On December 21, 2020, academic publishers Elsevier Ltd, Wily Pvt Ltd, and the American Chemical Society sued websites SciHub and Library Genesis, also known as LibGen, for copyright infringement in the Delhi High Court, demanding that ISP providers permanently block them in India.

These websites are a primary source for researchers in India, making available for free thousands of otherwise paywalled research papers. Because, as SciHub notes, “Research should be free to read.” Having intellectual property restrictions in research throttle access to and flow of knowledge while science can only progress when it’s widely read and debated.

Elsevier owns over 2,600 journals, including the Lancet, and all of them are paywalled with subscription rates going up to thousands of dollars, making the latest knowledge hard to access for researchers.

Notably, Elsevier has filed a series of cases against Alexandra Elbakyan, the founder of SciHub, across the world. In the United States, the publishing giant sued her and was granted $15 million in damages.

Not being an American citizen, Elbakyan has not paid the penalty. Similar cases have followed in Sweden, Russia, Belgium, France, and Britain with varying verdicts. Now a case is ongoing in India.

The case has attracted considerable attention from academics in India, with demands mounting to protect the websites on the grounds of disparate resources in third world countries and corporate greed in academic publishing.

Here are the latest developments in the case.

The case

The first hearing occurred on December 24 last year where Elbakyan was told to give an undertaking that she would not upload any new paper on SciHub until the next hearing, which was set for January 6. In January, the undertaking was extended until the next hearing.

On September 5, SciHub published 23,37,229 paywalled research papers which had been held up because of the restriction imposed by the court, with Elbakyan claiming her undertaking had expired. The publishers soon filed an application accusing Elbakyan of contempt of the court’s initial order, and stated that Elbakyan was mistaken to assume the restriction had expired.

Replying in an affidavit on September 8, Elbakyan’s counsel argued that the undertaking was last extended on January 6 and expired on March 8, when the court met last and did not extend it any further.

At the latest hearing on September 15, Elbakyan’s counsel submitted a compilation of judgements from the high courts of Delhi, Allahabad and Madras showing that an “undertaking does not extend beyond the date to which it is extended”.

When the counsel for the publishers, Amit Sibal, claimed that they would incur irreparable loss if Elbakyan was not prevented from uploading new research papers to SciHub and not held accountable for having allegedly violated the undertaking, Justice C Hari Shankar asked, “What were you doing for the past nine months when this undertaking was not in force?”

Sibal responded that because Elbakyan had continued to comply with the undertaking in letter and spirit until September, his clients had no reason to do anything.

As for the precedent judgements cited by Elbakyan’s counsel, Sibal claimed that they concerned undertakings that were extended for a specific period of time and not the open-ended “till the next hearing”.

Justice Shankar then gave the defendants until September 18 to submit their responses to Sibal’s application and scheduled the next hearing for September 21.

The reaction

In the past, researchers and universities around the world have boycotted Elsevier’s journals. In India, scientists like TR Shankar Raman of the Nature Conservation Foundation have refused to publish in Elsevier’s journals, or peer review and edit for them.

“It’s absurd,” Raman said. “These commercial publishers are merely profit making companies. Research is funded by public institutions or charitable organisations, researchers do all the work. And yet researchers even have to pay publishers to access their own work. Even if you want to publish an open access article with these companies you have to pay them hundreds and hundreds of dollars. It creates a system where developing countries are just unable to publish.”

How might a ban on SciHub and LibGen affect India? “It will be a huge setback. It will cripple people who don’t have big institutions that get access to the literature. In the past several months, while SciHub was not uploading papers, I was contacted by a number of people in India and abroad because they had no access to new research.”

Vinayak Dasgupta, assistant professor of English at Shiv Nadar University and a digital archivist, argued that until publishers drastically scaled down costs and abandoned the profit-making model for models at cost, SciHub and LibGen would continue to exist.

“If the generation of knowledge is a fundamental need of society, we should think of sustainable research infrastructures adapted to each country,” he added, “Until these are established, the need for and use of SciHub and LibGen will continue.”

Tanuja Kothiyal, a professor at the School of Liberal Studies at Ambedkar University, said, “In the pandemic, and otherwise for my own research, we have relied heavily on LibGen and SciHub to access research articles that otherwise are locked into databases that researchers in the Global South cannot access. SciHub and LibGen make it possible for students to access material which they might otherwise not be able to.”

Kothiyal noted that funding for research, university rankings, and even access to basic repositories like JSTOR are being determined by “impact factors” now that the Global South can’t meet. This creates inequality as a low NAAC or NIRF rating could mean that teachers and students have no access to the material they need to teach and learn to do quality research.

Abi Tamim Vanak, a research associate at the Ashoka Trust for Research on Ecology and the Environment, Bangalore, went so far as to argue that Elbakyan deserved a Nobel Prize. “SciHub has been my go to resource for accessing paywalled scientific literature. Alexandra Elbakyan has done more for science than all the top publishing houses in the world. She has freed knowledge from the clutches of corporate greed,” he added. “She deserves a Nobel Prize.”