When Knowledge Meets Legal Restraint: A Critique of the Delhi High Court’s Order in Elsevier v. Elbakyan

Introduction

The fundamental purpose of copyright law is the protection of original expressions of ideas, stemming from principles of fair play. But copyright law is not restricted to just such protections. It also involves a bargain between the need to foster innovation by incentivising the producers of intellectual property, and the interests of the public with respect to their rights to access the intellectual property. Many cases have arisen due to this tension, including the recent Elsevier Ltd. & Ors. v. Alexandra Elbakyan & Ors. (‘Elsevier’) case in the Delhi High Court.

This case was brought before the court when, in December 2020, three top-tier publishers, Elsevier Ltd, Wiley India Pvt. Ltd. and the American Chemical Society filed a lawsuit alleging that the copyright of their published material was being breached by Sci-Hub and its mirror websites. These are websites that allow the public unauthorised and free access to various journal articles and books which are paywalled by publishers, and are also collectively referred to as ‘shadow libraries’. On 19 August 2025, the latest hearing in the case, the court issued an order banning access to these websites [Elsevier (26.1)].

This article argues that this decision illustrates a faulty reliance on precedent and undermines the exceptions to infringement laid out in Indian copyright jurisdiction. In what follows, I will, firstly, analyse the court’s application of the tests laid out in the 2019 UTV Software Communication Ltd. & Ors. v. 1337x. To. & Ors. (‘UTV’) case. Secondly, I will elaborate upon the progressive judicial culture surrounding the distribution of copyrighted educational materials. Thirdly, I will discuss the exceptions available for educational purposes to argue that the defendants’ activities aptly fall under the ambit of these provisions.

Faulty Reliance on Precedence

The order issued in Elsevier relied heavily on the UTV case. This case similarly dealt with the issue of copyright infringement via the internet, and it laid down principles to help illustrate when a website can be categorised as a ‘rogue website’ [UTV (59)]. In this section, I argue that the Delhi High Court’s reliance on these principles to classify Sci-Hub as rogue is a simplistic borrowing from this precedent due to a stark difference between the facts of the cases.

UTV dealt with the issue of the defendants circulating the plaintiff’s cinematographic films online. The court ultimately ruled these websites were infringing on the copyright of the plaintiffs and classified these websites as ‘rogue’ based on several factors it observed, but the ones relied on in Elsevier are – firstly, whether the primary purpose of the website is to commit infringement, secondly, the flagrancy of the infringement, and thirdly, whether access to the online locations has been blocked via court orders in other countries.

With respect to the first and the second factors, the purpose for which these websites were circulating copyrighted films is manifestly clear. These websites were riddled with advertisements, evidently trying to gain a commercial benefit from distributing the plaintiff’s content. Furthermore, such distribution of films cannot be tied to any ideological reasons or causes of ‘social good’ [UTV (51)], clearly leaving the only conceivable purpose as copyright infringement, which is made even more flagrant because of the commercial profit accruing to these websites. On the other hand, Sci-Hub and other such websites disseminate scholarly and research materials for free; their purpose is evidently educational, and arguably even necessary, as numerous researchers and students in India are dependent on these for access to materials in the absence of any viable alternative. The order issued in Elsevier failed to consider these public interest implications and the absence of any commercial benefit, which suggest a primary purpose other than infringing on the plaintiff’s copyright.

With respect to the third factor, similar orders blocking these websites have been issued in eleven jurisdictions, ten of them being European, and one being in the United States. However, I argue that plain reliance on these decisions to classify these libraries as ‘rogue’ is overly simplistic and falls short of considering the Indian legal and social landscape. This is because the Indian legal landscape is one of progressive judicial interpretations of exceptions for educational purposes. These will be further elaborated upon in the next section.

Progressive Culture of Indian Copyright Law

In India, the rights of copyright owners are protected by The Copyright Act, 1957(‘Act’), specifically Section 14 of the Act, which grants to owners exclusive rights, including rights to reproduce the work, issue copies of the work, communicate the work to the public, etc. But these rights are not natural; these are statutory and subject to several exceptions enumerated in Section 52. Their balance is designed, as per the landmark University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr (‘Rameshwari’) case, to stimulate activity and progress, foster the intellectual enrichment of the public, and to increase, not decrease, the harvest of knowledge [Rameshwari (80)]. The court also emphasised the promotion of equitable access to education, and even rejected the quantitative four-pronged test used in foreign jurisdictions, instead analysing the purpose of the use of copyrighted work to determine ‘fairness’ [Rameshwari (32)].

This sentiment of the need to encourage and not impede the public dissemination of knowledge is further underscored in a previous judgement of the Delhi High Court (‘Wiley’), which even emphasised the protection of research, private study, criticism, review and reporting of current events as the basic purpose of Section 52. The court here also provided a constitutional basis under the right to freedom of speech and expression enshrined in Article 19(1), further signifying the protection of these exceptions as necessary for the Indian copyright system [Wiley (19)].

It is now important to understand the role these shadow libraries play in the distribution of research. In a world where even liberally funded universities in the West struggle to easily access materials, the conditions of researchers in the Global South are far worse. Researchers here have higher difficulty accessing academic materials due to the high costs of subscription and distribution mechanisms, and shadow libraries inexplicably provided a remedy for this. These libraries also become essential for quality production of knowledge in developing jurisdictions. Diversifying the reception of research output has a corollary impact on the pool of research input, allowing researchers to better identify issues and work on them. It is therefore argued that these libraries are necessary for equitable access to and production of knowledge, a sentiment underscored by the courts in India, and should therefore be allowed to operate. Applying American or European standards here without accounting for contextual differences only prioritises mechanical comparison in the face of a developed judicial convention.

 Exception for Educational Purposes

Section 52(1)(i)(i) of the Act protects the reproduction of any work by a teacher or pupil during the course of instruction. The words ‘course of instruction’ are not limited to use for instruction in the classroom, but extend to use during the entire process of education in a semester [Rameshwari (13)]. The Supreme Court relied on Longman Group Ltd. v. Carrington Technical Institute Board of Governors, which opined that as long as the copying formed part of and arose out of the course of instruction, it is normally included in the ‘course of instruction’ [Rameshwari (50)].

These principles lay out a clear case for the inclusion of the activities by these shadow libraries as within the ‘course of instruction’. Education does not take place in silos, where referring to such works is necessitated for students and researchers by the need to write books, dissertations, scholarly articles, and even to just instruct and understand the course material in the syllabus. This is similar to how in Rameshwari, the teachers and students used a photocopying service to copy and distribute textbooks of foreign publishers. In the context of Elsevier, teachers and students rely on these shadow libraries as intermediaries in the absence of any alternative and for purposes arising in their course of instruction. It is therefore argued that, just as Rameshwari photocopying services in Rameshwari was not held liable for infringement and was classified as an intermediary used by ‘a teacher or a pupil’, a similar classification should be done for Sci-Hub.

The court in Rameshwari also considered ‘fairness’ under Section 52 [Rameshwari (31)]. As mentioned above, the court rejected the foreign four-pronged test, which takes into consideration the amount of content copied from the work, and instead held that the copying is fair as long as the extent to which the work was copied was justified for the purpose for which it was copied [Rameshwari (33)]. Applying that to Elsevier, where the purpose of copying is evidently to enable free and complete access to otherwise paywalled scholarly materials to benefit students and researchers, copying of the plaintiff’s published materials, even if done in entirety, is justified and should therefore be considered as ‘fair use’ for educational purposes.

Conclusion

In sum, the Delhi High Court’s decision fails to account for the nuanced manner in which Indian copyright law attempts to balance the protection of owners’ rights with the promotion of public access to knowledge. The court mechanically relied on the principles laid down in UTV to issue an order which prioritises foreign decisions over a proper analysis of the nature and purpose of infringement and the exceptions surrounding educational materials recognised in previous Indian cases. The rationale behind Rameshwari shows that India’s copyright jurisprudence favours equitable access to education and underscores a need to foster knowledge, not to inhibit it. Given the limited access to academic materials in India and the extremely high costs of distribution and subscription, shadow libraries are essential to facilitate researchers and students for scholarly and scientific development. When interpreted through the lens of Section 52(1)(i) of the Act, the activities of Sci-Hub align with the educational purpose exception and come under fair use. Therefore, the Elsevier order represents an erroneous interpretation of the delicate balance designed by Indian jurisprudence and ignores the public interest implications associated with such a decision, ultimately opening a can of worms for the Indian public at large.

(This post has been authored by Tvesha Chauhan, a 2nd-year student student at NLSIU, Bangalore)

CITE AS: Tvesha Chauhan, ‘When Knowledge Meets Legal Restraint: A Critique of the Delhi High Court’s Order in Elsevier v. Elbakyan’ (The Contemporary Law Forum, 2 December 2025) <https://tclf.in/2025/12/01/https://tclf.in/2025/12/01/mediation-and-justice-in-india-the-promise-of-section-5-of-the-mediation-act-2023/>date of access.