The Delhi high court now has the onerous duty to determine the future of access to scientific literature in India in the near future.

Four global academic publishing entities – Elsevier Ltd, Wiley India Pvt Ltd and Wiley Periodicals Pvt Ltd, and American Chemical Society – have filed a case in the Delhi high court on 21 December, saying two online free research repository websites(shadow libraries) that provide access to paywalled research, have infringed their copyright.

The court had the first hearing in this very important case for all researchers in India on 24 December 2020. In Thursday’s sitting the court restrained the two websites – Sci-Hub and Libgen – from uploading, publishing, and making available any article on their sites till 6 January, when it will next hear the case.

The publishing houses have asked the high court to block Sci-Hub, which has published nearly 84 million articles and papers, and Libgen that claims to host nearly 80 million research articles. The prosecution has asked the court to direct internet service providers in India, the department of telecom and the Ministry of Electronics and Information Technology to block complete access to Sci-Hub and Libgen sites in India through a so-called dynamic injunction.

The first defendant in the case is Alexandra Elbakyan, the founder of Sci-Hub, who was represented by lawyer Nilesh Jain, who promised, the website will not put up anything new until the case is settled. Libgen was unrepresented. Jain sought time to study the complaint that ran into more than 2000 pages. The court told the plaintiffs, the defendants have been around since 2011. ‘Where were your clients for so many years? These sites are known by everyone.’

In their complaints the plaintiffs said, ‘The defendant websites actively encourage viewing/downloading of original literary works for which the plaintiffs have exclusive rights’. Their senior advocate Amit Sibal, told the court that the plaintiffs do not even know the addresses of the defendants. The publishers also said, Sci-Hub and Libgen have created – and continue to create – numerous domains on the web so they can provide access to articles or book chapters published by the plaintiffs, even if some of their domains have been blocked by court orders in other countries. They want nothing less than a ‘dynamic injunction’ that is, once a defendant’s website is categorised as a rogue website, the plaintiff won’t have to go back to the judges to have any new domains blocked for sharing the same materials and can simply get the injunction order extended with a request to the court’s deputy registrar.

Media houses are calling the three publishing houses ‘greedy Academic Publishers’ and ‘Anti-Science Law Suit’. While Hindustan Times and The Hindu has quoted researcher asking, , how many Indian researchers can afford to buy reference material, the Wire has said, ‘the progress of science depends on access to existing literature; the denial of such access can also result in serious social, economic and public health tragedies’.

‘If the Delhi high court issues a dynamic injunction against Sci-Hub and Libgen, the vast majority of researchers in India may not be able to access peer-reviewed articles and book chapters vital for their research and education, via these two platforms, it says. It points out that the price for 24-hour access to one article published in the latest issue of The Lancet, is $31.50 – approximately Rs 2,330 – nearly a hundred rupees an hour!’

The Wire too asks: ‘How many doctors and researchers in India’s numerous public healthcare facilities and universities will be able to access all the relevant literature in this pricing model?’

‘The COVID-19 pandemic has also illustrated how there can be situations in which researchers won’t be able to visit their campus to access materials. So even if a researcher’s institution may have an institutional subscription to a given journal, the researcher may in practice not be able to access the material using this subscription.’

‘Both Sci-Hub and Libgen have been trying to address the problems of inequality in access through a revolutionary approach: by liberating access to the millions of manuscripts unjustifiably controlled by publishing giants.’

Elsevier publishes The Lancet and Cell journals among 2,500 others. Wiley publishes 1,700 journals. The American Chemical Society is one of the world’s largest scientific societies and publishes the prestigious Journal of the American Chemical Society. -- BLT