁸¹ Owing to the push provided by the larger OA movement, the number of online repositories has seen a significant upsurge. The Directory of Open Access Repositories⁸² listed only 128 repositories in 2005,⁸³ which rose to approximately 2,000 in 2012 and over 5,000 in 2021.⁸⁴ Professor Ginsparg’s arXiv.org is an example of a subject-based repository with over 2 million submissions and over 2 billion downloads.⁸⁵

Considering the statistical evidence, the Green OA Road has arguably become an integral part of the more extensive OA movement. However, we are yet to understand: What is the overall prevalence of OA publishing? A study published in 2018 notes that only roughly one in three journal articles is available through OA.⁸⁶ This proportion includes Green OA publishing, including pre-print versions of an article where authors may archive a version of their research that is not peer-reviewed. The findings on such pre-print versions may not be verified. Relying on such unverified findings can be difficult. Even if we ignore the reliability of Green OA, it is interesting to see that, in over 25 years of its existence, the OA movement has only freed roughly 30% of all academic literature.

C. Open Access Movement in India

Having understood the development and prevalence of the OA movement globally, this Part studies the development and relevance of the movement in India. Indian mathematicians, computer scientists, and biologists were amongst the first to participate in global OA initiatives by depositing pre-print versions of their articles in the arXiv repository.⁸⁷ A meeting conducted in 1999 at the Indian Academy of Sciences, Bangalore—a society registered for open science—can be traced back as one of the first calls to public access within the Indian research community. During the meeting, participants underlined the argument for open access to the public data prepared and stored by the Survey of India.⁸⁸ By 2002, initial steps for promoting Open Access initiatives started gaining traction at many institutes in India. In 2002, the Indian Institute of Science (IISc) established the first Indian electronic repository: Eprints@IISC.⁸⁹

Apart from institutional mandates, the funders of Indian research also started promoting Open Access. In 2011, the Council of Scientific and Industrial Research (CSIR)—an autonomous organisation set up by the Government of India in 1942—issued an Open Access Mandate. Each laboratory funded by the CSIR was required to create an interoperable OA repository.⁹⁰ All of the journals published by the CSIR-funded laboratories were required to be made OA compliant. In 2014, two departments under the Ministry of Science and Technology published an Open Access Policy.⁹¹ The policy clearly articulated that since the funds disbursed by the two departments are public funds, the knowledge generated from this research should be publicly accessible. The policy encouraged institutions to create institutional repositories, which, it was hoped, would directly feed into a central harvester: www.sciencecentral.in. Another significant step towards the OA movement in India was signing the Delhi Open Access Declaration (DDOA) in 2018. The stakeholders adopted a ten-point agenda for ensuring the availability of research literature and the dissemination of research outputs.⁹²

However, institutional mandates have largely remained checkered, and the OA landscape in India remains fractured without a national OA mandate.⁹³ In December 2020, the Government of India proposed a new, ambitious “One Nation, One Subscription” policy, where “for one centrally negotiated payment, all individuals in India will have access to journal articles.”⁹⁴ The current policy continues to subscribe to the “reader-pays” subscription model and does not subscribe to the “author-pays” OA models advocated by European funders who formed cOAlition S.⁹⁵ Such a policy confirms the traditional business model of academic publishing and furthers an every-country-for-themselves policy, which can be detrimental to the global interests in open science and knowledge.⁹⁶

Coming to the relevance of OA publishing in India, reports suggest that around 24.19% of scholarly articles published by Indian authors in the past five years were available for OA via either the Gold or the Green OA Road.⁹⁷ Comparing this to the average proportion of OA literature available worldwide, which stands at roughly 33%,²³ OA publications in India are slightly lower.⁹⁸ Among the OA roads in India, the Gold OA Road is the most significant, with about 10-12% of OA articles published via the Gold Road. In comparison, about 6% of OA articles follow the Green OA model.⁹⁹

II. Black Open Access: Piratical Access to Nearly All Scientific Literature

Only a third of the world’s research has complied with OA publishing in roughly 20 years of the movement’s existence. While significant, it is an underwhelming development. Complex institutional, political, financial, and economic conditions that limit access to knowledge at the geographic and institutional periphery of academia¹⁰⁰ have given rise to the third road to OA: the “Black” Road.¹⁰¹

The past decade has witnessed the rise and fall of many shadow libraries, including Textz.org, a*.org, monoskop, and Library.nu.¹⁰² The public catalogues of these libraries made them vulnerable to judicial sanctions. Library.nu was one of the first victims of overarching judicial sanctions when, in 2015, a group of seventeen publishers were granted an injunction against the website in the United States.¹⁰³ However, it was arguably the high-profile investigation into Aaron Swartz, the founder of Reddit and the author of Guerrilla Open Access Manifesto, along with the open defiance of the academic publishing model by Sci-Hub that brought the Black Open Access movement to the forefront of scholarly debate and judicial scrutiny.¹⁰⁴

The most important shadow library—and one which is of primary interest for the present Paper—Sci-Hub, has also been the subject of many litigations in various jurisdictions. In what has been identified as “the largest copyright infringement case in the history of the U.S. and the history of the world,”¹⁰⁵ Elsevier, in 2017, secured a $15 million injunction against Sci-Hub. The American Chemical Society (ACS) was also granted an injunction with damages to the tune of $4.8 million.¹⁰⁶ Sci-Hub has also faced injunctions and blocking orders in France, Russia, and Sweden.¹⁰⁷ However, despite the judicial orders, the website continues to operate through mirror sites and proxy servers.¹⁰⁸ Neither Elsevier nor ACS could recover any of the $19.8 million worth of damages awarded to them.¹⁰⁹

The following Part analyses the relevance of the Sci-Hub database. It also addresses the ethical and moral justifications of Sci-Hub’s activities.

A. The Development and Contemporary Relevance of Sci-Hub

Sci-Hub has emerged as one of the largest shadow libraries of academic articles. Frustrated by the models of academic publishing, Alexandra Elbakyan created Sci-Hub, which went live on September 5, 2011.¹¹⁰ Long before creating Sci-Hub, Elbakyan first honed her hacking skills at Kazakh University and then moved to Moscow, where she worked in computer security. After Moscow, Elbakyan moved to the University of Freiburg in Germany in 2010, after which she did a research internship at the University of Georgia. After completing her internship, Elbakyan returned to Kazakhstan, where she could not access the academic scholarship she needed to conduct her research.¹¹¹ In one of her interviews, Elbakyan recounts that she needed access to hundreds of articles, each of which would have cost her around $30.¹¹² Sci-Hub amassed widespread attention in 2016, which became evident from Nature featuring Elbakyan in its “Ten People Who Mattered This Year” list.¹¹³ Interestingly, Sci-Hub’s fame and Elbakyan’s citation came around the same time as the U.S. District Court granted an injunction against Sci-Hub on Elsevier’s petition.¹¹⁴

Sci-Hub provides access to over 68.9% of the world’s academic research, including 85% of articles published in toll-access journals.¹¹⁵ A study conducted in 2018 indicates that out of the 81,609,016 articles identified with Document Object Identifiers (DoIs), Sci-Hub provided access to 56,246,220 articles–over 68% of all scientific literature.¹¹⁶ Around 85% of paywalled literature, i.e., literature published in toll-access journals, is available on Sci-Hub’s database.¹¹⁷ Sci-Hub provides access to over 97% of articles published in Elsevier’s journals.¹¹⁸

Further, Sci-Hub’s script can download papers on request and fulfil 99% of the download requests made.¹¹⁹ Therefore, it is possible that apart from the 68.4% of articles available on the database, the remaining 31.6% of articles have never been requested.⁸ In 2017, Sci-Hub serviced an average of 458,589 download requests daily.¹²⁰ Reports suggest that the search for “Sci-Hub” on Google has increased more than eight times since 2016.¹²¹

Another notable element of Sci-Hub is how promptly the database archives newly published scholarship. Louis Houle studied the availability of articles published in Nature and Science to analyse the timeframe within which articles published in the two magazines were archived on the Sci-Hub database. For papers published between September 2016 and June 2017, the Houle study reported that, within 24 hours of publication, Sci-Hub archived all the articles published in Science and 99% of those published in Nature. In contrast, Google Scholar archived OA versions of only 9% of articles published in Science and 8% published in Nature.¹²² In ongoing litigation before the Delhi High Court, on December 24, 2020, Sci-Hub was directed not to upload any new articles in which the plaintiffs own copyrights.¹²³ While it is not clear whether Sci-Hub has complied,¹²⁴ the order, if complied with, can potentially dilute the “up to the minute” nature of the database.

Where do Indian scholars and their scholarship fit into this rubric? Sci-Hub provides access to over 91% of Indian scholarship, of which 18.46% of articles were available in some form of OA.¹²⁵ A study published in April 2020 reveals that out of 67,857 Indian publication records from 2016, 61,706 were available in the Sci-Hub database.¹²⁶ Another study from April 2021 examined a 2017 dataset provided by Sci-Hub containing metadata for almost 329 days to determine the download requests made by Indian scholars and researchers. Out of 150,875,861 download requests, 13,144,241 were from India. Sci-Hub serviced an average of 39,952 Indian download requests daily,¹²⁷ making India the third-largest user of the piratic website.¹²⁸

B. Academic Piracy: Civil Disobedience Against Persistent Unfairness

The Sci-Hub database operates in a legal grey area, and many countries continue to block its usage.¹²⁹ Despite such injunctions, many members of the academic community believe that it is not ethically incorrect to download pirated scholarship. When surveyed in 2017 at a United Kingdom Serials Group Conference, barely any delegates had individually blocked Sci-Hub or felt that it should be blocked.¹³⁰ A similar survey with over 11,000 respondents in 2016 revealed that 88% believed that it is not wrong to download pirated papers.¹³¹ Writing for The Guardian, George Monbiot noted, “[A]s a matter of principle, do not pay a penny to read an academic article. The ethical choice is to read the stolen material published by Sci-Hub.”¹³² Some scholars have gone even further to argue that the goals of Sci-Hub are altruistic and point to the implosion of the present-day academic publishing models.¹³³ Dr. John Bohannon sums up this scholarly debate when he says that Sci-Hub is “an awe-inspiring act of altruism or a massive criminal enterprise, depending on whom you ask.”¹³⁴ This Part seeks to explore some normative justifications for the use of Sci-Hub.

Academic publishing is essentially a cooperative arrangement between authors, publishers, and libraries.¹³⁵ Cooperative arrangements are premised on fairness principles, and participating parties should equally bear the benefits and burdens of such an arrangement.¹³⁶ Publishers’ activities—such as forcing libraries into “Big Deal” licensing agreements by clubbing high-impact and low-impact serials,¹³⁷ including non-disclosure agreements that allow price-discrimination¹³⁸—create a perceived lack of fairness in the dealings of academic publishers. Further, the inputs provided by authors, their institutes, and the public (as funders of public research) in creating academic scholarship far outweigh the value additions by academic publishers. Despite what Deutsche Bank referred to as “relatively little” value addition,¹³⁹ publishers and journals extract exorbitant monetary compensation and, in doing so, reduce the circulation of and access to research.¹⁴⁰

Apart from disregarding the cooperative nature of their agreements, the academic publishing industry works on a “double appropriation” basis.⁸ Without compensating the producers of the knowledge, the publishers often claim intellectual property rights on the knowledge produced by researchers. This same knowledge is then sold back to libraries at “massively inflated” prices, so the producers can again employ this knowledge to create further research.¹⁴¹ This and similar practices by academic publishers result in frustration within the academic community, which then perceives Sci-Hub (by extension, academic piracy) as a symptom of an exploitative business model rather than a legal pariah.¹⁴²

Professor Ramon Lobato reimagines the copyright system and identifies six different forms of piracy, one of which is piracy as access.¹⁴³ This unique form of privacy is motivated by accessibility and economic factors and inspires copyright disobedience due to its “capacity to disseminate culture, knowledge, and capital.”¹⁴⁴ Viewing Sci-Hub as a medium of piracy as access allows its normative classification to transcend from a mere violation of copyright law to a necessary form of civil disobedience.

Some scholars,¹⁴⁵ including Elbakyan herself,¹⁴⁶ view Sci-Hub as a medium of protesting against copyright law and civil disobedience. For the sake of the present Paper, “civil disobedience” should be interpreted to mean:

[A] public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government. By acting in this way, one addresses the sense of justice of the majority of the community and declares that in one’s considered opinion the principles of social cooperation among free and equal men are not being respected.¹⁴⁷

The internet, for example, provides an interesting avenue for civil disobedience movements.

Elbakyan views Sci-Hub as a vessel for a global overhaul of the academic publishing industry. Sci-Hub is supposed to underline the unfair business models of academic publishers and ensure that knowledge is within reach of the general population.¹⁴⁸ Such motivations arguably align Elbakyan with the more significant OA movement. However, the advocates of the OA movement have continuously ignored the impact of pirate OA in achieving the goals of their movement.¹⁴⁹ Such ignorance or pre-emptive rejection of pirate OA ignores the ability of the citizens of a democratic society to protest against the perceived unfairness of legal conventions through civil disobedience.¹⁵⁰

Despite there being two roads to OA—the Green Road and the Gold Road—over 70% of academic literature remains paywalled.¹⁵¹ Therefore, when George Monbiot argues that the ethically responsible manner of accessing academic scholarship is through shadow libraries,¹⁵² he is arguing in favour of a conscientious citizen’s moral duty to protest the encumbrances placed by the business model of academic publishing and the relevant legal framework, which deters access to publicly-funded research. Academic piracy can therefore be interpreted as an act of civil disobedience against the perceived unfairness of this transaction, which eventually leads to the monetisation of knowledge.¹⁵³

Given the interesting relationship that Sci-Hub shares with civil disobedience, it is important to understand what is the unjust law that Sci-Hub is revolting against. The next Part of the Paper deals with copyright law and its limitations and exceptions.

III. Copyright Law Exceptions: Navigating Fair Use and Fair Dealing

Modern copyright law and its exceptions work within an elaborate system of regional, bilateral, and international intellectual property treaties. The Berne Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property Rights, and the multitude of treaties negotiated under the aegis of the World Intellectual Property Organisation are some of the most important multilateral obligations responsible for the present iteration of copyright law.¹⁵⁴

Copyright law is an intricate balance between creating an incentive structure for rewarding the author’s labour and encouraging a benefit structure for society through a free flow of information and stimulation of new creations, ideas, and inventions.¹⁵⁵ This bargain has been evident since the enactment of the first statute that regulated the copyright monopoly. Enacted in 1710, the Statute of Anne regulated the book trade in Great Britain. Section IV of the Act provided a “highly elaborate scheme for averting the monopolistic pricing of books.”¹⁵⁶ Justice Sandra Day O’Connor from the United States Supreme Court explained this bargain incorporated in modern copyright law as follows:

The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work . . . . This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.¹⁵⁷

Justice William Rehnquist later adopted this position and added that copyright law “ultimately serves the purpose of enriching the general public through access to creative works.”¹⁵⁸ The statutory monopoly granted by copyright law is “not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations.”¹⁵⁹ There are multiple qualifications to the scope of copyright protection, ranging from a limited monopoly term to a host of limitations and exceptions (L&E). L&Es are essentially carve-outs from the scope of copyright infringement. They allow the use of copyrighted material without the authorisation of the copyright holder.¹⁶⁰ L&Es form an integral part of the copyright law and function on the premise that “creativity requires copying, often generously, and often without payment or permission.”¹⁶¹

In 1945, Professor Zechariah Chafee, Jr. sought to answer: “What is it that the law of copyright is really trying to accomplish?”¹⁶² Answering the question, he identified six ideals, formulated as desirable ends for the law of copyright. Three of these ideals were affirmative and extended the rationale for protecting the works of a copyright owner, while the other three were negative insomuch as they limited the scope of protection.¹⁶³ The fourth ideal postulated that the “protection should not go substantially beyond the purposes of protection.”¹⁶⁴ Professor Chafee identified this ideal as the most important goal of copyright policy. The fifth ideal states that the protection afforded to the author “should not stifle independent creation by others.”¹⁶⁵ The premise of this ideal is that the very law that has been developed to reward an author’s creativity should not suffocate the creativity of others.

However, Professor Chafee’s insistence on the relevance of L&Es is not reflected in the international copyright framework. Given the lack of coherent guidance on the manner and structure of L&Es on a supranational-treaty level, different countries have adopted different forms and approaches to L&Es.¹⁶⁶ The international copyright treaties and negotiations have failed to articulate international standards for L&Es to promote access and dissemination of copyrighted material.¹⁶⁷ While new rights and novel forms of protecting copyright-eligible content dominate treaty obligations, the international copyright framework has failed to balance the growth of copyright protection and L&Es.¹⁶⁸ Most L&Es that form part of the international treaty regime are merely permissive, i.e., they only provide that the member states may enact L&Es.¹⁶⁹ In its present iteration, this state of the international copyright regime contradicts the ideals of the copyright policy as advocated by Professor Chafee.

While there is a considerable difference between the forms of L&Es adopted by different countries, they are developed within either one of two models: Fair Use or Fair Dealing. The next Part explains these two models in detail. Copyright regimes such as India follow the fair dealing approach, establish a list of enumerated exceptions, and regularly update them in line with developments in copyright law.¹⁷⁰ Alternatively, other jurisdictions such as the United States of America follow the fair use approach and do not list any definitive exceptions to copyright infringement. Rather, the courts are called upon to interpret some factors that determine if the defendant’s secondary use is fair.¹⁷¹

A. Fair Use, Fair Dealing, and Public Interest

1. Fair Use Model: The American Experience

The doctrine of fair use represents “breathing space within the confines of copyright.”¹⁷² Fair use reflects a countervailing policy concern that requires limiting the scope of the monopoly provided by copyright legislation. The idea of fair use is expansive and is considered one of the most troublesome concepts of copyright law.¹⁷³ The bargain implicit in the fair use doctrine has been explained as follows: “[a]ny use that is deemed by the law to be ‘fair’ typically creates some social, cultural, or political benefit that outweighs any resulting harm to the copyright owner.”¹⁷⁴

From the genesis of the idea of copyright, some standard of fair use was considered necessary to promote science and useful arts.¹⁷⁵ The concept of fair use first appeared as fair abridgement in English judicial decisions as early as 1740.¹⁷⁶ The doctrine was later appropriated within American copyright jurisprudence by Justice Joseph Story in Folsom v. Marsh, decided in 1841.¹⁷⁷ The case involved the letters of George Washington, which were published in a set entitled The Writings of George Washington. The defendant used selections from the letters to compile a book entitled The Life of Washington, in the Form of an Autobiography. In his decision, Justice Story declared that certain uses of a copyrighted work should be considered fair and not attract any penalty under copyright infringement. While the defendant ultimately incurred liability for copyright infringement, Folsom articulated the possibility of using a copyrighted work fairly without attracting the penalty from copyright infringement.¹⁷⁸

Justice Story enunciated the fair use analysis to include “the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”⁸ This enunciation assumes relevance in modern copyright law, and parallels can be drawn between Justice Story’s opinion and the modern-day iteration of the fair use doctrine. Since 1841, the doctrine of fair use has witnessed overwhelming litigation and has become one of the most important limitations on the scope of copyright protection. In 1990, Judge Leval noted, “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design.”¹⁷⁹

The inclusion of the fair use doctrine in copyright law can be interpreted as an acceptance of the principle that “certain acts of copying are defensible when the public interest in permitting the copying far outweighs the author’s interest in copyright protection.”¹⁸⁰ Amongst many others, user actions found to be protected by fair use include an internet search engine’s display of low resolution versions of copyrighted images for the purpose of directing the viewer to the copyright owner’s original work,¹⁸¹ a television viewer’s creation of a recording of a broadcast television show for viewing at a later time,¹⁸² and a newspaper’s publication of copyrighted photographs in order to inform and entertain readers.¹⁸³

The framework Justice Story articulated in 1841 was codified in Section 107 of the Copyright Act of 1976.¹⁸⁴ Section 107 requires a court to examine any secondary use by a defendant on four pedestals.¹⁸⁵ The results of such exploration are to be weighed together to determine if the secondary use is eligible for protection within the fair use doctrine.¹⁸⁶ These four factors are:

1. “[T]he purpose and character of the [infringing] use”¹⁸⁷: The first factor requires a comprehensive analysis of the infringing use. Determining the purpose of the secondary use requires an analysis of multiple aspects, including the commercial relevance of the secondary use.¹⁸⁸ To adjudge the character of the secondary use, courts consider if the secondary work “supersedes the objects of the original creation.”¹⁸⁹ If the secondary use qualifies as transformative or serves an educational purpose, it is usually persuasive for a finding of fair use.¹⁹⁰

2. “[T]he nature of the copyrighted work”¹⁹¹: Different copyrighted works deserve different levels of protection.¹⁹² For example, public policy dictates that factual works should be widely disseminated when compared to fictional works. Therefore, the secondary use of a factual work would be protected within fair use with relative ease compared to the secondary use of a creative or fictional work.¹⁹³

3. “[T]he portion used in relation to the copyrighted work as a whole”¹⁹⁴: The third factor analyses if the secondary use employs more copyrighted work than is necessary. The analysis is both quantitative and qualitative. The nature and purpose of the secondary use becomes very important when addressing the sufficiency of subsequent use.¹⁹⁵ However, it is essential to mention that “[t]here are no absolute rules regarding how much of a copyrighted work may be copied and still be considered fair use.”¹⁹⁶

4. “[T]he effect of the use upon the potential market for or value of the copyrighted work”¹⁹⁷: The fourth factor considers the market harm caused by the secondary use and whether the unrestricted and widespread secondary use would have a substantial adverse effect on the market for the original work,¹⁹⁸ or “usurps the market of the original work.”¹⁹⁹ The primary analysis in the fourth factor is that the secondary use should not serve as a substitute for the original work.²⁰⁰

In Campbell v. Acuff-Rose, the United States Supreme Court shifted the contours of the doctrine of fair use: the Court held that the four factors have to be treated together, and a court should not provide any preference to any one of the four factors.²⁰¹ Within the distinction between rules and standards—where, unlike rules, standards give vague guidelines to citizens and more discretion to courts—the fair use doctrine is a standard and not a rule.²⁰² When enacting Section 107, Congress intended to retain adequate room for judicial interpretation of the limits of copyright protection and therefore adopted deliberately vague statutory guidelines.²⁰³ No relative weights have been provided to the four factors, and any additional factors that a court deems relevant can be considered.²⁰⁴

2. Fair Dealing Model: The Indian Movement

The fair dealing doctrine developed from English judicial practice in the early 19th century and was first codified in the United Kingdom by the Copyright Act of 1911.²⁰⁵ David Bradshaw traces the doctrine of fair dealing to Cary v. Kearsley, decided in 1802.²⁰⁶ The plaintiff in Cary had published a book after surveying different roads. The defendant copied verbatim passages from the plaintiff’s book. Lord Ellenborough instructed the jury to decide if what had been transmitted in the defendant’s secondary work “was fairly done with a view of compiling a useful book for the benefit of the public . . . or taken colourable, merely with a view to steal the copy-right of the [p]laintiff.”²⁰⁷

While the term “fair dealing” does not appear in the case, “fairly doing,” “fairly adopting” and “using fairly” are repeatedly used in the judgement. Bradshaw acknowledges the fact that the case does not explicitly refer to the term “fair dealing” but argues that it is perhaps “merely a matter of historical fortuity that today the defence concept under discussion [i.e., fair dealing] has not become known as a doctrine of ‘fair do-es’ or ‘fair adoption.’”²⁰⁸ The term “fair dealing” did not appear in an English judicial opinion until the British Parliament codified it in 1911.²⁰⁹

Countries such as the United Kingdom,²¹⁰ Canada,²¹¹ Australia,²¹² and India²¹³ are the primary flagbearers of the fair dealing doctrine. The doctrine denotes certain acts as laid down under the statute, the commission of which do not attract any liability despite being covered within the scope of copyright infringement.²¹⁴ In contrast with the fair use approach, fair dealing is limited to the purposes explicitly listed in the relevant copyright statute. The exception assumes applicability when affirmative answers are returned for two questions: (1) is the use for one of the listed purposes; (2) if yes, is the use fair, considering the fairness factors.⁸ Courts have been very liberal in interpreting the contours of the first question, i.e., the purposes listed in the statutory text.²¹⁵ Therefore, the first hurdle is cleared with relative ease.⁸

The fair dealing doctrine found relevance in Indian colonial copyright law as far back as 1842. In McMillan v. Khan Bahadur Shamsul Ulama Zaka, the Bombay High Court held that the English law on copyright would be applicable in India.²¹⁶ With the passage of the Copyright Act of 1914, the fair dealing doctrine was statutorily introduced into Indian copyright legislation.²¹⁷

Presently, Section 52 of the post-colonial Copyright Act of 1957 shapes India’s exceptions and limitations to copyright infringement as affirmative defences. These defences can be divided into²¹⁸ fair dealing of works,²¹⁹ permitted reproductions,²²⁰ permitted publications,²²¹ permitted performances and recitations,²²² exceptions with respect to sound recordings and cinematograph film,²²³ exceptions for library use,²²⁴ permitted uses of artistic works,²²⁵ reconstruction of works of architecture,²²⁶ permitted uses of computer and computer programmes,²²⁷ permitted broadcasting,²²⁸ permitted uses for persons with disabilities,²²⁹ and permitted importation of goods.²³⁰ For the scope of the present Paper, the most important of these classifications is the “fair dealing of works,” which provides that fair dealing of any work for “private or personal use, including research,” shall not accrue any liability for copyright infringement.²³¹ Before interpreting the scope of this limitation, it is important to understand what constitutes “fair dealing.”

In terms of defining what constitutes fair dealing, a single-judge bench of the Delhi High Court in 2012 held that it is “neither possible nor advisable” to define the precise limits of fair dealing.²³² The adjudication is essentially a question of degree and cannot be the subject of absolute determination.²³³ Further, the latitude of interpretation available in the Indian iteration of the fair dealing doctrine is far more than the limits placed by the United Kingdom’s fair dealing doctrine.²³⁴ Partial credit for such latitude can be given to the Indian courts’ reliance on the four-factor fair use test, as applicable in American jurisprudence.²³⁵

There are two judgements from the Delhi High Court—ICC Development v. New Delhi Television²³⁶ and the Rameshwari Photocopy case²³⁷—which are of primary significance when dealing with the relevance of the four-factor test in a fair dealing assessment within the Copyright Act of 1957. In 2012, ICC Development opined that the court would need to consider length, context and purpose, and commercial impact—closely mirroring the four-factor test enshrined in Section 107 of the American Copyright Act—to determine fair dealing within Section 52(1)(a) of the Indian Copyright Act.²³⁶ Clarifying in 2016, Justice Pradeep Nandrajog, while deciding Rameshwari Photocopy, opined that the four-factor test is essential for the import of Section 52(1)(a) as far as the fair dealing assessment is concerned; however, the rest of the provisions, which enumerate other permitted acts,²³⁸ cannot be held to the strict standard of the four-factor test and are only subject to a general idea of fairness.²³⁹

Over the years, the courts have developed guidelines that explain the general idea of fairness. Some of these guidelines are:

1. If the defendant’s secondary use infringes the copyright in the original work for commercial gains, the defence of fair dealing is not available, even if the secondary use is for research or private study.²⁴⁰ However, the “commercial use of copyrighted work cannot simplicit[e]r make it unfair.”²⁴¹

2. Section 52 of Copyright Act, 1957, does not negatively prescribe what is infringement. The section seeks to promote “private study, criticism or review or reporting of current events.”²⁴²

3. When discerning whether the secondary use constitutes a fair use of copyrighted work, the standard employed should be that of a “fair minded” and “honest person.”²⁴³

4. In some circumstances, the public interest may be so overwhelming that courts would sometimes refrain from injuncting the verbatim use of a copyrighted work to convey a message to the public at large.²⁴⁴

5. Public interest and the interests of the public need not be the same.⁸

6. Multiple factors, including the purpose of creation, the purpose of use, and the intended commercial exploitation are all relevant for the adjudication of fair dealing.²⁴⁵

Given that there are two alternative models of incorporating limitations and exceptions (L&Es) in copyright statutes, the manner and scope in which national statutes incorporate L&Es are very different. While fair dealing is arguably a more restrictive approach where protection is available only when the secondary use is for one of the listed purposes in a copyright statute, fair use provisions incorporate broad considerations that determine the applicability of the exception. However, even the fair use provision explicitly lists some exemplary purposes for which the exception has been designed.²⁴⁶ One such purpose which appears in both fair use and fair dealing provisions is “research.” The following Part seeks to determine parameters for the right to research, its constitutional justifications, and studies it as a copyright law exemption across various domestic copyright legislations.

B. Right to Research: Constitutional Justification and Exception to Copyright Law

Research has been available as an exception to English copyright law since 1956. Section 6 of the U.K. Copyright Act of 1956 exempted fair dealing with a literary, dramatic, or musical work for research and private study from the scope of infringement.²⁴⁷ In 1983, Justice David Herbert Mervyn Davies opined that fair dealing with any copyrighted work for research or private study would not constitute infringement.²⁴⁸ In 2003, the Copyright and Related Rights Regulations limited the research exception of English copyright law to non-commercial purposes.²⁴⁹ In its present iteration, the U.K. Copyright, Designs and Patents Act of 1988 excuses “[f]air dealing with a work for the purposes of research for a non-commercial purpose . . . provided that it is accompanied with sufficient acknowledgement.”²⁵⁰

The High Court of England in 2007 provided some guidelines for differentiating between commercial and non-commercial research. In Controller of Her Majesty’s Stationery Office v. Green Amps Ltd., the defendants gained unlicensed access to a mapping database made available only to universities and public research communities.²⁵¹ The Court ruled that if the defendants’ ultimate use of the research has commercial value, it will lose the protection provided within Section 29 of the Act of 1988, which embodies the U.K. fair dealing doctrine.²⁵²

In short, motivation determines whether research is commercial or not. Given the insistence on the purpose of the research, there can be situations where private research organisations generate non-commercial research while a public university’s research may be considered commercial.²⁵³ Similarly, an academic’s research for publishing a book may be commercial and can lose the protection of the fair dealing doctrine.²⁵⁴

The distinction between commercial and non-commercial research is far from clear. For example, a researcher may eventually publish academic research as a book, but at which point in its lifecycle would such research become commercial? Further, there potentially can be a difference between commercial and for-profit research. Lack of judicial and academic opinion on the issue means that the distinction will largely be decided on a case-by-case basis.²⁵⁵

Other countries have also witnessed litigation for determining the scope of the right to research as a copyright law exception. For example, in CCH Canadian v. Law Society of Upper Canada,²⁵⁶ the Supreme Court of Canada gave a very broad reading to Canadian copyright law’s research and private study exception.²⁵⁷ The Law Society of Canada operated a Great Library in Ontario, which offered a not-for-profit photocopying service to its members. Referring to the service provided by the library, publishers initiated copyright infringement proceedings against the Law Society.

Similar to English copyright law, Canadian law also provides an exemption for research from the scope of copyright infringement.⁸ Interpreting the scope of this exemption, the Canadian Supreme Court admitted that the library’s activities were largely commercial in nature. However, the Court stated, “research for the purpose of advising clients, giving opinions, arguing cases, preparing briefs and factums is nonetheless research.”²⁵⁸ The term “research” was interpreted very liberally to ensure that users’ rights were not “unduly constrained” or “limited to non-commercial or private contexts.”⁸

In Germany, the copyright law provides that up to 15% of a work can be reproduced, distributed, or made available either to “a specifically limited circle of persons for their personal scientific research” or to others to monitor the quality of scientific research.²⁵⁹ Scientific researchers can also reproduce up to 75% of a work for personal scientific research.²⁶⁰ The Delhi High Court explicitly omitted such quantitative restrictions with the Indian fair dealing doctrine. The Court opined that quantitative and qualitative restrictions are of no concern to a fair dealing assessment.²³⁷ German copyright law also permits text and data mining under specific conditions.²⁶¹ This exception was pioneered by Japan in 2009²⁶² and has since been adopted by the United Kingdom,²⁶³ France,²⁶⁴ and the EU. The EU law on the subject is governed by the Directive on Copyright in the Digital Single Market, adopted in 2019. The Directive provides two exceptions: one is unconditional and allows text and data mining for not-for-profit research;²⁶⁵ the second promotes text and data mining for commercial purposes, subject to certain exceptions.²⁶⁶

Turning to Indian law, the Indian Copyright Act creates a categorical exception for research. Any person can escape the incidence of copyright infringement liability during their research or private study if he deals with the copyrighted material fairly.²⁶⁷ Section 52(1)(a)(i) of the Copyright Act of 1957, as amended, presently reads as follows:

52.(1) The following acts shall not constitute an infringement of copyright, namely, (a) a fair dealing with any work, not being a computer programme, for the purposes of (i) private or personal use, including research . . . .²⁶⁸

The present iteration of the provision results from a substantial amendment from the Copyright (Amendment) Act of 2012, which substituted the original term “research or private study” with “private or personal use, including research.”²⁶⁹ The 2012 amendment and the use of the term “including” raise a pertinent question: Is commercial and for-profit research protected within the Indian fair dealing doctrine?

In India, it is an established principle of statutory interpretation that the use of the term “includes” in an interpretation clause extends the scope of the definition.²⁷⁰ Using the term “includes” in statutory language often signifies the legislature’s intent to “enlarge the meaning of the words and phrases occurring in the body of the statute.”²⁷¹ In the case of S.M James, the Patna High Court pointed out that the word “including” is a term of extension and adds to the subject matter already comprised within the definition.²⁷² In 2009, the Supreme Court of India clarified that inclusive definitions are used:

(1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it; (2) to include meaning about which there might be some dispute; (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names.²⁷³

Apart from the established meaning of inclusive definitions, there are constitutional justifications for providing a broad interpretation of Section 52(1)(a)(i). The exception can be interpreted as a statutory recognition of the right to research. Despite the lack of explicit legislative recognition, the right to research arguably has a constitutional basis. The freedom of speech and expression and the right to life and personal liberty, enshrined respectively in Article 19(1)(a) and Article 21 of the Constitution of India, can be interpreted to encompass a right to research.²⁷⁴

In 1966, a full bench of the Delhi High Court expanded the scope of Article 21 to include “a right to acquire useful knowledge,” which, in the opinion of the Court, was “necessary to the orderly pursuit of happiness by free man.”²⁷⁵ The Supreme Court of India in 1980 opined that the ambit of Article 21 includes the provision for facilities of “reading, writing and expressing oneself in diverse forms.”²⁷⁶ Again in 1997, the Supreme Court of India included “social, cultural and intellectual” fulfilments as a part of the right to life.²⁷⁷ Such a broad conception of Article 21 would include knowledge acquisition by scientists, academics, and researchers and could therefore be understood to harbour the constitutional protection of a “right to research.”

This interpretation is consistent with the opinion of Professor John A. Robertson, who argued that a broad conception of the term liberty, as used in the 14th Amendment of the American Constitution, could incorporate a right to research.²⁷⁸ In making the argument, Robertson relied on the United States Supreme Court’s decision in Meyer v. Nebraska where “liberty” was held to include “the right . . . to acquire useful knowledge.”²⁷⁹

Further, in Wiley v. Indian Institute of Management, the Delhi High Court held that the purpose of Section 52 of the Copyright Act of 1957 is to protect the freedom of speech and expression, which is guaranteed by Article 19(1)(a) of the Constitution of India.²⁴² Hence, both the established interpretation of inclusive definitions and the constitutional basis of the right to research require courts to interpret Section 52(1)(a)(i) in its broadest possible enunciation. Therefore, a liberal interpretation of the fair dealing exception can protect both commercial and non-commercial research within the Indian context.

Having identified the guiding principles for the determination of fair dealing in Indian copyright law, the following Part aims to understand the judicial appreciation of these principles. The next Part discusses two judgements where the Delhi High Court recognised the overwhelming needs of higher education and purposively interpreted copyright law.

IV. Rameshwari Photocopy Case and a Normative Reading of Fair Dealing Exceptions

Delhi University had authorised a photocopy shop on the university campus to prepare and distribute course packs. These course packs were designed based on the course curriculum prescribed by the university faculty and contained extracts from the plaintiffs’ copyrighted works. Five publishers initiated copyright infringement proceedings against the university and the photocopy service provider to restrain them from reproducing and distributing the copies of the publishers’ works and selling course packs. The plaintiffs claimed that Delhi University had “institutionalised infringement by prescribing chapters from the publications of the plaintiffs as part of its curriculum / syllabus and permitting photocopy of the said chapters and sale thereof as course packs.”²³⁷ The defendants sought protection under Section 52(1)(i) of the Copyright Act of 1957, which protects the reproduction of a copyrighted work by a teacher or a pupil “in the course of instruction.”⁸

In September 2016, a single-judge bench of the Delhi High Court ruled in favour of the defendants and opined that Section 52(1)(i) protected the defendants’ actions.⁸ Justice Rajiv Sahai Endlaw relied on the structural logic underlying the Copyright Act.²⁸⁴ He held that the permitted uses of a copyrighted work mentioned in Section 52 should not be interpreted as exceptions to the copyright monopoly. Rather, these acts were never a part of the copyright bargain and were never granted to the author of a copyrightable work.²⁸⁵ The legislature has drafted the contents of Section 52 to be outside the scope of infringement. Interpreting this, the Court expanded the ambit of Section 52 from mere limitations and exceptions to users’ rights. Thus, the Court dismissed the petition because no question of copyright infringement arose in the present case.

The plaintiffs appealed against the single judge’s decision before a Division Bench of the Delhi High Court, which delivered its judgement in December of 2016.⁸ The publishers contended that the Court must employ the four-factor test for determining the scope of Section 52(1)(i). Given the last two factors of the four-factor test require the quantum and the impact of the secondary use on the potential market to be taken into account, the plaintiffs’ insistence on transplanting the test into Indian law is self-explanatory. Neither the single judge nor the Division Bench agreed.⁸ The Division Bench held that whenever somebody else utilises a person’s result of labour, “fair use must be read into the statute.”⁸ However, since the legislature, while permitting reproduction during the course of instruction, had not created an express limitation of fair use, only a “general principle of fair use would be required to be read into the clause,” and not the four-factor test.⁸ Thus, the general principle of fairness applied as long as the secondary use was justified for education. The Division Bench explicitly held that no qualitative or quantitative threshold on secondary copying could be read into the statute.⁸

The publisher appellants had argued that the respondents’ manner of using the copyrighted material would adversely affect the appellant’s potential market. The Court replied negatively. The Court asserted that the reproduction of an entire work as part of a literacy programme does not affect the potential market of the publisher as the beneficiaries of the literacy programme are not potential customers, reasoning that students were not potential customers for some forty reference books: if course packs are not available, students would simply use the library. The Court eventually held that “[i]t could well be argued that by producing more citizens with greater literacy and earning potential, in the long run, improved education expands the market for copyrighted materials.”⁸

The Court then turned to the interpretation of the phrase “in the course of instruction” from Section 52(1)(i) of the Copyright Act of 1957.⁸ The appellants had favoured a restrictive interpretation of the phrase; in their opinion, the phrase was limited to direct, face-to-face interaction between the teacher and the student. Interpreting the phrase, the Court opined that using the word “course” meant that the protection covers the entire process of education in a semester. Interpreting the phrase to give an expansive interpretation to the term “instruction” was possibly the most important part of the two judgements. The Division Bench relied on a judgement from the High Court of New Zealand to come to this conclusion.²⁸⁶

When the appellants argued that the photocopy service provider acted as an intermediary, which cannot be protected, the Court opined that the argument concerning the use of an agency was irrelevant. The “core of the activity,” the Division Bench elaborated, was photocopying to impart education. It was irrelevant as to what the arrangement was between the teacher and the pupil.⁸

The Division Bench eventually remanded the issue to the Court of Justice Endlaw for a fact-specific determination of whether (1) the course packs were necessary for instructional use by teachers, and (2) complete photocopies of books found on the photocopy service provider’s premises were permissible.⁸ At this stage, the publishers decided not to prefer an appeal to the Supreme Court and withdrew the suit.²⁸⁷ Three publishers published a joint statement where they acknowledged the importance of the course packs and decided to work with the stakeholders involved to understand and address their needs.²⁸⁸

V. Retain the Normative Reading of Copyright Law: Sci-Hub as Fair Dealing in Indian Copyright Law

In 2017, Professor Lawrence Liang speculated that the pirate OA movement for academic articles would soon be subjected to judicial scrutiny. He believed that if the Rameshwari Photocopy judgements could be appreciated as examples of “how the law can and indeed must respond to the real-world challenges of access to learning materials,” then their precedential relevance would be interesting when piracy of academic literature was adjudged on the pedestal of copyright law.²⁸⁹

In December 2020, three academic publishers—Elsevier, Wiley, and American Chemical Society—appeared before the commercial jurisdiction of the Delhi High Court and sued Elbakyan and Libgen for copyright infringement.²⁹⁰ When the case first came before the Delhi High Court, Justice Rajiv Shakdher directed the defendants not to upload any article, the copyright to which remained with the plaintiffs.⁸ Similar to the Rameshwari Photocopy case, this infuriated a large segment of the academic community. With multiple blog articles²⁹¹ and opinion pieces²⁹² published regularly, the issue became the subject of national academic and editorial comments.

Soon enough, 19 academics and 3 organisations approached the Delhi High Court to intervene in the case. On January 6, 2021, Justice J.R. Midha admitted that the litigation in the case was an “issue of public importance” and allowed the parties to submit their intervention applications.²⁹³ At the time of drafting this Paper (August 2021), the case is sub-judice before the Delhi High Court and detailed arguments remain to be heard from both sides. The Sci-Hub litigation and the Rameshwari Photocopy case bear many similarities. Both cases align with the larger Access to Knowledge movement and further the cause of higher education and academic research. Therefore, the purposive interpretation of copyright law—as was favoured in the Rameshwari Photocopy case—may considerably impact the Sci-Hub litigation.

The publishers’ primary argument is that they hold the exclusive right to reproduce, issue copies for the public, and communicate the concerned work to the public.²⁹⁴ Since the defendants have made the plaintiffs’ copyrighted works available on their website without due authorisation, they are liable for copyright infringement.

Given the structure within which Sci-Hub operates, it would not be difficult for the plaintiffs to establish copyright infringement within the terms of Section 51 of the Copyright Act of 1957. The primary contention in the Sci-Hub case would be the interpretation of Section 52(1)(a) of the Copyright Act of 1957.²⁹⁵ As elaborated in Part III.A.2, for the application of the fair dealing doctrine, a court has to appreciate two questions: (1) is the use for one of the listed purposes; (2) if yes, is the use fair, considering the fairness factors. Both of these questions are discussed in detail below.

A. Does Sci-Hub Support and Facilitate Research?

An important question in this case is to test whether the activities of Sci-Hub facilitate research and, in doing so, fall within the purview of the fair dealing exception.⁸ Section 52(1)(a)(i) of the current Indian copyright law includes:

(a) a fair dealing with any work, not being a computer programme for the purposes of: (i) Private or personal use, including research . . . .

Part III.B of the present Paper has elaborated on the possible import of Section 52(1)(a)(i). This Part of the Paper seeks to investigate which activities would be protected by the use of the phrase “for the purposes of research” and examines if the provision covers the activities of Sci-Hub.

Interpreting Section 52(1)(a)(i), the Court could take a restrictive approach and limit the exception’s applicability to only the person engaged in the research. Such a construction could prove to be fatal for the Sci-Hub litigation. Alternatively, the Court could liberally interpret the provision and extend the protection offered by the exception to third parties, the activities of whom facilitate research.

The decision of the Supreme Court of India in CGT v. P. Gheevarghese²⁹⁶ provides support for a liberal interpretation. In the Gheevarghese case, an income tax assessee claimed an exemption from paying gift tax under Section 5(1)(xiv) of the Indian Gift Tax Act of 1958²⁹⁷ which provides:

5 (1) Gift Tax shall not be charged under this Act in respect of gifts made by any person . . . (xiv) in the course of carrying on a business, profession or vocation, to the extent to which the gift is proved to the satisfaction of the Gift Tax Officer to have been made bona fide for the purpose of such business, profession or vocation.

In determining whether the exemption claimed by the assessee was valid, the Supreme Court had to understand the import of the term “for the purpose of.” In doing so, the Court relied on Webster’s New International Dictionary’s definition: “[I]t is that which one sets before himself as an object to be attained; the end or aim to be kept in view of any plan, measure, exertion or operation.”²⁹⁸ The Court opined that the plan or design for being covered by the relevant provision must have a relationship or connection with the business. In other words, as long as the object of making the gift was related to the business, the protection provided under Section 5(1)(xiv) of the Gift Tax Act of 1958 should be applicable.

If the Supreme Court’s view is applied to the Sci-Hub litigation, use of the phrase “for the purpose of” in Section 52(1)(a)(i) will assume applicability as long as the impugned activity has a relationship with research. As long as the object of secondary use is related to research, the fair dealing provision should assume relevance.

A second argument favouring a liberal interpretation is that Sci-Hub’s activities are in consonance with the fundamental reason fair dealing has been included in copyright law. Copyright law, in itself, is premised on the promotion of creativity. The copyright bargain grants a statutory monopoly limited by various L&Es, which recognise the competing need to ensure that the law of copyright does not stifle the dissemination of information. The L&Es, coupled with a limited copyright term, guarantee “not only a public pool of ideas and information but also a vibrant public domain in expression, from which an individual can draw as well as replenish.”²⁹⁹ Courts can interpret L&Es to balance copyright holders’ exclusive rights with the competing interest of enriching the public domain.⁸

As discussed in Part III.B, “the basic purpose of Section 52 is to protect the freedom of expression under Article 19(1) of the Constitution of India—so that research, private study and criticism or review or reporting of current events could be protected.”³⁰⁰ As far back as 1965, the Jammu and Kashmir High Court highlighted that “under the guise of a copyright the authors cannot ask the court to close all the doors of research and scholarship and all frontiers of human knowledge.”³⁰¹ Courts can use such constitutional- and public-policy-based justifications to liberally and purposively interpret Section 52 and ensure that a purely statutory right (i.e., copyright) does not stifle academic and scientific research.

The Supreme Court and the High Courts have not appreciated a similar argument in a factual matrix comparable to the Sci-Hub case. The only instance where Section 52(1)(a)(i) has been substantively interpreted by an Indian appellate court is the 1996 case of Jiwan Publishing House.³⁰² The plaintiff therein had an exclusive license from the Central Board of Secondary Education to publish and reproduce the past year’s question papers for Class 10th and 12th. The defendants published the question papers for commercial exploitation. When sued for copyright infringement, amongst other defences, the defendants sought refuge under Section 52(1)(a)(i). The Court relied on the commercial aspect of the defendants’ business to hold that “if a publisher publishes a book for commercial exploitation and in doing so infringes a copyright, the defence under Section 52(1)(a)(i) would not be available.”⁸ Justice Ramesh Chandra Lahoti’s judgement in Jiwam Publishing heavily relies on the commercial aspect of the defendants’ business,²⁴³ which, as explained in the next Part, looks to be absent from Sci-Hub’s business model.

B. Fairness of Secondary Use by Sci-Hub

As far as Section 52(1)(a) is concerned, as explained in Part III.A.2, fairness would be determined based on the four-factor test of fair use as incorporated in Section 107 of the American Copyright Act. This Part deals with each of the four factors and examines whether the use of academic literature by Sci-Hub satisfies the fair use scrutiny.

1. The Purpose and Character of the Infringing Use

On multiple occasions, Alexandra Elbakyan has communicated her altruistic motivations behind creating and managing Sci-Hub.³⁰³ In February 2021, an Indian news agency, The Wire, published an interview with Elbakyan where she further underlined her motivations: “Sci-Hub’s view is that science should not be controlled by a few big companies but it should be a dynamic network of learned societies.”³⁰⁴

As understood, Sci-Hub does not intend to build an archive of the world’s scholarly literature. Its primary motivation seems to be removing paywalls and providing free access to scientific literature.⁸ This position is underlined by the fact that, in 2015, Sci-Hub deactivated the archiving of several journals that “exemplify openness.”³⁰⁵ Therefore, it may not be difficult to argue that the purpose of the secondary use by Sci-Hub is facilitating research and democratising the availability of academic scholarship.

The next question that needs to be addressed is whether Sci-Hub’s business model is commercial. Sci-Hub primarily relies on donations and does not profit from the access it provides.⁸ It does not charge its users for accessing research literature. Until 2013, Sci-Hub accepted donations over payment gateways such as PayPal. However, after Elsevier sent a publisher’s notice to PayPal, PayPal deactivated Elbakyan’s account, and Sci-Hub turned to Bitcoin.³⁰⁶ Research suggests that prior to 2018, Sci-Hub received over 1,232 donations totalling 94.494 bitcoins.³⁰⁵ However, Sci-Hub may be accepting donations from unrevealed bitcoin addresses, so the overall value of donations could be much higher than the anticipated value estimated in the previous report.⁸

Irrespective of the donations received by Sci-Hub, it has been widely accepted that Sci-Hub does not generate any profits from its services.³⁰⁷ Therefore, an argument can be made that Sci-Hub’s activities qualify as non-commercial educational use. While it is difficult to argue that Sci-Hub’s secondary use is transformative, judicial precedent nevertheless favours fair use in the case of non-commercial secondary use for educational and informational purposes.³⁰⁸

2. The Nature of the Copyrighted Work

The second factor for assessing fair use does not weigh in as significantly as the other three factors.³⁰⁹ The second fair use factor requires a court to recognise that “some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.”³¹⁰ A court should assess the second factor based on “the originality and creativity of the work and its value to the public.”³¹¹ Examination of this factor becomes difficult as there are no bright-line rules for determining which end of the spectrum is occupied by academic and scholarly literature.³¹²

In the United States, the District Court for the Northern District of Georgia in Cambridge University Press v. Becker attempted to “rulify”³¹³ the fair use analysis. In reference to the second factor, the Court summarily held that certain books copied to create an electronic reserve were informational and factual rather than creative.³¹⁴ This attempt to “rulify” the fair use analysis was obstructed by the Eleventh Circuit Court of Appeals,³¹⁵ which disagreed and opined that without individual examination of the subject books, the Court could not make such a summary judgement.³¹⁶ The Court of Appeals held:

[W]here the excerpts of Plaintiffs’ works contained evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information, or derives from the author’s experiences or opinions, the District Court should have held that the second factor was neutral, or even weighed against fair use in cases of excerpts that were dominated by such material.⁸

The Court of Appeals eventually remanded the case back to the District Court. After individual examination, the District Court opined that the scholarly books and literature only incorporated weak copyright.³¹⁷ A similar judgement can be traced back to 1992, where a court treated scholarly articles as factual, meaning they were further from the core of intended copyright protection, which favoured fair use.³¹⁸

This route of individual examination poses a problem for the Sci-Hub case. If a summary ruling on the nature of Sci-Hub’s database is not possible, an exercise by the Court to determine the nature of each of the 56,246,220 articles¹¹⁶ may not be possible either.

Therefore, it is safe to argue that some bright-line rule shall have to be devised and espoused by the Court for determining the second factor. Such a bright-line rule should rely on judicial precedent, which argues that scholarly literature is more factual than creative, which may favour Sci-Hub in the present case. If such a bright-line approach is not favoured, the Court should declare that the factor is neutral, in which case the factor would not favour either party in the fair use analysis.

3. The Portion Used in Relation to the Copyrighted Work as a Whole

There is no denying that Sci-Hub, for its secondary use, has appropriated the entirety of the publishers’ copyrighted material. However, such copying does not inevitably invite a copyright penalty.³¹⁹ Two American judicial controversies substantiate this position, both originating from a similar set of facts.³²⁰

The first controversy relates to the HathiTrust Digital Library. In 2004, a group of universities allowed Google to create digital copies of copyrighted books available in their libraries for public use. The universities came together to create HathiTrust, and the digital library was known as the HathiTrust Digital Library. The Trust permitted three uses of the copyrighted work: (1) full-text searchability of books, (2) access for people with certified print disabilities, and (3) preservation. When the Authors Guild sued the Trust, the District Court for the Southern District of New York and the Court of Appeals for the Second Circuit returned a finding of fair use.³²¹

Authors Guild v. Google, Inc., the second controversy, involved the same secondary use, i.e., creating a digital library. After delivering digital copies to partner libraries, Google created an electronic database, which allowed readers to view full texts of publicly available books and view snippets of copyrighted books. The database also allowed search functionality in the books. When sued by the plaintiffs, the District Court of the Southern District of New York and the Court of Appeals for the Second Circuit returned a finding of fair use favouring Google.³²² In April 2016, the Supreme Court of the United States denied certiorari.³²³

In both HathiTrust and Google, the hierarchy of judicial opinion discussed the public importance of the defendants’ secondary use.³²⁴ In both of the controversies, the courts returned a favourable finding of fair use despite a complete appropriation of copyrighted material.

The Authors of this Paper admit that the secondary uses in the two controversies were substantially different from the use of copyrighted material by Sci-Hub. However, what is important is that, when public interest dictates, a complete appropriation of the copyrighted material cannot be the singular yardstick to determine a fair use analysis. Therefore, if interpreted liberally, this factor may continue to remain neutral.

4. The Effect of the Use upon the Potential Market for or Value of the Copyrighted Work

Nimmer on Copyright argues that the analysis under the fourth factor essentially balances “the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.”³²⁵ Public benefit compensates for the adverse monetary effect of a secondary use on a plaintiff’s copyrighted material. In this analysis, the court should not be concerned with the impact of a defendant’s work who has only copied the non-copyrightable factual material from the plaintiff’s work.³²⁶

Both Justice Endlaw and the Division Bench of the Delhi High Court dealt with the implications of photocopying the plaintiff’s copyrighted works on the potential market. Justice Endlaw argued that if photocopy services were not available, students would have to spend long hours in the library and make notes from the prescribed readings. He argued that “the students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiffs.”²³⁷ The Division Bench observed that a student could not be a potential customer for the reference books or the suggested readings for a semester. For reference, a student would visit the library that houses the books rather than buying the books.⁸

In academic publishing, it is no secret that the primary consumers are academic libraries.⁵ The business for academic journals is not predicated on sales to individual researchers.³²⁷ A report published in 2018 concluded that personal subscriptions account for less than 3% of journal publishing revenues.⁸

The price of individual journal articles further supports this hypothesis. For example, in preparing the present Paper, the Authors used 176 journal articles and book chapters. Relying on statistics, 20% of the articles were available via OA.³²⁸ Placing the price of each journal article/book chapter at a conservative $30, the Authors would have spent approximately $4,230 in preparing this research, which would translate to ₹313,492. Despite being backed by a well-funded management university, the Authors cannot imagine having borne this price from their research grant. In simpler terms, this Paper would not have been possible without the support of the university’s library, which provided access to most of the cited and referenced literature, either through subscription or via inter-library loans.

Having concluded the fair dealing analysis, the position stands thus:

Conclusion

Academic publishing is in flux. With the growth of the OA movement, the academic publishing marketplace is abounding with business models, each with its own merits and demerits. Unfortunately, initially seen as a potential solution to the serials crisis, the progress of the OA movement has remained underwhelming over the past two decades. With the cost of subscriptions far outpacing the growth of library budgets, the serials crisis can further suffocate libraries and academics in the coming decades.³²⁹

Against this background, the growth of academic pirates has left academic publishers mourning over lost profits. On the other hand, libraries have lost patrons who now rely on pirated literature to find access to relevant scholarship. One may concede that academic pirates, including Sci-Hub, may not be the answer to the problems faced by the academic publishing market. While Sci-Hub may help the access problem, academic publishers’ restrictive and closed licensing terms discourage research endeavours such as legal machine reading or text and data mining, which limit the secondary use of research and scholarship.³³⁰

Apart from licensing issues, Sci-Hub does not bring a cultural change in the academic community. Career trajectories of academics will continue to be dominated by metrics such as impact factors or H-Indexes. They will continue to willingly forego their intellectual property in research articles to for-profit publishers and perform editorial and peer-review-related tasks without compensation. The publishers will monetize this free labour in the interest of their shareholders. What if the publishers find a solution to academic piracy? The academic community will continue to be plagued by its problems, and the access problem will endure.

Further, the legality of the Sci-Hub database remains highly contested across jurisdictions. The fair dealing doctrine may protect the database from copyright infringement liability. However, the arguments made in Part V of this Paper are admittedly very optimistic. Most of the judicial opinions relied upon in Part V do not share a factual similarity with the Sci-Hub litigation. A court could easily distinguish these judgements and discredit their precedential applicability. Apart from copyright law, many other legal challenges plague the database. For example, various reports of data phishing by and on behalf of Sci-Hub have come to light,³³¹ which is why the City of London Police’s Intellectual Property Crime Unit has warned students against using the database.³³²

Given all of these reservations, it is important to underline what Sci-Hub represents. The widespread user base that the pirate website has amassed emphasises two crucial aspects: the academic publishing market’s implosion and the serials crisis’s omnipresence.

As for finding a solution for the issue, the Authors highlight three approaches amongst the many solutions discussed in scholarly literature. First, researchers can spread awareness about Green OA and learn how to leverage the Green OA literature already archived over the internet. There are tools available as websites and browser extensions that use Open DoI to identify Green OA versions of the required research articles. Some examples are Unpaywall, Open Access Button, Kopernio, and LazyScholar.³³³ Academic social networks, such as SSRN or ResearchGate, should also be explored for their contribution to the OA movement.

Second, the publishing industry and its revenue stream need to be radically changed. Scholars have taken different positions on how to achieve this. In 2019, Toby Green argued for a two-step publishing process, where authors would first use a preprint repository to test if an article is worthy of being formally published in OA journals. This could reduce the overall number of publications and thus reduce the costs of academic publishing. Further, it would require that researchers and scholars “self-promote” their articles to ensure publication, resulting in wider dissemination of research.³³⁴ Professor Jeff Pooley argues that libraries should take their rightful place in the academic publishing business and redirect their subscription costs to develop a “collectively funded publishing ecosystem.” This would include library partnerships and in-house-library publishing units. Pooley also discusses some journals and libraries which have subscribed to this model as proof of concept.³³⁵ Advertising can be another avenue to flourish publishers’ revenue streams. Furthermore, articles can be archived over the internet, where access can be provided without payment. A threshold can be placed where only a limited number of articles can be downloaded per user per day.

Third, the serials crisis can be solved by legislative intervention. Multiple scholars have suggested models, which redefine copyright law to accommodate the unique interests of scholarly research and academic publishing. Professor Steven Shavell published a paper in 2010 where he argued for the elimination of copyright for academic works.³³⁶ While radical, Professor Shavell’s model has been widely discussed and critiqued.³³⁷ Professor Wadim Stielkowski argues that a subscription model similar to Apple Music, Spotify, or Netflix should be developed: individual authors would buy access to a publisher’s database and pay a small monthly or annual subscription fee. Professor Stielkowski relies on the fact that such subscription models have bulldozed the rampant music piracy from the early 2010s.³³⁸

Another issue with academic publishing is the “Ingelfinger Rule,” which provides that a journal “reject a paper if it had been published elsewhere, in whole or substance.”³³⁹ This precludes authors from making their articles available through Green OA.³⁴⁰ To counter this rule, an inalienable secondary publication right should limit copyright protection in academic works.³⁴¹ This would allow authors to archive their research at any stage despite their contractual obligations towards the publisher.³⁴² Germany can be understood as the proof of concept for such a law, as they enacted an inalienable right of secondary publication on June 27, 2013.⁸ The law provides any researcher with an inalienable right to make her research available to the public one year after the primary publication.³⁴³

While all of these models have merit, no single option can alleviate the serials crisis. The academic publishing industry needs to look at Sci-Hub’s download corpus as a sign that their business model is outdated and needs to develop an alternative approach. At the same time, the international copyright regime needs to respond to the serials crisis and negotiate some limitations on the copyright monopoly, ensuring that the commodification of knowledge cannot extract very high profit margins. Before these models become viable and can be scaled across the entire industry, the Green OA movement needs to gain traction. Researchers and academics need to be made aware of the serials crisis and the Green OA Road. Funding organisations should also develop mandates promoting Green OA.

1. Brian Resnick and Julia Belluz, The War to Free Science, Vox (July 10, 2019, 3:58 PM), https://www.vox.com/the-highlight/2019/6/3/18271538/open-access-elsevier-california-sci-hub-academic-paywalls.
2. See generally Jonathan P. Tennant, Time to Stop the Exploitation of Free Academic Labour, 46 Eur. Sci. Editing 1, 1 (2020); John Willinsky, The Access Principle: The Case for Open Access to Research and Scholarship 49 (MIT Press 2006); Armin Beverungen, Steffen Böhm & Christopher Land, The Poverty of Journal Publishing, 19 Org. 929, 932 (2012).
3. Rob Johnson, Anthony Watkinson & Michael Mabe, The STM Report: An Overview of Scientific and Scholarly Journal Publishing 5 (5th ed. 2018).
4. Vincent Larivière, Stefanie Haustein & Philippe Mongeon, The Oligopoly of Academic Publishers in the Digital Era, 10 Plos One 1, 11-12; see also Carl Shapiro & Hal R. Varian, Information Rules: A Strategic Guide to the Network Economy 22 (Harv. Bus. Sch. Press 1999).
5. Larivière et al., supra note 4, at 11.
6. Sci. & Tech. Comm., Scientific Publications, Report, 2003-4, HC 399-1, at ¶ 69 (UK); see also Stephen Bosch & Kittie Henderson, Predicting the Future in 3,000 Words and Charts: The Library Journal Series Pricing Article, 74 Serials Librarian 224 (2018) (discussing pricing trends and issues in the serials industry and academic libraries, as examined in annual serials pricing studies).
7. Larivière et al., supra note 4.
8. Id.
9. Id. at 10.
10. Sergio Copiello, Business as Usual with Article Processing Charges in the Transition Towards OA Publishing: A Case Study Based on Elsevier, 8 Publ’ns 3, 7 (2020).
11. Larivière et al., supra note 4, at 10.
12. Kyle Siler, Future Challenges and Opportunities in Academic Publishing, 42 Can. J. Socio. 83, 85 (2017).
13. Copiello, supra note 10, at 7, 9; see also Mark W. Neff, How Academic Science Gave Its Soul to the Publishing Industry, 36 Issues Sci. & Tech. 35, 40 (2020) (stating for 2017, profit margins were 36.8%).
14. Claudio Aspesi & Nicole Allen et al., SPARC* Lanscape Analysis: The Changing Academic Publishing Industry – Implications for Academic Institutions 21 (2019), http://digitalcommons.unl.edu/scholcom/99.
15. Over the last few decades, scholarly journals have increased prices while library budgets have more or less stagnated. Libraries therefore face difficulties in providing access to academic literature. This situation is known as the serials crisis. See What Is Serials Crisis, IGI Global, https://www.igi-global.com/dictionary/serials-crisis/26545 (last visited July 3, 2022).
16. David J. Brown, Access to Scientific Research: Challenges Facing Communications in STM 84 (Walter de Gruyter 2015).
17. Kenneth R. de Camargo, Big Publishing and the Economics of Competition, 104 Am. J. Pub. Health 8, 9 (2014); Beverungen et al., supra note 2, at 931-32.
18. Academic Publishers Make Murdoch Look like a Socialist, Guardian (Aug. 29, 2011), https://www.theguardian.com/commentisfree/2011/aug/29/academic-publishers-murdoch-socialist.
19. Aileen Fyfe, Journals, Learned Societies and Money: Philosophical Transactions, ca. 1750-1900, 69 Notes & Records 277, 291-92 (2015).
20. Jonathan P. Tennant et al., The Academic, Economic and Societal Impacts of Open Access: An Evidence-Based Review, 5 F1000Research, Sep. 21, 2016, at 1.
21. Id. at 4.
22. Toby Green, We’ve Failed: Pirate Black Open Access Is Trumping Green and Gold and We Must Change Our Approach, 30 Learned Publ’g 325, 326 (2017).
23. Johnson et al., supra note 3, at 135-39.
24. Admittedly, there are studies that suggest that the overall availability of OA is higher than 30%. For reference, see Madian Khabsa & C. Lee Giles, The Number of Scholarly Documents on the Public Web, 9 Plos One e93949 (2014); Alberto Martín-Martín, Rodrigo Costas, Thed van Leeuwen & Emilio Delgado López-Cózar, Evidence of Open Access of Scientific Publications in Google Scholar: A Large-Scale Analysis, Informetrics 819 (2018). However, after considering many of these reports, Johnson et al. identified that a “balanced assessment is that roughly one third of the scholarly literature was available OA in 2016.” Johnson Et Al., supra note 3, at 135-39.
25. Sarah Jurchen, Open Access and the Serials Crisis: The Role of Academic Libraries, 37 Tech. Serv. Q. 160, 164; Michael Jubb et al., Rsch. Info. Network (RIN), Monitoring the Transition to Open Access 29 (2017), https://www.elsevier.com/__data/assets/pdf_file/0011/547958/UUK_Report_2018_Final_Digital.pdf.
27. Green, supra note 23, at 326; see also John Willinsky & Matthew Rusk, If Research Libraries and Funders Finance Open Access: Moving Beyond Subscriptions and APCs, 80 Coll. & Rsrch. Librs. 340, 341 (2019); Julie MacLeavy, Richard Harris & Ron Johnston, The Unintended Consequences of Open Access Publishing – And Possible Futures, 112 Geoforum 9, 10-11 (2020).

    The lack of an overarching change in academic publishing and the inherent problems with OA publishing models have led to the rise of a new form of OA: Black OA/ Pirate OA. Motivated by maximising access, pirate websites have amassed a significant user base.²⁶ Bastian Greshake, Looking into Pandora’s Box: The Content of Sci-Hub and Its Usage, 6 F1000Research 541 (2017).

28. Daniel S. Himmelstein, Ariel Rodriguez Romero, Jacob G. Levernier, Thomas Anthony Murno, Stephen Reid McLaughlin, Bastian Greshake Tzovaras & Casey S. Greene, Sci-Hub Provides Access to Nearly All Scholarly Literature, 7eLife 1, 4 (2018), https://doi.org/10.7554/eLife.32822.001.
29. Id.; Johnson et al., supra note 3.
30. Peter Suber, Open Access 4 (MIT Press 2012).
31. Willinsky, supra note 2, at 30.
32. Elizabeth Gadd & Denise Troll Covey, What Does “Green” Open Access Mean? Tracking Twelve Years of Changes to Journal Publisher Self-Archiving Policies, 51 J. Librarianship & Info. Sci. 106, 107 (2019).
33. Id.; see also Stevan Harnad, Tim Brody, François Vallières, Les Carr, Steve Hitchcock, Yves Gingras, Charles Oppenheim, Heinrich Stamerjohanns & Eberhard R. Hilf, The Access/Impact Problem and the Green and Gold Roads to Open Access, 30 Serials Rev. 310 (2004).
34. Jurchen, supra note 26, at 161.
35. Bosch & Henderson, supra note 6, at 226.
36. Rachel Pells, Top Universities’ Journal Subscriptions “Average £4 Million,” Times Higher Educ. (June 12, 2018), https://www.timeshighereducation.com/news/top-universities-journal-subscriptions-average-4-million-pounds.
37. Stuart Lawson, Journal Subscription Expenditure in the UK 2017-2019, Zenodo (May 15, 2020), 10.5281/zenodo.3828461.
38. Harnad et al., supra note 34, at 314 (“Other researchers must find the findings useful, as proved by their actually using and citing them. And to be able to use and cite them, they must first be able to access them. That is the research article access/impact problem.”).
39. Tennant, supra note 2, at 3.
40. Aileen Fyfe, Publishing the Philosophical Transactions: The Social, Cultural and Economic History of a Learned Journal, 4 Impact 33, 35 (2018).
41. Joe Miller, Why Open Access to Scholarship Matters, 10 Lewis & Clark L. Rev. 733, 734 (2006).
42. Paul Ginsparg, ArXiv at 20, 476 Serials Rev. 145, 146 (2011).
43. Amy E.C. Koehler, Some Thoughts on the Meaning of Open Access for University Library Technical Services, 32 Serials Rev. 17, 18-19 (2006).
44. John Beatty, Revisiting the Open Access Citation Advantage for Legal Scholarship, 111 L. Libr. J. 573, 578-80 (2019).
45. Saimah Bashir, Sumeer Gul, Shazia Bashir, Nahida Tun Nisa & Shabir Ahmad Ganaie, Evolution of Institutional Repositories: Managing Institutional Research Output to Remove the Gap of Academic Elitism, J. Librarianship & Info. Sci. 1, 3-4 (2021).
46. Suber, supra note 31, at 19 (quoting Budapest Open Access Initiative, Budapest Open Access Initiative (Feb. 14, 2002), https://www.budapestopenaccessinitiative.org/read/).
47. Tennant, supra note 2, at 603. Some literature further subcategorizes these open access modes. See Heather Piwowar, Jason Priem, Vincent Larivière, Juan Pablo Alerpin, Lisa Matthias, Bree Norlander, Ashley Farley, Jevin West & Stefanie Haustein, The State of OA: A Large-Scale Analysis of the Prevalence and Impact of Open Access Articles, PeerJFeb. 2018, at 6, https://dx.doi.org/10.7717/peerj.4375.
48. Mikael Laakso, Patrik Welling, Helena Bukvova, Linus Nyman, Bo-Christer Björk & Turid Hedlund, The Development of Open Access Journal Publishing from 1993 to 2009, 6 PLOS One 1, 2 (2011), https://dx.doi.org/10.1371/journal.pone.0020961.
49. Changes in Scientific Publishing: A Heuristic for Analysis 27 (Peter Weingart & Niels C. Taubert eds., African Minds 2017).
50. Jean-Claude Guédon, The “Green” and “Gold” Roads to Open Access: The Case for Mixing and Matching, 30 Serials Rev. 315, 315-16 (2004).
51. Walt Crawford, Open Access: What you Need to Know Now 18 (Am. Libr. Ass’n 2011).
52. Marc Scheufen, Copyright versus Open Access: On the Organisation and International Political Economy of Access to Scientific Knowledge 66, 67 (Springer 2015).
53. Guédon, supra note 52, at 315-17.
54. Id. at 315.
55. Li Zhang & Erin M. Watson, Measuring the Impact of Gold and Green Open Access, 43 J. Acad. Librarianship 337, 339 (2017).
56. See A. Townsend Peterson et al., Open Access Solutions for Biodiversity Journals: Do Not Replace One Problem with Another, 25 Diversity & Distribs. 5, 7 (2019).
57. Scheufen, supra note 54, at 67; see also Steffen Bernius, Matthias Hanauske, Wolfgang König & Berndt Dugall, Open Access Models and Their Implications for the Players on the Scientific Publishing Market, 39 Econ. Analysis & Pol’y 103, 106 (2009) (discussing whether hybrid OA journals should be considered part of the Gold OA movement since they only conditionally fulfil the OA mandate).
58. MacLeavy et al., supra note 27, at 10 (noting that academic publishers’ profits are guaranteed “unless the charges they levy on authors can be regulated”).
59. Jurchen, supra note 28, at 162.
60. Órla O’Donovan, What Is To Be Done About the Enclosures of the Academic Publishing Oligopoly?, 54 Cmty. Dev. J. 363, 364 (2019); MacLeavy et al., supra note 27, at 10.
61. The number of OA journals has skyrocketed in the recent past. The Directory of Open Access Journals has increased its list from around 33 journals in 2002 to 9,900 journals in 2014 to over 16,500 journals in July 2021. See Scheufen, supra note 54, at 74-79.
62. MacLeavy et al., supra note 27, at 11.
63. Holly Else, Nature Journals Reveal Terms of Open-Access Option, 588 Nature 19, 19 (2020).
64. Bernhard Mittermaier, Double Dipping in Hybrid Open Access – Chimera or Reality?, ScienceOpen Rschsch., May 25, 2015, at 10, https://dx.doi.org/10.14293/S2199-1006.1.SOR-SOCSCI.AOWNTU.v1. After considering the policies of over 24 publishers, Mittermaier concludes that “there is apparently no publisher who never double dips. The spectrum ranges from 100% double dipping to very general statements that cannot be verified on price setting and partial price reductions . . . right up to a case with supposed 0% double dipping . . . .” Id.
65. O’Donovan, supra note 63.
66. Michael Levine-Clark, Open Access and Its Impact on Access and Subscriptions, 28 Info. Servs. & Use 41, 43 (2018), https://dx.doi.org/10.3233/ISU-180008.
67. Martin Weller, The Battle for Open: How Openness Won and Why It Doesn’t Feel Like Victory 57-59 (2014).
68. MacLeavy et al., supra note 27, at 10.
69. See Weller, supra note 70, at 57-59 (“Ironically, openness may lead to elitism. If an author needs to pay to publish, then, particularly in times of austerity, it becomes something of a luxury. New researchers or smaller universities won’t have these funds available.”).
70. Peterson et al., supra note 58, at 7; Beverungen et al., supra note 2, at 933; Siler, supra note 12, at 87-89.
71. See Humberto Debat & Dominique Babini, Plan S in Latin America: A Precautionary Note, 11 Scholarly & Rsch. Commc’n 1, 3-4 (2020).
72. Bo-Christer Björk, Mikael Laakso & Patrik Welling, Anatomy of Green Open Access, 65 J. Ass’n Info. Sci. & Tech. 237, 237 (2014).
73. Guédon, supra note 52, at 315-16.
74. Beatty, supra note 46, at 580.
75. Laakso et al., supra note 50, at 2.
76. John Houghton & Alma Swan, Planting the Green Seeds for a Golden Harvest: Comments and Clarifications on “Going for Gold,” 19 D-Lib Mag. (2013).
77. Guédon, supra note 52, at 316.
78. Willinsky, supra note 2, at 48.
79. Björk et al., supra note 75, at 240-41.
80. Id. at 239.
81. SSRN, https://www.ssrn.com/index.cfm/en/ (last visited July 5, 2022).
82. OpenDOAR, https://www.jisc.ac.uk/opendoar (last visited July 5, 2022).
83. Gadd & Covey, supra note 33, at 107.
84. OpenDOAR Statistics, OpenDOAR, https://v2.sherpa.ac.uk/view/repository_visualisations/1.html (last visited July 5, 2022).
85. arXiv Monthly Submissions, Cornell U.,https://arxiv.org/stats/monthly_submissions (last visited July 5, 2022); arXiv Monthly Downloads, Cornell U., https://arxiv.org/stats/monthly_downloads (last visited July 5, 2022).
86. Johnson et al., supra note 3, at 135-39; see also Piwowar et al., supra note 49, at 10.
87. Vivek Kumar Singh, Rajesh Piryani & Satya Swarup Srichandan, The Case of Significant Variations in Gold–Green and Black Open Access: Evidence from Indian Research Output, 124 Scientometrics 515, 517 (2020).
88. R. Ramachandran, Public Access to Indian Geographical Data, 79 Current Sci. 450, 450 (2000).
89. Francis Jayakanth, Filbert Minj, Usha Silva & Sandhya Jagirdar, EPrints@IISc: India’s First and Fastest Growing Institutional Repository, 24 OCLC Sys. & Servs. 59, 62 (2008).
90. CSIR Open Access Mandate, http://www.csircentral.net/mandate.pdf (last visited Apr. 18, 2022); see also B.S. Shivaram & B.S. Biradar, Grey Literature Archiving Pattern in Open Access (OA) Repositories with Special Emphasis on Indian OA Repositories, 37 Elec. Libr. 95, 96 (2019).
91. Dept’t Biotechnology & Dep’t Sci. & Tech., Ministry Sci. & Tech., Gov’t India, DBT and DST Open Access Policy (2014), http://dst.gov.in/sites/default/files/APPROVED%20OPEN%20ACCESS%20POLICY-DBT&DST(12.12.2014)_1.pdf.
92. Anup Kumar Das, Delhi Declaration on Open Access 2018: An Overview, 65 Annals Libr. & Info. Studs. 83, 83-84 (2018).
93. Anubha Sinha, Research Publishing: Is “One Nation, One Subscription” Pragmatic Reform for India?, Wire Sci. (Oct. 23, 2020), https://science.thewire.in/the-sciences/india-research-publishing-open-access-one-nation-one-subscription-k-vijayraghavan/.
94. See Dep’t Sci. & Tech., Ministry Sci. & Tech., Gov’t India, Draft: Science, Technology, and Innovation Policy (2020), https://dst.gov.in/sites/default/files/STIP_Doc_1.4_Dec2020.pdf.
95. For details about Plan S, see Debat & Babini, supra note 74.
96. See Aniruddha Malpani, The Robin Hood Dilemma: Is It Ethical to Use “Unethical” Means to Achieve Something Good?, 5 Indian J. Med. Ethics 170, 171 (2020); see also Dasapta Erwin Irawan, Juneman Abraham, Rizqy Amelia Zein & Sridhar Gutam, India’s Plan to Pay Journal Subscription Fees for All Its Citizen May End Up Making Science Harder to Access, Conversation (Nov. 2, 2020), https://theconversation.com/indias-plan-to-pay-journal-subscription-fees-for-all-its-citizen-may-end-up-making-science-harder-to-access-147444.
97. Martín-Martín et al., supra note 25, at 830; Singh et al., supra note 91, at 522-23.
98. Singh et al., supra note 91, at 522-23.
99. Id. at 523-24.
100. Balázs Bodó, Dániel Antal & Zoltán Puha, Can Scholarly Pirate Libraries Bridge the Knowledge Access Gap? An Empirical Study on the Structural Conditions of Book Piracy in Global and European Academia, 15 PLOS One 1, 2 (2020).
101. The use of the term “Black OA” is not a comment on the possible legality of Sci-Hub and associated shadow libraries. Bo-Christer Björk, Gold, Green, and Black Open Access, 30 Learned Publ’g 173, 173 (2017). Björk uses the colour black to refer to pirated academic literature, as the colour has an affinity to the classical pirate flag. He does not use the term “Grey OA,” as it already has an established meaning in the context of scholarly publishing covering theses, government reports, etc.
102. See Balázs Bodó, The Genesis of Library Genesis: The Birth of a Global Scholarly Shadow Library, in Shadow Libraries: Access to Knowledge in Global Higher Education 25, 26 (Joe Karaganis ed., 2018).
103. Bodó et al., supra note 105, at 26-27.
104. See id., at 3; see also Stephen Witt, ‘The Idealist: Aaron Swartz and the Rise of Free Culture on the Internet,’ by Justin Peters, N.Y. Times (Jan. 8, 2016), https://www.nytimes.com/2016/01/10/books/review/the-idealist-aaron-swartz-and-the-rise-of-free-culture-on-the-internet-by-justin-peters.html.
105. Albert N. Greco, The Kirtsaeng and SCI-HUB Cases: The Major U.S. Copyright Cases in the Twenty-First Century, 33 Publ’g Rsch. Q. 238, 243 (2017).
106. Andrea Widener, ACS Prevails over Sci-Hub in Copyright Suit, 95 Chem. & Eng’g News 16, 16 (2017).
107. Vivek Kumar Singh, Satya Swarup Srichandan & Suji Bhattacharya, Is Sci-Hub Increasing Visibility of Indian Research Papers? An Analytical Evaluation, 10 J. Scientometric Rsch. 130, 130 (2021).
108. Id. at 130-31; see also Off. U.S. Trade Representative, 2019 Review of Notorious Markets for Counterfeiting and Privacy 27 (2019).
109. Widener, supra note 111, at 16.
110. Himmelstein et al, supra note 29, at 2.
111. See John Bohannon, The Frustrated Science Student Behind Sci-Hub, 352 Sci. 511 (2016).
112. Julia Belluz, Meet Alexandra Elbakyan, the Researcher Who’s Breaking the Law to Make Science Free for All, Vox (Feb. 18, 2016 11:00 AM), https://www.vox.com/2016/2/18/11047052/alexandra-elbakyan-interview.
113. Richard Van Noorden, Nature’s 10, 540 Nature 507, 512 (2016).
114. T. Scott Plutchak, Epistemology – Three Ways of Talking About Sci-Hub, 31 Against Grain 60, 61 (2021).
115. Himmelstein et al., supra note 29, at 4; Frederik Sagemüller, Luise Meißner & Oliver Mußhoff, Where Can the Crow Make Friends? Sci-Hub’s Activities in the Library of Development Studies and Its Implications for the Field, 52 Dev. & Change 670, 671 (2021).
116. Himmelstein et al., supra note 29, at 4.
117. Id. at 1; Off. U.S. Trade Representative, supra note 113, at 27.
118. Himmelstein et al., supra note 29, at 5.
119. Lindsay McKenzie, Sci-Hub’s Cache of Pirated Papers Is so Big, Subscription Journals Are Doomed, Data Analyst Suggests, ScienceInsider (July 27, 2017), https://www.science.org/content/article/sci-hub-s-cache-pirated-papers-so-big-subscription-journals-are-doomed-data-analyst.
120. Himmelstein et al., supra note 29, at 13.
121. Emad Behboudi, Amrollah Shamsi & Gema Bueno de la Fuente, The Black Crow of Science and Its Impact: Analyzing Sci-Hub Use with Google Trends, Libr. Hi Tech, Feb. 16, 2021 (analysing the Google search rate of internet users of Sci-Hub in ten countries, including India, over four years using Google Trends).
122. Louis Houle, Sci-Hub and LibGen: What If…Why Not?, IFLA SOCRS Satellite Meeting, Aug. 16-17, 2017, at 11-12, http://ifla-test.eprints-hosting.org/id/eprint/1892/.
123. Elsevier Ltd. v. Elbakyan, CS(COMM) 572/2020, decided on Dec. 24, 2020 (India). Elbakyan’s counsel stated that no new articles would be uploaded to the Sci-Hub database. The Court took the counsel’s statement on record.
124. Elsevier Ltd. v. Elbakyan, CS(COMM) 572/2020, decided on Sept. 15, 2021 (India). Sci-Hub uploaded 24 million new articles on September 5, 2021. The plaintiffs initiated contempt proceedings against Sci-Hub for having violated the undertaking filed before the Court. Sci-Hub argued that the undertaking had expired on March 8, 2021, after which point it had not been extended further.
125. Vivek Kumar Singh, Satya Swarup Srichandan & Sujit Bhattacharya, What Do Indian Researchers Download from Sci-Hub? An Analytical Introspection, 10 J. Scientometric Rsch259, 263 (2021).
126. Singh et al., supra note 91, at 524.
127. Singh et al., supra note 130, at 260.
128. Id. at 262.
129. Elsevier Inc. v. Sci-Hub, No. 15-CV-4282 (RWS), 2017 U.S. Dist. LEXIS 147462, at *3-4 (S.D.N.Y. June 21, 2017) (awarding a permanent injunction and damages against Sci-Hub); Quirin Schiermeier, US Court Grants Elsevier Millions in Damages from Sci-Hub, Nature, June 22, 2017; The Wire Staff, Elsevier Forces ISP to Block Access to Sci-Hub, ISP Blocks Elsevier As Well, Wire, Nov. 5, 2018, https://science.thewire.in/the-sciences/elsevier-forces-isp-to-block-access-to-sci-hub-isp-blocks-elsevier-as-well/ (discussing Elsevier’s victorious lawsuit against Swedish ISPs); Scientific Publishing Houses Win Copyright Case Against ISPs, Hoyng Rokh Monegier (Nov. 13, 2019), https://www.hoyngrokhmonegier.com/news-insights/scientific-publishing-houses-win-copyright-case-against-isps (reporting on a Brussels court’s order to Belgian ISPs to block Sci-Hub domains); Dalmeet Singh Chawla, Sci-Hub Blocked in Russia Following Ruling by Moscow Court, Chem. World, Dec. 3, 2018 (discussing Moscow City Court’s ruling that Sci-Hub should be blocked throughout Russia).
130. Green, supra note 23, at 325.
131. John Travis, In Survey, Most Give Thumbs-Up to Pirated Papers, ScienceInsider (May 6, 2016), https://www.science.org/content/article/survey-most-give-thumbs-pirated-papers.
132. George Monbiot, Scientific Publishing Is a Rip-Off. We Fund the Research – It Should Be Free, Guardian (Sept. 13, 2018) https://www.theguardian.com/commentisfree/2018/sep/13/scientific-publishing-rip-off-taxpayers-fund-research.
133. Llarina González-Solar & Viviana Fernández-Marcial, Sci-Hub, a Challenge for Academic and Research Libraries, 28 El Profesional de la Información 1, 4-5 (2019) (summarizing academic considerations of Sci-Hub as a significant challenge to the traditional publishing model); Malpani, supra note 100 at 171 (praising Elbakyan as “completely altruistic”).
134. Bohannon, supra note 116 at 511.
135. Jack E. James, Pirate Open Access as Electronic Civil Disobedience: Is It Ethical to Breach the Paywalls of Monetized Academic Publishing?, 71 J. Ass’n Info. Sci. & Tech. 1500, 1501 (2020).
136. John Rawls, A Theory of Justice 3-5 (rev. ed. 1999).
137. The term “Big Deal” was coined by Kenneth Frazier in 2001. It refers to a “comprehensive licensing agreement in which a library or library consortium agrees to buy electronic access to all or a large portion of a publisher’s journals for a cost based on expenditures for journals already subscribed to by the institution(s) plus an access fee.” See Kenneth Frazier, What’s the Big Deal?, 48 Serials Libr. 49, 50 (2005).
138. David J. Solomon, Mikael Laakso & Bo-Christer Björk, Converting Scholarly Journals to Open Access: A Review of Approaches and Experiences 10, 95-99, 155 (Peter Suber ed., 2016) (identifying “specific scenarios that have been used or proposed for transitioning subscription journals to OA so that these scenarios can provide options for others seeking to ‘flip’ their journals to OA”).
139. Beverungen et al., supra note 2, at 931-32 (“Although [Reed Elsevier] ‘adds relatively little value to the publishing process,’ it has clearly been very successful in extracting value from this process. This combination of a negligible contribution to value on the part of publishers with exceptionally high profit rates is possible because of a double appropriation at the heart of the business model.”).
140. James, supra note 141, at 1502.
141. Beverungen et al., supra note 2, at 932.
142. Siler, supra note 12, at 91-92.
143. Ramon Lobato, The Six Faces of Piracy: Global Media Distribution from Below, in The Business of Entertainment 29, 29-32 (Robert C. Sickels ed., Greenwood Publ’g Grp. 2008). The other forms of piracy are: (1) piracy as theft, (2) piracy as free enterprise, (3) piracy as free speech, (4) piracy as authorship, and (5) piracy as resistance. Id. at 20-29.
144. Id. at 29-32.
145. Bodó et al., supra note 105, at 2.
146. Marcus Banks, What Sci-Hub Is and Why It Matters, 47 Am. Librs. 46, 46 (2016).
147. Rawls, supra note 142, at 320.
148. Alexandra Elbakyan & Aras Bozkurt, A Critical Conversation with Alexandra Elbakyan: Is She the Pirate Queen, Robin Hood, a Scholarly Activist, or a Butterfly Flapping Its Wings?, 16 Asian J. Distance Educ. 111, 113-16 (2021).
149. See also Piwowar et al., supra note 49. In assessing the growing relevance of the OA movement, Piwowar et al. did not even consider the relevance of academic piracy.
150. James, supra note 141, at 1503.
151. Johnson et al., supra note 3, at 134-39.
152. Monbiot, supra note 138.
153. James, supra note 141 at 1502-03.
154. Pascale Chapdelaine, Copyright User Rights: Contracts and the Erosion of Property 36-37 (2017).
155. Dànielle Nicole DeVoss & James E. Porter, Why Napster Matters to Writing: Filesharing as a New Ethic of Digital Delivery, 23 Computs. & Composition 178, 185 (2006).
156. The Statute of Anne, 8 Ann. c. 19, § 4 (Eng.); William Cornish, The Statute of Anne 1709–10: Its Historical Setting, in Global Copyright: Three Hundred Years Since the Statute of Anne, From 1709 to Cyberspace 14, 24 (Lionel Bently, Uma Suthersanen & Paul Torremans eds., 2010).
157. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991) (internal quotation marks and citations omitted); see also M/s Entm’t Network (India) Ltd. v. M/s Super Cassette Indus. Ltd., (2008) AIR 2009 SC (Supp) 1150 (India) (reasoning on similar grounds).
158. Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994).
159. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990).
160. In some cases, equitable payments may be required. See generally Jane Ginsburg, Fair Use for Free, or Permitted-but-Paid?, 29 Berkeley Tech. L.J. 1383, 1416-25, 1432-34 (2014) (listing various permitted-but-paid models used by European Union member states and the United States).
161. William F. Patry, A Few Observations About the State of Copyright Law, in Copyright Law in an Age of Limitations and Exceptions 85, 89 (Ruth L. Okediji ed., 2017).
162. Zechariah Chafee, Jr., Reflections on the Law of Copyright: I, 45 Colum. L. Rev. 503, 503 (1945).
163. Id. at 504-15 (describing the six ideals); see also Gillian Davies, Copyright and the Public Interest 244-47 (2d ed. 2002) (summarizing the six ideals).
164. Chafee, supra note 169, at 506-11.
165. Id. at 511-14.
166. See generally Pamela Samuelson, Justifications for Copyright Limitations and Exceptions, in Copyright Law in an Age of Limitations and Expectations12, 15, 24-45 (Ruth L. Okediji ed., 2017) (discussing ten justifications for the existence of L&Es present in the United States and other national copyright laws).
167. Chapdelaine, supra note 161, at 36-37, 42.
168. Ruth L. Okediji, The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries 2 (2006), https://unctad.org/system/files/official-document/iteipc200610_en.pdf.
169. See Daniel J. Gervais, Making Copyright Whole: A Principled Approach to Copyright Exceptions and Limitations, 5 U. Ottawa L. & Tech. J. 1, 10 (2008) (reviewing the history and development of the Berne Convention). But see, e.g., Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, art. 11, June 27, 2013, S. Treaty Doc. N. 114-6 (providing compulsory exceptions).
170. See Copyright Act, 1957, § 52 (India).
171. See Copyright Act of 1976, 17 U.S.C. §§ 101-1332 (2012).
172. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (holding that the commercial nature of a parody song did not create a presumption against fair use).
173. Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (reversing a trial court’s order on procedural grounds).
174. Lee Wilson, Fair Use, Free Use and Use by Permission: How to Handle Copyrights in All Media(1st ed. 2005).
175. Campbell, 510 U.S. at 575.
176. Martine Courant Rife, The Fair Use Doctrine: History, Application, and Implications for (New Media) Writing Teachers, 24 Computs. & Composition 154, 165 (2007). For a discussion of “a foundational case in [both] English and American copyright law[,]” see Mark Rose, The Author in Court: Pope v. Curll (1741), 10 Cardozo Arts & Ent. L.J. 475 (1992).
177. Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841). There is some literature which argues that Folsom should not be viewed as the point of genesis of the fair use doctrine in the American context. See Matthew Sag, The Prehistory of Fair Use, 76 Brook. L. Rev. 1371, 1372-73 (2011).
178. Folsom, 9 F. Cas. at 348.
179. Leval, supra note 166, at 1110.
180. Benjamin Ely Marks, Copyright Protection, Privacy Rights, and the Fair Use Doctrine: The Post-Salinger Decade Reconsidered, 72 N.Y.U. L. Rev. 1376, 1377 (1997).
181. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1176 (9th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003).
182. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 454-56 (1984).
183. Núñez v. Caribbean Int’l News Corp., 235 F.3d 18, 25 (1st Cir. 2000).
184. 17 U.S.C. § 107.
185. Id. at § 107(1)-(4).
186. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576-77 (1994). For an analysis of the subfactor considerations that inform and drive the outcomes of the four statutory factors and such considerations’ effect on the outcome of the overall fair use test, see Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Pa. L. Rev. 549, 594-621 (2008) and Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions Updated, 1978-2019, 10 N.Y.U. J. Intell. Prop. & Ent. L. 1, 23-33 (2020).
187. 17 U.S.C. § 107(1).
188. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1530 (S.D.N.Y. 1991).
189. Campbell, 510 U.S. at 579 (internal quotation marks and brackets omitted).
190. Kyle Richard, Fair Use in the Information Age, 25 Rich. J.L. & Tech. 1, 14 (2018) (assessing recent circuit court decisions).
191. 17 U.S.C. § 107(2).
192. Leval, supra note 166, at 1117.
193. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563 (1985) (“The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.”).
194. 17 U.S.C. § 107(3).
195. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586-87 (1994).
196. Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1263 (2d Cir. 1986).
197. 17 U.S.C. § 107(4).
198. Campbell, 510 U.S. at 590.
199. Nxivm Corp. v. Ross Inst., 364 F.3d 471, 482 (2d Cir. 2004).
200. Campbell, 510 U.S. at 591.
201. Id. at 578.
202. Justin Hughes, Fair Use and Its Politics – at Home and Abroad, in Copyright Law in an Age of Limitations and Exceptions 234, 237-40 (Ruth L. Okediji ed., 2017).
203. Marks, supra note 188, at 1377-78; 94-473 (1975); H.R. Rep. No. 94-1476 (1975), reprinted in 1975 U.S.C.C.A.N. 5659, 5680.
204. Marks, supra note 188, at 1378; Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 476 (1984) (considering the likelihood of future harm in fair use analysis separately from any particular statutory factor).
205. Copyright Act 1911, 1 & 2 Geo. 5 c. 46, § 2(1)(i) (Eng.).
206. Cary v. Kearsley (1802) 170 Eng. Rep. 679 (K.B.); David Bradshaw, “Fair Dealing” as a Defence to Copyright Infringement in UK Law: An Historical Excursion from 1802 to the Clockwork Orange Case 1993, 10 Denning L.J. 67, 68 (1995).
207. Cary, 70 Eng. Rep. at 680.
208. Bradshaw, supra note 214, at 69.
209. Id. at 71.
210. Copyright, Designs and Patents Act 1988, c. 48, §§ 29-30A (Eng.).
211. Copyright Act, R.S.C. 1985, c. C-42, §§ 29-29.2 (Can.).
212. Copyright Act 1968 (Cth) ss 40-42 (Austl.).
213. Copyright Act, 1957, § 52 (India).
214. Narayan Prasad & Pravesh Aggarwal, Facilitating Educational Needs in Digital Era: Adequacy of Fair Dealing Provisions of Indian Copyright Act in Question, 18 J. World Intell. Prop. 150, 152 (2015).
215. Lionel Bently & Brad Sherman, Intellectual Property Law 203 (3d ed. 2009).
216. McMillan v. Khan Bahadur Shamsul Ulama Zaka, (1895) ILR Bom 557.
217. Copyright Act, 1914, § 2(1)(i) (India).
218. See Alka Chawla, Law of Copyright: Comparative Perspectives (2013).
219. Copyright Act, 1957, § 52(1)(a) (India).
220. Id. at § 52(1)(e), (f), (i), (m), (p), (q).
221. Id. at § 52(1)(h), (r), (s), (t).
222. Id. at § 52(1)(j), (za).
223. Id. at § 52(1)(k), (u), (y).
224. Id. at § 52(1)(n), (o).
225. Id. at § 52(1)(v), (w).
226. Id. at § 52(1)(x).
227. Id. at § 52(1)(aa), (ab), (ac), (ad), (b), (c).
228. Id. at § 52(1)(z).
229. Id. at § 52(1)(zb).
230. Id. at § 52(1)(zc).
231. Id. at § 52(1)(a)(i).
232. ICC Dev. Int’l Ltd. v. New Delhi Television Ltd., 193 (2012) DLT 279 (citing Super Cassettes Indus. Ltd. v. Hamar Television Network Priv. Ltd., (2011) 45 PTC 70 (Del.)).
233. Hubbard v. Vosper, (1972) 2 Q.B. 84 (as cited in Super Cassettes Indus. Ltd. v. Hamar Television Network Priv. Ltd., (2011) 45 PTC 70 (Del.)).
234. Harbir Singh, Ananth Padmanabhan & Ezekiel J. Emanuel, India as a Pioneer of Innovation 134 (2017) (“Indian courts have come to treat [fair use and fair dealing] as interchangeable, disregarding the traditional dichotomy which English law had relied on and which continues to influence the approach of English courts to this day.”).
235. Chancellor Masters & Scholars of Univ. of Oxford v. Narendera Publishing House, 38 (2008) PTC 385; Syndicate of the Press of Univ. of Cambridge v. B.D. Bhandari, 185 (2011) DLT 346 (DB).
236. ICC, 193 (2012) DLT at 279.
237. Chancellor, Masters & Scholars of Univ. of Oxford v. Rameshwari Photocopy Servs., (2017) 69 PTC 123 (Del.).
238. E.g., Copyright Act, 1957, § 52(1)(h) (India).
239. Rameshwari, 69 (2017) PTC at 123; see also Anupriya Dhonchak, Can User Rights Under Section 52 of the Indian Copyright Act Be Contractually Waived?, 13 NALSAR Student L. Rev. 117, 121-22 (2019).
240. Rupendra Kashyap v. Jiwan Publ’g House, (1996) 38 DRJ 81.
241. Super Cassettes Indus. Ltd. v. Mr. Chintamani Rao, (2012) 49 PTC 1 (Del.).
242. Wiley Eastern Ltd. v. Indian Inst. of Mgmt., 61 (1996) DLT 281.
243. Super Cassettes Indus. Ltd. v. Hamar Television Network Priv. Ltd., (2011) 45 PTC 70 (Del.).
244. Super Cassettes, (2012) 49 PTC at 1.
245. ESPN Star Sports v. Glob. Broad. News Ltd., (2008) 38 PTC 477 (Del.).
246. See 17 U.S.C. § 107 (listing “purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research” as examples of non-infringing fair use).
247. Copyright Act 1956, 4 & 5 Eliz. 2 c. 74, § 6 (Eng.).
248. Sillitoe v. McGraw-Hill Book Co. (U.K.) [1983] F.S.R. 545 (EWHC (Ch)) at 558 (Eng.).
249. The Copyright and Related Rights Regulations 2003, SI 2003/2498, art. 9(a) (Eng.).
250. Copyright, Designs and Patents Act, 1988, c. 48, § 29(1) (Eng.).
251. Controller of Her Majesty’s Stationery Office v. Green Amps Ltd. [2007] EWHC (Ch) 2755 [7]-[8] (Eng.); see also Estelle Derclaye, Of Maps, Crown Copyright, Research and the Environment, 30 Eur. Intell. Prop. Rev. 162, 162 (2008) (summarizing the facts of the case).
252. Green Amps, [2007] EWHC (Ch) 2755 [21] (Eng.); Derclaye, supra note 263, at 162 (summarizing the court’s reasoning rejecting the defendant’s fair dealing defence).
253. Bently & Sherman, supra note 224, at 207-08.
254. Derclaye, supra note 263, at 163.
255. Brit. Acad. & Publishers Ass’n, Joint Guidelines on Copyright and Academic Research: Guidelines for Researchers and Publishers in the Humanities and Social Sciences 17-20 (2008), https://www.thebritishacademy.ac.uk/documents/1026/Guidelines_on_Copyright-2008.pdf.
256. CCH Canadian Ltd. v. Law Soc’y of Upper Can., [2004] 1 S.C.R. 339 (Can.).
257. Copyright Act, R.S.C. 1985, c. C-42, § 29 (Can.).
258. CCH Canadian, [2004] 1 S.C.R. at para. 51 (internal citations omitted).
259. Urheberrechtsgesetz – UrhG [Act on Copyright and Related Rights], Sept. 9, 1965, BGBl. I, § 60c(1) (Ger.).
260. Id. § 60c(2).
261. BGBl. I, § 60d (Ger.).
262. Paul Goldstein & P. Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 358 (4th ed. 2019).
263. Copyright, Designs and Patents Act 1988, c. 48, § 29A (Eng.), as amended by The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, SI 2014/1372 (Eng.).
264. Intellectual Property Code, art. L. 122-5 (10) (Fr.).
265. Council Directive 2019/790, art. 3, 2019 O.J. (L 130) (EU).
266. Id. at art. 4.
267. Rupendra Kashyap v. Jiwan Publ’g House, (1996) 16 PTC 439 (Del.) (finding that the defendant acted improperly and unfairly by violating the plaintiff’s exclusive license to print exams).
268. Copyright Act, 1957, § 52(1)(a)(i) (India).
269. Copyright (Amendment) Act, 2012, § 38 (India).
270. Guru Prasanna Singh, Principles of Statutory Interpretation 72-77 (A.K. Patnaik ed., 14th ed. 2016).
271. Id. at 161.
272. S.M. James v. Dr. Abdul Khair, AIR 1961 Pat 242.
273. Karnataka Power Transmission Corp. v. Ashok Iron Works Priv. Ltd., (2009) 3 SCC 240.
274. India Const. art. 19, cl. 1(a).
275. Rabinder Nath Malik v. Reg’l Passport Officer New Delhi, AIR 1967 Del 1.
276. Frances Coralie Mullin v. Adm’r, Union Territory of Delhi, AIR 1981 SC 746.
277. Samatha v. State of Andhra Pradesh (1997) 8 SCC 191.
278. John A. Robertson, The Scientist’s Rights to Research: A Constitutional Analysis, 51 S. Cal. L. Rev. 1203, 1212 (1978).
279. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
280. Lawrence Liang, Paternal and Defiant Access: Copyright and the Politics of Access to Knowledge in the Delhi University Photocopy Case, 1 Indian L. Rev. 36, 50 (2017).
281. Id. at 37-38.
282. Amlan Mohanty, Authors, Academics and Students Protest Publishers’ Move in Delhi University Copyright Case, SpicyIP (Sept. 19, 2012), https://spicyip.com/2012/09/authors-academics-and-students-protest.html.
283. Satish Deshpande, Copy-Wrongs and the Invisible Subsidy, Indian Express (Oct. 7 2016, 5:04 AM), https://indianexpress.com/article/opinion/columns/delhi-high-court-judgement-banning-order-photocopy-extracts-of-books-and-journals-3069347/.
284. Liang, supra note 296, at 42.
285. Rameshwari Photocopy, (2017) 69 PTC 123.
286. Id. (citing Longman Group Ltd v Carrington Technical Institute Board of Governors [1991] 2 NZLR 574).
287. Order dated March 10, 2017, Rameshwari Photocopy, (2017) 69 PTC 123 (CS(OS) 2439/2012 IA No. 3154/2017), http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=50568&yr=2017.
288. Joint Statement, Oxford University Press, Cambridge University Press and Taylor & Francis (March 9, 2017), http://fdslive.oup.com/asiaed/News%20Items%20and%20Images/Joint%20Public%20Statement.pdf.
289. Liang, supra note 296, at 52.
290. Elsevier Ltd. v. Elbakyan, CS(COMM) 572/2020, decided on Dec. 24, 2020 (Del.).
291. Arunabh Saikia, Why Indian Researchers Oppose Efforts to Have a Pirate Website Banned, Scroll.in (Dec. 24, 2020, 6:30 AM), https://scroll.in/article/982146/push-to-ban-sci-hub-pirate-website-will-blunt-indian-research-projects-warn-academics; Nitin Pai, Why Blocking Sci-Hub Will Actually Hurt National Interest, ThePrint (Dec. 29, 2020, 11:04 AM), https://theprint.in/opinion/why-blocking-sci-hub-will-hurt-national-interest/575577/; Prabir Purkayastha, Elsevier and Wiley Declare War on Research Community in India, Leaflet (Dec. 28, 2020), https://www.theleaflet.in/elsevier-and-wiley-declare-war-on-research-community-in-india/.
292. Arul George Scaria, Sci-Hub Case: The Court Should Protect Science from Greedy Academic Publishers, Wire (Dec. 22, 2020), https://thewire.in/law/sci-hub-elsevier-delhi-high-court-access-medical-literature-scientific-publishing-access-inequity; Rahul Siddharthan, An Anti-Science Lawsuit, Hindu (Dec. 24, 2020, 5:06 PM), https://www.thehindu.com/opinion/op-ed/an-anti-science-lawsuit/article33405250.ece.
293. Elsevier Ltd. v. Elbakyan, CS(COMM) 572/2020, decided on Jan. 6, 2020 (Delhi High Court).
294. These rights are accorded to the publishers via a conjoint reading of Section 14 and Section 51 of the Copyright Act of 1957.
295. Vandana Mahalwar, On Copyright Protection, 56 Econ. & Pol. Wkly. 4, 5 (2021).
296. CGT v. P. Gheevarghese, Travancore Timbers and Products, (1972) 4 SCC 323 (India).
297. The Act has subsequently been repealed with effect from October 1998.
298. Gheevarghese, (1972) 4 SCC 323.
299. Univ. of Cambridge v. B.D. Bhandari, (2011) 47 PTC 244 (Del.).
300. Wiley E. Ltd. v. Indian Inst. of Mgmt., 61 (1996) DLT 281.
301. Romesh Chowdhry v. Kh Ali Mohamad Nowsheri, AIR 1965 J&K 101.
302. Rupendra Kashyap v. Jiwan Publ’g House, (1996) 16 PTC 439 (Del.).
303. Elbakyan & Bozkurt, supra note 155, at 113; Simon Oxenham, Meet the Robin Hood of Science, Alexandra Elbakyan, Big Think (Feb. 9, 2016), https://bigthink.com/neurobonkers/a-pirate-bay-for-science.
304. Sidharth Singh, An Interview With Sci-Hub’s Alexandra Elbakyan on the Delhi HC Case, (Feb. 22, 2021), https://science.thewire.in/the-sciences/interview-alexandra-elbakyan-sci-hub-elsevier-academic-publishing-open-access/.
305. Himmelstein et al., supra note 29, at 12.
306. See Ian Graber-Stiehl, Science’s Pirate Queen, Verge (Feb. 8, 2018, 9:00 AM), https://www.theverge.com/2018/2/8/16985666/alexandra-elbakyan-sci-hub-open-access-science-papers-lawsuit; Anna Baydakova, Blackballed by PayPal, Scientific-Paper Pirate Takes Bitcoin Donations, CoinDesk (June 22, 2020), https://www.coindesk.com/markets/2020/06/22/blackballed-by-paypal-scientific-paper-pirate-takes-bitcoin-donations/.
307. Malpani, supra note 100, at 171.
308. See, e.g., Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1283 (11th Cir. 2014); Brandon Butler, Transformative Teaching and Educational Fair Use After Georgia State, 48 Conn. L. Rev. 473, 509-14 (2015).
309. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §13.05 (1st ed. 1963).
310. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
311. Cambridge, 769 F.3d at 1289.
312. Compare Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381, 1389 (6th Cir. 1996) (“[T]he excerpts copied for the course packs contained creative material, or ‘expression;’ it was certainly not telephone book listings that the defendants were reproducing. This factor . . . cuts against a finding of fair use.”), with Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) (“The books infringed in suit were factual in nature. This factor weighs in favor of defendant.”). Thus, no bright-line rules can be accepted; this position has since been ratified by some courts. See, e.g., Cambridge, 769 F.3d at 1269 (finding the second factor weighing neutrally for similar academic work).
313. Rulification broadly means converting the flexible, case-specific deliberation “standards” to “rules” and adopting uniformity, predictability, and low decision costs at the expense of rigidity and inflexibility. See generally Michael Coenen, Rules Against Rulification, 124 Yale L.J. 644 (2014).
314. Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190, 1242 (N.D. Ga. 2012).
315. For a detailed assessment of the Court’s argument and its criticism, see Niva Elkin-Koren & Orit Afori, Rulifying Fair Use, 59 Ariz. L. Rev. 161, 186-99 (2017).
316. Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1270 (11th Cir. 2014).
317. Becker, 863 F. Supp. 2d at 1218.
318. Am. Geophysical Union v. Texaco, Inc., 802 F. Supp. 1, 16 (S.D.N.Y. 1992), aff’d, 60 F.3d 913 (2d Cir. 1994). However, the Plaintiff prevailed based on other factors.
319. Swatch Grp. Mgmt. Servs. v. Bloomberg LP, 756 F.3d 73 (2d Cir. 2014); Wendy J. Gordon, The Fair Use Doctrine: Markets, Market Failure and Rights of Use, in Handbook on the Economics of Copyright: A Guide for Students and Teachers 82 (Richard Watt ed., 2014).
320. See Matthew Rimmer, The Foxfire of Fair Use: The Google Books Litigation and the Future of Copyright Laws, in Oxford Research Encyclopedia of Communication (2017); Argyri Panezi, The Role of Judges in Deciding the Future of Digital Libraries, 17 Glob. Jurist 20150025 (2017).
321. Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012), aff’d in part, 755 F.3d 87 (2d Cir. 2014).
322. Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282, 289 (S.D.N.Y. 2013), aff’d, 804 F.3d 202 (2d Cir. 2015).
323. Authors Guild v. Google, Inc., 578 U.S. 941 (2016) (denying certiorari); see also Adam Liptak & Alexandra Alter, Challenge to Google Books Is Declined by Supreme Court, N.Y. Times (Apr. 18, 2016), https://www.nytimes.com/2016/04/19/technology/google-books-case.html; Panezi, supra note 359.
324. Haochen Sun, Copyright Law as an Engine of Public Interest, 16 Nw. J. Tech. & Intell. Prop. 123, 127-130, 137-38 (2019).
325. Nimmer & Nimmer, supra note 346, at § 13.05.
326. Id. (“Only the impact of the use in defendant’s work of material that is protected by plaintiff’s copyright need be considered under this factor. Thus, a court need not take into account the adverse impact on the potential market for plaintiff’s work by reason of defendant having copied from plaintiff noncopyrightable factual material.”).
327. Journals publishing revenues are generated primarily from academic library subscriptions (68-75% of the total revenue), followed by corporate subscriptions (15-17%), advertising (4%), membership fees and personal subscriptions (3%), and various author-side payments (3%). Johnson et al., supra note 3, at 21.
328. Id. at 135-39 (“[T]he consensus view suggests that roughly 15-20% of new articles were immediate (gold or hybrid) OA by 2016.”).
329. Lindsay Cronk, Resourcefully: Let’s End the Serials Crisis, 79 Serials Libr. 78, 79-81 (2020).
330. Ernesto Priego, Signal, Not Solution: Notes on Why Sci-Hub Is Not Opening Access, Winnower (Feb. 23, 2016), https://thewinnower.com/papers/3489-signal-not-solution-notes-on-why-sci-hub-will-not-open-access.
331. Sean Coughlan, Police Warn Students to Avoid Science Website, BBC News (Mar. 19, 2021), https://www.bbc.com/news/education-56462390.
332. Police Warn Students and Universities of Accessing an Illegal Website to Download Published Scientific Papers, City of London Police (Mar. 19, 2021, 8:17 AM), https://www.cityoflondon.police.uk/news/city-of-london/news/2021/march/police-warn-students-and-universities-of-accessing-an-illegal-website-to-download-published-scientific-papers/.
333. Mahesh Gadhvi, Shival Srivastav & Rajesh Sharma, Access to Scientific Literature: Legitimate Channels, 64 Indian J. Physiology & Pharmacology 155, 156 (2020).
334. Toby Green, Is Open Access Affordable? Why Current Models Do Not Work and Why We Need Internet-Era Transformation of Scholarly Communications, 32 Learned Publ’g 13, 18 (2019).
335. Jeff Pooley, The Library Solution: How Academic Libraries Could End the APC Scourge, SSRC: items (Sept. 3, 2019), https://items.ssrc.org/parameters/the-library-solution-how-academic-libraries-could-end-the-apc-scourge/.
336. Steven Shavell, Should Copyright of Academic Works Be Abolished?, 2 J. Legal Analysis 301, 304 (2010).
337. See, e.g., Scheufen, supra note 54, at 142-43 (arguing Shavell’s model to remove copyright protection for academic works fails a legal feasibility requirement and is not reasonable from an economics perspective).
338. Wadim Strielkowski, Will the Rise of Sci-Hub Pave the Road for the Subscription-Based Access to Publishing Databases?, 33 Info. Dev. 540, 541 (2017).
339. Lawrence K. Altman, The Ingelfinger Rule, Embargoes, and Journal Peer Review-Part 1, 347 Lancet 1382, 1382 (1996).
340. Larivière et al., supra note 4, at 12.
341. Scheufen, supra note 54, at 143.
342. Id. at 144.
343. Urheberrechtsgesetz [UrhG] [Act on Copyright & Related Rights], Sept. 9, 1965, BGBl I at 1273, as amended, Dec. 20, 2016, BGBl I at 3037, § 38(4) (Ger.).