Sci-Hub, the popular website that offers access to millions of pirated research papers and books, is no stranger to legal action. But, for the first time, the site is defending its operations in court, in a copyright case filed in India by a group of major publishers.
In a lawsuit presented in Delhi’s high court, the American Chemical Society, Elsevier and Wiley say that the site infringes their copyright, and ask the court to instruct Internet service providers in India to block access to it.
Sci-Hub’s founder Alexandra Elbakyan argues that, in India, copyright is “not applicable in cases such as Sci-Hub, when [material] is required for science and education”.
Legal experts say that there is a chance the court will rule in Sci-Hub’s favour, because of a key aspect of the country’s copyright law. The case hinges on the definition of ‘fair dealings’, which in the past has enabled institutions in India to lawfully reproduce academic textbooks and other copyrighted material for use in education.
If Sci-Hub wins, it could force publishers to rethink their business models in a similar way to how the music industry changed in response to the arrival of the Internet, says Arul George Scaria, a legal scholar at the National Law University, Delhi. Attitudes towards Sci-Hub in other countries could change on the basis of India’s ruling, and the outcome could even influence similar cases in future.
如果Sci-Hub勝訴，將可能迫使出版商重新思考他們的商業模式，就類似音樂產業因應網路時代的來臨所做改變，Arul George Scaria說 (印度德里國立法律大學法學專家)。印度的法院判決將影響著其他國家對於Sci-Hub的處理態度，並且這結果將會影響未來其他的類似案件。
Pirate site 盜版網站
Previously, publishers have sued Sci-Hub and Elbakyan in several countries, and access has been blocked, or is due to be blocked, in 11 countries, including Germany, France, Sweden and the United Kingdom.
In lawsuits filed in recent years by Elsevier and the American Chemical Society, US judges ruled that Sci-Hub infringed the publishers’ copyrights and owed them US$15 million and $4.8 million, respectively. Elbakyan did not appear in court, or offer any legal representation for the site during those cases, and the fines have so far not been paid.
“Pirate sites like Sci-Hub threaten the integrity of the scientific record, and the safety of university and personal data,” the publishers behind the case in India told Nature in a statement. “They compromise the security of libraries and higher-education institutions, to gain unauthorized access to scientific databases and other proprietary intellectual property, and illegally harvest journal articles and e-books.” The publishers also allege that Sci-Hub uses stolen user credentials and phishing attacks to extract copyrighted journal articles illegally.
Elbakyan says that these are “empty accusations” that “have absolutely no content of evidence behind them”. She denies that Sci-Hub is a threat to science, or to the security of academic institutions. “Open communication is a fundamental property of science and it makes scientific progress possible. Paywalled access prevents this,” Elbakyan adds. “That is a threat, and not Sci-Hub.”
The site has proved popular among researchers, who say their institutions cannot afford costly journal subscriptions. India accounts for the third-largest proportion of Sci-Hub’s users, and when publishers brought the Delhi case in December 2020, a group of lawyers offered Elbakyan legal representation.
“There are serious questions of access to knowledge that the court ought to take into account,” says Lawrence Liang, a legal scholar at Ambedkar University Delhi, who isn’t part of the defence team but helped to rally support for Sci-Hub from scientists.
「法院需要考量有關於獲取知識的嚴肅問題」，Lawrence Liang (Ambedkar University Delhi法律學者)說到；他不是被告訴訟團隊的成員但協助整合來自科學家們的支持。
Fair dealings? 公平處理嗎？
The defence will argue that Sci-Hub’s activities are covered by 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.
被告方將提出Sci-Hub所進行的活動泛屬於印度1957年版權法所條列的例外狀況。其中一個論述就是關於『fair dealings (公平處理)』可以被使用在私人或個人使用，包含研究。
Academic publishers have fallen foul of this section of the act before. In 2012, five publishers — including Oxford University Press and Cambridge University Press — unsuccessfully sued the University of Delhi and its photocopying shop for alleged copyright infringement in course packs made at the institution. These packs contained photocopies of passages and chapters from textbooks and, in some cases, copies of entire books that were produced for students, many of who could not afford to buy the originals.
學術出版商曾敗訴因為這一法條段落的規定。在2012年，五家出版商－包含Oxford University Press (牛津大學出版社)以及Cambridge University Press (劍橋大學出版社)－控告University of Delhi (德里大學)失敗，有關於大學內的影印店非法版權侵犯印製上課資料。這些資歷包含了影印出自於教科書的段落和章節，並且有些案例是複印給學生的整本書，因為他們沒有錢可以負擔原文書。
The judge ruled that the university and the photocopying shop were not infringing the copyright of the books’ publishers, because one of the exemptions listed in the copyright act includes reproducing work “by a teacher or pupil in the course of instruction”. A key part of the case was evidence submitted to the court by students and teachers stating the need for the photocopies. This was allowed because there was deemed to be sufficient national interest in the ruling.
Liang was involved in that case, and says that India’s fair-dealing provisions could be broad enough to facilitate the kind of access that Sci-Hub gives to articles. As with the textbooks, national interest in the case means that affected parties can submit evidence to the court. Earlier this year, 20 of India’s top scientists argued that the country’s scientific community “stands to be gravely prejudiced” if the case goes against Sci-Hub.
Liang參與這一個按鍵，並說印度的公平處理原則 (fair-dealing provisions)可能可以延伸到Sci-Hub所提供研究文章的下載。就跟教科書一樣，國家利益在這案件裡面也影響著受影響的一方可以上承證據給法院。今年初，20位印度的頂尖科學家聯合聲明說，這個國家的科學社群將「嚴肅地選邊站」如果這個案件傾向判決Sci-Hub敗訴。
The scientists say in a document — known as a petition — submitted to the court that the case could have an “adverse impact on access to scientific knowledge, and so on science and technology research in India”.
“Access to information is crucial for researchers. When the information is hidden behind paywalls, that curbs innovation,” says Shahid Jameel, a virologist currently at the University of Oxford, UK, who signed the petition. Computational biologist Rahul Siddharthan at the Institute of Mathematical Sciences in Chennai, India, adds that “apart from a small number of elite institutes in India, most cannot afford to subscribe” to journals.
「資訊的獲得對於研究者是致關重要！當資訊被隱藏在付費牆之後，將會有礙於創新」，Shahid Jammel (英國牛津大學病毒學家；參與了請願書的簽署)說到。計算生物學家Rahul Siddharthan (印度清奈Institute of Mathematical Sciences)補充道，「除了少部分印度菁英機構，大多數的都無法負擔期刊的訂閱費用」！
Further petitions supporting Sci-Hub have been submitted by medical doctors and policy advisers who use scientific papers as part of their work.
Ripple effect 漣漪效應
The case’s next hearing is scheduled for 16 December, but legal experts warn that it could rumble on for years. Scaria says that the outcome will depend on whose rights the judge focuses on under the copyright rules. “If the judge views the matter from the perspective of user rights under copyright law, there is a high chance that Sci-Hub will win the case,” he says. But if the judge views the matter from the perspective of the copyright holder, the verdict might go against the site.
The ramifications for publishers if Sci-Hub wins are hard to predict, according to Sci-Hub’s lawyers Shrutanjaya Bhardwaj and Sriya Sridhar. “Courts in progressive nations frequently borrow principles from foreign jurisdictions, and it is possible that Sci-Hub’s victory before the Delhi high court will cause a global ripple effect,” they say. On the other hand, a loss for Sci-Hub could see many researchers and institutions that cannot afford journal subscriptions being “excluded from access to scholarly work”.
對於出版商地後果，如果Sci-Hub勝訴，是難以預測的，根據Sci-Hub律師Shrutanjaya Bhardwaj 和 Sriya Sridhar 的說法。「進步國家法庭通常會參考外國的法院判決結果，而很有可能德里Sci-Hub如果勝訴，將引起全球的漣漪效應」！相反來說，Sci-Hub的敗訴也將可能會看見許多的研究者和機構，因為無法負擔期刊的訂閱，而被「排除在學術資訊獲得之外」
Elbakyan says that the case could change everything for Sci-Hub. Winning could bring opportunities to improve the site and extend its reach.
“Today, the perception of Sci-Hub [is that] it is an illegal project, and that is even not disputable, but a fact,” she tells Nature. “Victory will show the ‘fact’ to be merely an opinion.”
「今天，世人對於Sci-Hub的認知是它是一個非法的計畫，且那甚至無法辯駁，而是一個事實 (fact)！」她告訴Nature。「只要我們勝利，就能夠顯露這一個『事實(fact)』就僅僅是一個意見 (opinion)而已」。