[This post has been authored by Ishita Mundhra, a second-year student at the West Bengal National University of Juridical Sciences]
Shadow libraries are a relatively recent disruption in the publishing sector. They share a plethora of literary material which is often copyrighted, free of cost, by circumventing paywalls. While individual scholars and academicians frequently share their publications for free when requested, shadow libraries centralize this process. Prominent examples include Sci-Hub and Library Genesis (‘LibGen’), which aim to secure immediate access to materials through a painless interface. Although these libraries are in a constant struggle with copyright laws, they eliminate the difficulties in accessing literary materials faced by individuals, institutions, and organisations alike. These difficulties emanate as a direct consequence of the aggressive pricing structures set by large publishers who control the majority of all useful literary material.
The legitimacy of shadow libraries operating in India is being called into question by some of the largest publishers in the world, who seek to disband their operations. Elsevier Inc., Wiley India Pvt. Ltd., Wiley Publishers LLC, and the American Chemical Society (‘Plaintiffs’) have filed a copyright infringement suit against Sci-Hub and LibGen (‘Defendants’) in the Delhi High Court. In essence, the publishers allege that the system of providing free access to copyrighted literary material is in violation of The Copyright Act, 1957 (‘the Act’) as the Plaintiffs have exclusive rights over the material under the Act.
This tussle between some of the most profitable companies in the world and smaller, more discreet, shadow libraries has captured the attention of the academic community.
This piece aims to highlight why, and how, shadow libraries are so integral to the academic community and other sectors of the general public, and argues that they should thus be granted protection under the Act. Section II of the paper will engage with Section 52 of the Act which provides for exceptions to copyright infringement, and will summarize the applicability of the “Fair Dealing” exception in the instant case. Section III will provide for alternative solutions that can be considered for remedying knowledge inequalities.
Shadow Libraries and the Copyright Act
In the proceedings before the Delhi High Court, the Plaintiffs have contended that the Defendants’ mode of circumventing paywalls to access their paid literary content falls within the purview of §51 of the Act. This section enlists what amounts to copyright infringement. However, §52 of the Act contains certain exceptions to copyright infringement which have been satisfied in the instant case.
A. Uncovering §52 of The Copyright Act
The intent behind copyright law is to give exclusive rights to the holder of the copyright such that they can determine the manner in which their work is exploited. The exceptions under §52 of the Act are necessary to improve education and research, as well as cultural and economic activities, by providing greater access to resources which might be otherwise unavailable. They offset the monopoly held by large publishers, without intervening in their commercial prosperity. This makes these exceptions instrumental in the promotion of free speech and expression, which undoubtedly includes the right to access information. One such exception enlisted in the Act is Fair Dealing.
Fair Dealing seeks to encourage the free circulation of information – facts, criticisms, or praise. It aims to achieve public welfare goals by utilizing an author’s work to disseminate knowledge which will “stimulate activity and progress in the arts for the intellectual enrichment of the public”. This exception extends to using copyrighted material for private research, criticism, review, and certain reporting activities. To assess the applicability of the Fair Dealing exception, multiple tests have been developed. Within Indian jurisprudence, Fair Dealing is held to be applicable if the “purpose of the use” of the material falls within the goals postulated by the exception.
B. Do Shadow Libraries fall under the Fair Dealing Exception?
To determine whether the “purpose of the use” of shadow libraries is enough to invoke the “Fair Dealing” exception, it is important to analyse whether the infringed work is necessary for educational instruction or research work.
Severe accessibility concerns exist with regard to information dissemination, due to the high costs associated with pay walled materials. Shadow libraries are instrumental in remedying these accessibility concerns, especially with regard to scholarly work.. Exorbitant costs allow large publishers to monopolize scholarly work. For instance, it is estimated that the cost to access a single renowned medical journal in India is at least INR 15,000. Due to this, a large number of well-endowed universities across the world have not renewed their subscriptions with publishers like Elsevier. Even well-funded institutions in India such as the Council for Scientific and Industrial Research have expressed unaffordability concerns.
Given this, it is difficult to imagine the plight of smaller, local institutions in India, which are already poorly-funded. Shadow libraries solve this problem relatively easily, by challenging the prohibitive prices charged by publishers. They represent a “bottom-up” approach involving cooperation between scholars, students, and the general public in making resources equally accessible to all. This approach includes donations, volunteer work for these libraries and sharing of access to renowned journals and resources.
Another concern which may be factored in is the highly exclusionary nature of the academic publishing market where a few players control almost 70% of all literary material in certain fields. Open access publishing, which seeks to charge the authors instead of the readers, is also an exclusionary alternative.
It may be argued that the publishing industry is forced to charge high prices because of the expenses involved. However, this is not the case. The journal publishing industry is unique, to the extent that it is able to dodge most costs involved in the construction of scholarly material. While a traditional magazine or newspaper publisher would have to pay authors to write columns, editors to refine the same, printing costs, etc., journal publishers avoid this hassle. They receive publications for free and these publications are peer-reviewed on a voluntary basis by experts. Moreover, in the present day, most journals are primarily published only online. Therefore, due to minimal costs of their own, publishers like Elsevier are able to make outrageous profits. Not only does this practice detrimentally affect students and scholars, it is also averse to the furtherance of scientific research and education.
In light of the above, it can be concluded that shadow libraries fall under the “Fair Dealing” exception by remedying accessibility concerns which span economic and social realms and aiding educational and research-based work.
Bridging the Gap between Copyrights and Unfettered Access
Remedying knowledge inequalities is not solely a burden that can be undertaken by shadow libraries. The jurisprudence around “Fair Dealing” in India is not significantly developed and thus, alternate options must also be considered to achieve uninterrupted access to scholarly work in the event shadow libraries fail judicial scrutiny.
In light of this, this paper recommends the formation of institutional repositories for a comprehensive storage of scholarly material. These institutions would store post-publication copies of work. This could be done in consonance with the recommendations suggested by the Centre for Internet and Society in their quest to make publicly funded research more accessible. The accumulation of these local institutional repositories would centralize the availability of scholarly material. These institutional repositories would not infringe copyright laws in the country as an express educational exception is given and acknowledged. Fields within the education sector could provide free access within their fields to their repositories which will lead to a vast amount of literature being amassed. Not only will such a practice greatly benefit the students or other public using such material, but would also lower the library expenditures of the institutions.
Moreover, the government should speedily work to ensure the implementation of the Science, Technology and Innovation (‘STI’) Policy. This Policy hinges on the government negotiating with big publishers to secure access to journals at the government’s expense. These materials would then be provided free of cost to all interested parties. India currently spends INR 1500 crores in procuring journal articles. The implementation of the STI policy would reduce costs considerably, when measured per capita, demonstrating great incentive to execute the same.
Shadow libraries have garnered widespread support in the fight against academic publishers. The furtherance of education and research in the country is dependent on access to cutting-edge literature which is published in top-notch journals controlled by academic publishers. Prohibitive pricing structures have made access next to impossible, furthering the gap between the privileged and the underprivileged, thereby widening knowledge inequalities. Shadow libraries can withstand legal scrutiny by falling with the “Fair Dealing” exception. Flexible interpretation of the Copyright Act and studying the legislative intent behind the same demonstrates that the exception should be implemented such that knowledge can be disseminated to a wider audience.
Access to scholarly material should be available to all, regardless of income, geographic, cultural or social factors. The restriction of access by barring the operation of shadow libraries will cause irreparable damage, unless the government can secure access alternatively.