This post is in continuation to my previous post (here) discussing the copyright infringement suit filed by academic publishers against Sci-Hub and Libgen, particularly the dynamic injunction sought by the plaintiffs. Here, I discuss the applicability of a fair dealing defence for the defendant websites in the instant dispute.
Fair Dealing
Even if the court rules that the defendant websites were indulging in activities amounting to copyright infringement, it is necessary for the court to examine whether such use would be covered by any of the exceptions provided under Section 52 of the Copyright Act. The most interesting discussion towards this end would be the exception provided under Section 52(1)(a) of the Act. The relevant provision is as reproduced below:
“(a) a fair dealing with any work, not being a computer programme, for the purpose of—
(i) private or personal use, including research;”
This provision thus allows for acts to not constitute infringement if they are done for the purposes of private use that includes research, provided that there is ‘fair dealing’ with the work. In this regard, the court must need to discuss two issues: first, whether the defendant websites’ use can be considered ‘fair dealing’, and second, whether this provision includes facilitation of research within its ambit. I shall now discuss them in that order.
With regards to the issue of ‘fair dealing’, as I have examined earlier, the Delhi High Court in India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd. has incorporated the four-factor test used in the US to interpret fair dealing. These factors are:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
Purpose and Character of Use
In the instant case, the purpose of use of the copyrighted works by the defendants is to ensure adequate access to paywalled articles to facilitate research. This falls squarely within the ambit of a ‘non-profit educational purpose’. The possible counter to this point that the plaintiffs have provided in the plaint is that the websites are aimed at profit-making given the substantially high donations that they have received. This, however, appears to be a very flawed approach of assessing the purpose of any use. Per this understanding, if I tomorrow provide free food to those who require it, and being impressed my actions someone provides me a gift or a donation to support my efforts, my entire endeavour would be termed as a commercial venture which is absurd. The donations do not take away from the fact that ‘purpose’ for which the use is being carried out by the defendants is indeed non-commercial and educational in nature.
The character of use, on the other hand, is a tricky question to assess. Admittedly the defendants are uploading the entirety of the articles as it is, there is a considerable difference in terms of the manner in which the work is being used. The websites provide a much more conveniently searchable database to access these works and all of that at a single portal, alongside its efficient search algorithm and easy downloads. This manner in which the works are used is much different from the original source, and is similar to the value addition by several paid databases such as JSTOR or HeinOnline. Its utility could be seen from the fact that even those with duly licensed access to various academic journals, use Sci-Hub in staggering numbers to access the same. It might, thus, be considered a transformative use of the work, and is a question the court should explicitly adjudicate upon.
Nature of the Work and Substantiality of Copying
The nature of the work involved is more factual than creative. Admittedly, there is certain creative element with which academic books and articles are written in that they bring in fresh perspectives to research, on a factual-creative spectrum they are closer to the former than the latter. The second factor, thus, might weigh in marginally in the defendants’ favour. The third factor, however, weighs against the defendant as the defendants are copying the entirety of the original work while putting it up on their website.
Effect on Potential Market
This final factor is the one that warrants for the most interesting discussion. The defendant websites have been present since over a decade where as per the plaintiffs almost the entirety of their copyrighted stuff has been made available for free. Despite this, there has barely been much impact on the revenues of the plaintiffs due to the same. Take, for instance, the specific case of Elsevier, which probably has the biggest stakes involved of the three. The statistics on the revenue and profits of Elsevier in the past few years (see here, here, and here) highlight that it has had a constant 2% growth rate in its revenues. In 2019 itself, its operating profits rose by 3% to reach a staggering figure of £982m. The higher profit growth rate compared to the revenue growth rate also indicates a fall in operating costs possibly due to greater shift to online publications than offline subscriptions. Moreover, these figures also indicate that the profit margins at which Elsevier operates hover around 37-38%. These staggering profit margins, even surpassing the likes of Apple, Google, and Amazon, make academic publishing as one of the most profitable industries in the world. (See here, here, here, and here. The readers might also refer to this interesting documentary explaining the “business of scholarship”.) This indicates that its commercial success has only been rising to exponential heights.
The reasonably possible reason behind the same would be the fact that the population that uses means such as the defendants’ websites is the one which would never use the plaintiffs’ services without that. For instance, if a student in a University has to write an academic paper and the University does not subscribe to these prominent databases, the student would rather write a non-contemporary article based on the highly limited material available in a library as against paying for the plaintiff’s databases to access state-of-the art research. This stems from the enormous costs involved in accessing these databases to the point that a single paper would cost thousands of rupees to an individual which majority of the population, especially in India, cannot afford. As the court noted with respect to academic publishers in the DU Photocopy Case, the market of such publishers is markedly different. In case of the plaintiffs, similarly, their target audience are the libraries that subscribe to their publications as against independent researchers or students that access defendant websites. In such light, this fourth factor would definitely weigh in favour of the defendants.
‘For the Purpose of’ Research
If upon an analysis of the above factors, the court concludes that defendants’ use in deed amounts to ‘fair dealing’, the next question would be to see if it falls within the scope of sub-section (a)(i). This provision allows for an exception to infringement if the use is ‘for the purpose of’, inter alia, private or personal research. The question that then arises is how the term ‘for the purpose of’ in this section should be interpreted. There are two possible interpretations to it. On the one hand it could be constructed in a very narrow manner to mean that this signifies that only the individual who is using the concerned copyrighted work is allowed to claim this exemption and not a third party that facilitates such access. The other interpretation to it is that anyone who facilitates use of a copyrighted work for research would also be able to claim this exception. The ordinary meaning of the term thus leads to certain ambiguity and secondary sources need to be looked at. Merriam-Webster defines ‘purpose’ to mean “something set up as an object or end to be attained”. Similar definitions are provided by other dictionaries such as Collins and Macmillan. These definitions accord a wide scope to include facilitation of research also within its ambit. Moreover, as the Delhi High Court in Wiley Eastern Ltd. v. Indian Institute of Management explained, “the basic purpose of Section 52 is to protect the freedom of expression under Article 19(1) of the Constitution of India- so that research, private study, criticism or review or reporting of current events could be protected.” This rationale behind the provision also supports a broad reading of the provision to include facilitation of private study or research. Interestingly, a similar argument was made in the case of Rupendra Kashyap v. Jiwan Publishing House in the context of publication of past year CBSE papers. The court denied this argument with the following reasoning:
“But, if a publisher publishes a book for commercial exploitation and in doing so infringes a Copyright, the defense under section 52(1)(a)(i) would not be available to such a publisher though the book published by him may be used or be meant for use in research or private study.”
Thus, the essence behind such rejection was not the fact that the provision was being invoked by a facilitator of research but the fact that such facilitator was using it for commercial gains. This indicates that the rationale was hinging more on the fact that the dealing was unfair in light of commercial exploitation. This is how two subsequent cases, them being Super Cassettes Industries Ltd. v. Chintamani Rao, and Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd., have interpreted Jiwan Publishing House. They both note:
“In respect of the defence of fair dealing, the Court applied the test of “commercial exploitation” and observed that if a publisher commercially exploits the original work, and in doing so, infringes the copyright, the defence of fair dealing would not be available to such a publisher, even if the book published by him is used, or meant to be used for research of private study.”
In light of these decisions, it appears that the provision could be interpreted to include such use of works that facilitates research. In such a scenario, the court’s decision in this case would then depend heavily on how it appreciates the various factors of ‘fair dealing’ as highlighted above. It must be noted that if the fair dealing argument of the defendants is accepted by the court, this would not set a particularly dangerous precedent as some might fear. This is because the assessment will be particular to the facts at hand which themselves are peculiar in nature. The two features that distinguish this case from other concerns of piracy are the non-profit nature of the venture and the lack of impact on the owner’s market which is not met in any other piracy case. As an aside, even in the UTV case while assessing the website blocking and granting dynamic injunction, the court specifically noted the severe impact of digital piracy on the movie industry, which is far from being the case at hand.
With this discussion on the applicability of the fair dealing defence in this post, and the background on the litigation and the dynamic injunction plea in Part I (here), in Part III (here) I shall deal with the exemption for education in the Copyright Act and the relief of interim injunction sought by the plaintiffs.