The recent lawsuit filed by academic publishers against Sci-Hub, a pirate database containing over 84 million academic articles, has provoked yet another debate over the role of copyright in the context of academic or educational content. A large number of Indian academics have thrown their weight behind Sci-Hub on the grounds that academic publishers are charging outrageously high prices for access to their databases containing millions of articles published in peer-reviewed journals.
Facts bear out some of these allegations since some of the top academic publishers reportedly make 40% profit margins. However, the fact that some publishers are making high profits is not a good enough reason for the High Court to deny them the injunction they seek, especially against a self-confessed pirate website.
Rather it may be time to start talking about reforming some aspects of copyright law to rein in the prices being charged by some of these publishers especially since most Indian universities are public universities which spend taxpayer money to purchase subscriptions to these databases.
Currently, E-ShodhSindhu, which is the Central government funded consortium that purchases a basic level of access to major academic databases for all public universities in India spends between Rs 180 crores to Rs 240 crores every year. Individual universities then spend additional sums to buy access to more databases. For the IITs that additional sum can be in the neighbourhood of Rs 18 crores.
The Berne Convention
This is not the first time India has faced the challenge of high prices for accessing copyrighted educational content. In the 1960s, when MC Chagla, the former Chief Justice of the Bombay High Court, was made the Union education minister, he wanted to reform Indian copyright law so that the government could control the price of educational textbooks for college students.
At the time Chagla was limited in his ability to reform Indian copyright law because the British had made India a signatory to the Berne Convention for the Protection of Literary and Artistic Works, 1886 during colonial rule and unlike other developing countries like Indonesia, India did not withdraw from the Berne Convention after winning its independence.
Thanks to Chagla’s political leadership, India led the charge to reform the Berne Convention to ensure that developing countries had certain flexibilities under copyright law to meet their educational requirements. By doing so India made access to knowledge a political issue long before the A2K movement came into vogue in the West.
After a long and tumultuous series of diplomatic negotiations in Stockholm in 1967 and in Paris in 1971, the Berne Convention was amended to allow developing countries like India the right to create certain exceptions under copyright law to cater to their educational needs. The solution manifested itself in the Copyright Act, 1957 in the form of Section 32A.
This provision allows for third parties to seek permission from the Copyright Board to reproduce books required for “systemic instructional activities” if the books in question were unavailable in India or if they were priced unreasonably for the Indian market.
In either case, the Copyright Board would determine a royalty that would be payable to the copyright owner to compensate them for the use of their copyrighted content. It is a different matter that nobody has ever requested a licence under this provision, most likely because its introduction in Indian law coincided with the widespread use of photocopying machines in India.
The essence of Section 32A provides a time-tested solution to cater to the access problem that India will inevitably face once Sci-Hub shuts down due to any number of reasons. The problem, however, is that Section 32A was designed for the world of print where knowledge was accessed through books that were printed rather than through digital databases that are licensed across continents.
For example, the American Chemical Society is based in the United States and enters into contracts with Indian universities under American law. The main problem in this context is the fact that virtually all the big academic publishers and their databases lie far beyond the territorial jurisdiction of Indian courts and they are likely to simply ignore any orders of Indian courts to provide access to their databases at a court-mandated royalty rate.
Unique challenges
It is no secret that digital business models have posed unique challenges to the sovereignty of the state, be it in the field of taxation or data protection or law enforcement. The common solution offered in the context of data is a “data localisation” requirement that forces a physical presence on Indian soil that makes it easier for the state to exercise its coercive powers to ensure compliance with the law of the land.
The copyright equivalent of this approach, as proposed by us, is a “registration” requirement wherein foreign copyright owners, especially large database owners are required to register their works in India in order to receive copyright protection. That registration should be made contingent on the copyright owner’s compliance with Indian laws and judicial decrees.
Once such a condition exists, the foreign academic databases will be forced to comply with decrees of Indian courts fixing the royalty rate for these databases, failing which they would lose their copyrights in India.
Such a “registration” requirement will most certainly provoke an outcry from the European countries who were the original signatories to the Berne Convention which has a specific clause prohibiting signatory countries from requiring registration as an essential condition to protect copyright law in member countries. As a result, today a copyright is deemed to exist automatically in a work from the date of publication.
If India were to reintroduce such a provision in its law, it is virtually guaranteed that the West will initiate action against India before the World Trade Organization for violating the Berne Convention, which is why India must seriously consider pushing for an amendment to the Berne Convention that allows countries to introduce a registration requirement under their domestic copyright law.
If not, countries like India which are major importers of academic knowledge will have almost no ability to exercise their sovereign powers against publishers who are located in the West and engage in unreasonable pricing or other unlawful conduct. India achieved significant diplomatic victories while leading the charge to amend the Berne Convention in 1967 and 1971. There is no reason it cannot repeat this feat in the 21st century.
Prashant Reddy is an IP lawyer and co-author of Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (OUP 2017). Vishal Rakhecha is a student at NALSAR University.
