Sci-Hub: Will it be an Open and Shut Case?
Will the Open Access and Open Science movements get a leg up today? It is a big day today; the Delhi Court will decide the fate of one of the modern-day gateways to knowledge—the Sci-Hub, founded by Alexandra Elbakyan in 2011 in Kazakhstan. The Delhi court will scrutinize whether the Sci-Hub fouls India’s copyright law. Today’s verdict could be a game-changer for scholarship and science. Furthermore, if in favor of Sci-Hub, the verdict could turn out to be a historic day transforming the business models of scholarly communication.
Most of us are familiar with the Great Library of Alexandria in Alexandria, Egypt, which was one of the largest and most significant libraries of the ancient world, estimated to have had between 40,000 and 400,000 scrolls. The Alexandrian Library was established probably during the reign of Ptolemy II Philadelphus (285–246 BC sometime in (285–246 BC), this great library has been the epitome of scholarly collections. Though it declined and was then revived by the coordinated efforts of UNESCO, UNDP, and the Government of Egypt, the revival project was completed in 2002; the Library of Alexandria (Bibliotheca Alexandrina) now functions as a modern library and cultural center, commemorating the original Library of Alexandria.
Alexandra Elbakyan’s Sci-Hub has taken the idea of Alexandrian Library to the next level and helped advance science and scholarship. Let us hope and pray Indian Court will help it be legally through its ruling today.
Sci-Gub, Open science and Mertonian CUDOS:
Sci-Hub is a shadow library website, providing free access to millions of research papers and books without regard to copyright by bypassing publishers’ paywalls in various ways. It was founded in response to the high cost of research papers behind paywalls. The site is extensively used worldwide, with over 2 million requests per day in 2021. The number of articles on Sci-Hub is over 85 million as of February 2021.
The manifesto of Sci-Hub is — supporting “open access,” “cancellation of intellectual property, or copyright laws, for scientific and educational resources,” and it professes to “fight inequality in knowledge access.” Sci-Hub has truly made access to science and scholarship truly equitable. We have all benefited from Sci-Hub. This manifesto of Sci-Hub segues nicely to the new paradigm of Science—Open Science and the norms of the “the Republic of Science” very elegantly articulated by Robert Merton into an acronym CUDOS—communism, universalism, disinterestedness, and organized skepticism.
The first international framework on open science was adopted by 193 countries attending UNESCO’s 41st General Conference in November 2021. By making science more transparent and more accessible, the UNESCO Recommendation on Open Science will make science more equitable and inclusive. Based on the essential principles of academic freedom and research integrity, open science sets a new paradigm that integrates the classic Mertonian norms of modern science into scientific enterprise practices.
The curious case Sci-Hub in India:
In a lawsuit presented in Delhi’s high court, the American Chemical Society, Elsevier and Wiley argue that the site infringes their copyright and asks the court to instruct Internet service providers in India to block its access. However, Alexandra Elbakyan argues that copyright is “not applicable in cases such as Sci-Hub, whose material is required for science and education” in India.
This case is pathbreaking in its path as well. This is the first time the platform is getting legal representation in a country (India), thanks to volunteers who extended support. When Elbakyan posted the Delhi Court petition on Twitter, Nilesh Jain, a young lawyer in Delhi, spotted it and took an interest. He eagerly waited with consternation as the first hearing date (December 24, 2020) approached and did not see any sign of a defense team. As in the past, he figured Alexandra perhaps had no representation and reached out to her on Twitter and finally called her and got her consent to represent the case. Although not an expert on Intellectual Property Rights (IPR) and has only a few years of litigation experience, Jain showed up for Elbakyan and Sci-Hub on December 24 and asked for time, and secured it then he cast the net for help. First, Rohan George, an expert in IPR issues, agreed to help, and later, senior counsel Gopal Sankaranarayanan also volunteered. Since then, a growing number of legal scholars, scientists, and organizations have joined the fray.
The case depends on one key aspect—the list of exemptions in India’s Copyright Act of 1957. One of these is that ‘fair dealings’ of a work can be used for private or personal use, including research. So the question is whether Sci-Hub’s activities are covered under ‘fair dealings.’
Copyright is one of the contentious issues of today, especially in the context of digital information. The heart of the matter is the principle that the creators of literature, art, and other original works deserve to be rewarded for their efforts and also have to have control over their creations. There are four theoretical frameworks behind copyrights: the labor–desert theory, the personality theory, the utilitarian theory, and the social planning theory. The labor–desert theory and the personality theory form the Rights-based theories and justify copyright as a “natural right” given to the creator of copyright material. The labor–desert theory is based on John Locke’s labor theory of property. Anchored to the economic efficiency principle, it is one of the most prominent theories of copyright. Of late, there has been a great debate about whether copyright laws ought to be viewed from the perspective of economic efficiency alone.
Copyright —The Churn and the Cultural Turn:
Many scholars, such as Siva Vaidhyanathan in his book Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (2003), highlight that overinvestment in protections is problematic as copyright reflects far more than economic interests. Embedded are cultural values—about race, class, access, ownership, free speech, and democracy—which influence how rights are determined and enforced.
There is a chorus of voices, questioning and turning some of these normative principles on their head. These are called the “Cultural Turn.” Julie Cohen, in her book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice(2012) and Madhavi Sunder and her book From Goods to a Good Life: Intellectual Property and Global Justice (2012), represent this cultural turn. A growing body of scholarship on democratic copyright has developed its normative accounts of copyright based on a concept of human welfare. These voices seek to advance and expand Social planning theory to “a substantive conception of the good life or of human flourishing.”
The Cultural Approach leans on the “capabilities approach” to development pioneered by Amartya Sen and Martha Nussbaum. Sen’s vision of “development as freedom” is pluralist, measuring development by assessing an individual’s ability to exercise many freedoms, including market-oriented freedom. It is time to move the foundations of economic principles of copyright from the “Wealth of Nations” of (Adam Smith) to the “Development as Freedom” of Amartya Sen.