By Yogesh Pai
A recent civil suit at the Delhi High Court by publishers (Elsevier, Wiley and American Chemical Society) to permanently block popular shadow libraries (i.e. pirate websites) like Sci-Hub and Libgen has drawn an expected backlash from civil society groups, copyright scholars and popular commentators. While some scholars and commentators have called the business of academic publishing ‘greedy’, others note that shutting down such pirated websites is ‘anti-science’ and against ‘national interest’. Over two thousand academics, scientists, teachers and students have signed a petition against blocking such websites citing public-good and highlighting their stance against “commoditization of research information”.
The argument is as follows. Academic publishing relies on an outdated proprietary business model in the internet age where push-button open-access publishing is a reality. We don’t need the ‘rent-seeking’ academic publishers, except their existing curated content. Barring a few exceptions, it remains a fact that academic publishers do not pay authors for content creation or for engaging authors in the peer-review process. Thus, the costs incurred and the value addition by the academic publishing industry are arguably minimalistic (editing, enabling peer-review, curating, archiving and marketing) considering the profit margins of top scientific publishers (approximately between 30% and 40%). Copyright law serves such interests in a disproportionate way since it allows academic publishers to fully control the supply of books and journals. The risk-rewards ratio is skewed in favour of publishers. As a result, science and knowledge flow is restricted to only those institutions/individuals that can pay (and/or continue to pay annual subscriptions), which is certainly not an ideal outcome for the public-good involved in science. Ergo, all paywalls must be demolished as there is no real-world value contributed by academic publishers.
Real Value of Academic Publishing: The Publishing Paradox
Surprisingly, the real value provided by academic publishers is not limited to the low-value addition activities they undertake. In fact, the real value is deeply entrenched in the current academic and scientific culture. After all, scientific research, even in public institutions, is highly competitive. Hence over the past half a century, a system has evolved where publishing with journals having an impact-factor is associated with academic prestige. To a large extent, this has reinforced the role of academic publishers since publishing with journals having a high impact factor is used for hiring, promotions, awards, grants and overall academic prestige. For e.g. the journals listed by UGC-CARE implicitly recognise that quality in academic publishing matters irrespective of the publishing house or its proprietary status. Thus, a collective action problem in academic publishing is resolved by academic publishers in an organic way (i.e. science/academic policy reinforcing the role of academic publishers), albeit at the cost of the academic and scientific community giving away their soul (i.e. content). Where peer-review and impact factor are not easily correlated with academic prestige (particularly in law), academics are inclined towards publishing with student-edited and open-access journals. Paradoxically, the science policy folks are in no hurry for any wholesale reforms to delink the matrix of academic prestige and academic publishing.
Price, Competition and Market-Failure: The (False?) Promise of Open Access and the Internet
Funding agencies, particularly in western universities and research institutions, quickly bought into the idea that allocating specific funds (sometimes a whopping $500 and up to $5000 per paper) for open-access publishing would ultimately make access to scientific publications free for all. The emphasis on pay and publish also led to a rise of predatory journals with India at its epicentre. While reputed academic publishers co-opted the pay and publish open-access model along with their proprietary user-based subscription model, the final price of subscribed databases never dropped. The dominance of academic publishers has not eroded even with the rise of the internet and open-access publishing models. After all, if many academic institutions consider it problematic to pay for subscriptions, how would they be able to justify allocation of funds for open access publishing unless someone (a funding agency perhaps) paid for it? Any seasoned economist would confirm that in cases of monopoly (i.e. proprietary subscription-based) tied with non-monopoly bundles (i.e. free/open-access content), the pricing is always based on a single monopoly profit, and hence always monopolistic. It reveals that the idea of shifting towards an open-access model, with academic publishers as strange bedfellows, was not tested for economic robustness. This is not to underestimate the virtues of open-access, provided we find a voluntary and sustainable model to keep it open.
Another problem in pricing of academic publications is that the market for academic publishing (mostly public/private universities and research institutions) is not price sensitive. Because one book/journal does not compete with another, institutions that can afford to pay, end up subscribing to all major databases. Others either subscribe in a limited way or simply don’t subscribe. Unfortunately, due to the very narrow market for academic publishing (unlike music and films), academic publishers have failed to adopt a two/multi-sided platform market approach (like internet companies/newspapers), where content can be provided for free as revenues are generated through an advertising model. Thus, pricing still remains a potential issue even in the age of the internet and open-access.
Sci-hub and Libgen do not incur opportunity costs which are even remotely close to those of the academic publishers and thus the virtue-signalling associated with it being ‘free’ and ‘open-access’ relies on untested economic and policy grounds. Sure, pricing is an issue associated with academic publishers which needs to be managed through legal instruments, but expecting every market participant to have similar incentives is factually inaccurate. If it were feasible, the markets themselves would have made an inevitable shift towards forfeiture of IP assets. Copyright law does not prevent well-funded universities, non-profits, and internet/big-data industries from investing in new and fully open-access journals in-order to create high-impact factor journals to replace existing academic publishers. As the collective action problem associated with academic publishing still remains, so does the economic case for the existence of academic publishers.
The Case against Sci-hub and Libgen: Saving the Rule of Law and Public Interest
One significant concern with the Robin-Hood approach of such pirate websites is that access to scientific and academic research rests at their mercy and individual whim. For example, in 2017, Sci-Hub’s founder Alexandra Elbakyan, a self-proclaimed communist (“inspired by communism, but not a strict Marxist”), temporarily cut-off access to Sci-Hub for the Russian Federation due to her personal and ideological opposition to a liberal faction of the Russian scientific community. While the whereabouts of Elbakyan are known to be in Russia (physical address never revealed), the founder and chief-librarian at Libgen is unknown. Elbakyan is being investigated by the U.S. agencies for potential links to Russian intelligence. Notwithstanding their political and other persuasions, these websites are blocked in several western jurisdictions for copyright violations.
While the case against Sci-Hub and Libgen in not unique to India, the access situation certainly is, since many universities and institutes in India rely upon Sci-Hub/Libgen for access to academic publishing. While there is no specific dis-aggregated data, India ranks No. 3 in terms of Sci-Hub downloads, next only to Iran and China. Interestingly, a quarter of these downloads was from the rich OECD countries, which is attributed not only to the rising subscription costs and falling library budgets, but also due to the convenience in accessing Sci-Hub ubiquitously.
If Sci-Hub is necessary for the progress of science, what is the problem? The moral case for a violation of copyright as an exclusive ‘property’ right is relatively weak in the light of enormous public-good enabled by ‘access’ to scientific content. While the core values of scientific research (i.e. reproducibility and falsifiability) need access to scientific content, it does not make access to pirated content a core value.
By refusing to block Sci-hub/Libgen, the court will provide a legal endorsement, effectively legalising mass-scale piracy. This is squarely against the rule of law and will not withstand judicial scrutiny. Until now, at least some universities/institutes obtain a licence because of the illegal nature of activities attributed to such websites. If the court refuses to shut it down, no institution will be required to take any licence from publishers. That’s the irreparable injury which will irreversibly harm not only academic publishers in the short-run, but also the real-world benefit derived by the scientific community from academic publishing in the long-run. In granting an injunction, courts are required to consider the question of such ‘irreparable harm’ and whether monetary damages are adequate. Monetary damages in this case are simply unenforceable since these websites operate from a foreign location and the known/unknown defendants do not own any assets in India. Particularly due to the dubious nature of their activities, courts cannot institute any ongoing royalties against the website owning defendants, either temporarily or permanently in lieu of an injunction.
Although a case for full trial has been made as these websites may hold non-infringing material (i.e. open-access articles/ public domain materials or those belonging to other publishers), it does not take away the fact that practically all articles from several paid journals are available on sci-hub’s content archives. In a website that dynamically hosts millions of papers (currently 85 million!), it is impossible to pin down the exact number of infringing articles published and hence only an indicative list is sufficient. In civil litigation, the standard of proof is to show the preponderance of probabilities that an infringement has actually taken place.
It has also been argued that the public interest factor, which is often considered in evaluating balance of convenience in granting/denying of an injunction in India, strongly weighs in favour of the defendants. That’s only partly correct. Any full view of public-interest must consider both ex-ante factors that make academic publishing a necessary cog in the system of science communication and ex-post factors involved in equitable diffusion of scientific research. The ex-ante and ex-post public-interest involved in academic publishing and its dissemination is far too complex, even if one were to fully discount the private interests of the publishers.
A case for a dynamic injunction (to block any mirror links created to circumvent court orders) exists based on the Delhi High Court’s previous rulings. Although the websites in question satisfy most factors associated with any ‘rogue’ website, the courts must explore all possibilities of tailoring such an injunction. An order for dynamic injunction must only cover the copyright claims of present petitioners. In other words, if the current websites or a mirror link hosts any content other than those of the petitioners, the present preliminary injunction should not cover it. After all, copyright is a private right and hence its enforcement must also be left to right-holders. Once a list of journals/book titles is provided by the plaintiffs over which copyright is claimed, the burden must be on the defendant to scrutinise the Rights Management Information (RMI) and ascertain that the copyright infringing materials belonging to the plaintiffs are permanently removed. If the defendant refuses to undertake such an obligation, only then a dynamic injunction must follow. Even going by the furthest reforms to copyright remedies that scholars have envisaged, it is noted that any act of wilful infringement must attract the full panoply of legal remedies under copyright law.
Furthermore, should the court decide to go ahead with a trial, it must at least ask the defendants to deposit some interim damages in an escrow account under its supervision and for the petitioners to provide a cross-undertaking by way of bank guarantee. Courts have done this previously in other IP cases involving patent infringement. However, it is doubtful if Sci-hub or Libgen will even contest the litigation by providing any physical address and consider full participation in a trial, which will require payment of monetary damages on finding of infringement. A case for full-trial on merits rests on the conduct of the all defendants to participate in the trial and not otherwise.
Click here for Part 2 of the Blog.
Yogesh Pai is an Assistant Professor and Co-Director of CIIPC at National Law University Delhi. Views are personal and does not express the views of the Centre/University.