Introduction
A major development in the battle between shadow libraries like sci-hub and libgen (the ‘pirates’ of academia) and academic publishers like Elsevier came when the Delhi High Court (‘DHC’), in late August 2025, ordered in Elsevier Ltd. v Alexandra Elbakyan CS(COMM) 572/2020 the blocking of sci-hub and its mirror sites citing non-compliance with its previous order. Labelling sci-hub as a ‘rogue website,’ the DHC also cited its blocking in other countries like USA, France, Belgium, etc (¶22-23). Following this, the ongoing debate around problem of access to research papers/articles for academia gains another flavour, with many scholars criticising DHC’s move as one being detrimental for future of research in developing countries like India.
While the problem of access remains, this blog, firstly, uses the case study of sci-hub litigations in countries like USA, Sweden, France, India, etc. to introduce and analyse how rights of publishers and users are balanced and the nature of such balance. Secondly, it analyses the very reason shadow libraries like sci-hub exist – the presence of restrictive Digital Rights Management (‘DRM’) and Technological Protection Measures (‘TPMs’). It looks at literature trying to reconcile fair use and DRM/TPMs through solutions and asks if these solutions/measures might work in a developing country like India. Thirdly, because India is a signatory to the Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) and has ratified the WIPO Copyright Treaty (‘WCT’), this piece will ask if judicial measures that seek to possibly strike such a balance in DRM-fair use debate are compliant with International Law.
This piece argues that a case study of sci-hub litigations in India and elsewhere showed that balance was tilted heavily in favour of publishers, with limited discussion on access, freedom of expression of users, and fair use. This informs the DRM-fair use debate because courts are curtailing methods/websites that re-strike the balance between owners’ and users’ rights. So, surveying literature suggesting measures to reconcile fair use and DRM before consumers’ end-use, it was argued that most measures fail to consider Indian consumers, their willingness to pay, potential transfer of costs to them, and huge infrastructural and transactional costs for government. Till business models shift to being open access, Indian judiciary might step in and re-strike the balance, but they might go against international obligations under TRIPS and WCT.
Web of Litigations for ‘Pirates’: Sci-hub, Copyright Infringement and Circumvented TPMs ‘in spirit’
This part analyses the approaches and outcomes of sci-hub litigations around the world based on certain factors – the questions/issues addressed, is there a balance crafted between various conflicting rights, whether the balance is titled, and if there is any talk of access to works.
Foreign Courts
Back in 2017-18, US District Courts (at SDNY and East District of Virginia) ordered blocking of sci-hub and its mirror sites in Elsevier v. sci-hub because they were reproducing and distributing without permissions copyrighted works belonging to Elsevier and American Chemical Society. Following this, Munich’s District Court in 2019 ordered an Internet Service Provider (ISP) to block sci-hub and libgen because they were infringing the Plaintiffs’ (Elsevier and Sringer) exclusive copyrights in works. Similarly, a Court of First Instance at Paris, noted how sci-hub was a ‘self-proclaimed pirate platform’ facilitating copyright infringement, and ordered ISPs to block the same. The same result followed in courts of Belgium, Russia, Denmark, Sweden, and Spain.
All these orders/judgements focused on infringement of publishers’ rights due to sci-hub’s actions of reproducing and making available to public the works without owners’ permission/license, intermediary liability of ISPs, with European Courts especially focussing on whether the injunction was adequate, strictly necessary, and proportionate (since EU members are required under Art. 3(2) of the Directive 2004/48/EC to provide ‘effective, proportionate and dissuasive’ remedies). Under this prong, courts are required to balance conflicting rights; in the present case, that of property of copyright-holders, right to business of internet operators, and freedom of information of internet users. While doing this balancing exercise, courts of Germany (p. 22/ 628 of plaint in Elsevier v Alexandra Elbakyan) and France (p. 16/576 of plaint) only balanced the rights of internet operators/intermediaries and copyright holders, without considering the freedom of expression of users and addressing the problem of access to works.
However, Stockholm Patent and Market Court’s judgement stands on a different footing, expressly including the users’ freedom of information on internet (p.20/762 of plaint). Although noting the ISPs’ arguments that some content in sci-hub was legitimately available and that access to scientific publications was in public interest, it held that interests of publishers’ outweighed those of the users’ because predominant materials on these websites were made illegally available (p.25/767 of plaint).
Accompanying this limited discussion and unfavourable response on access, there was no discussion on fair use in any of these judgements either. Except for an order of the US District Court in Elsevier v. sci-hub granting preliminary injunction, which held that though fair use allows use of works for research purposes, taking of works is only allowed for legitimate purposes and not wholesale infringement. This ignores the fact that sci-hub is facilitating fair use of these scholarly works because it is nearly impossible for users to gain access, with no subscription to paywalled articles/journals or no method of circumventing TPMs, thus addressing inequality in access. This bridge, filled by pirates like sci-hub, is burned down by orders given in these foreign judgements.
Indian Court
India, as a developing country, had a chance to enquire about fair use and access, however, the recent order in Elsevier Ltd. v Alexandra Elbakyan by the DHC adopts an approach like other developed countries; it looks at sci-hub as a ‘rogue website’ (¶22) as facilitating infringement was its primary purpose and other countries had also blocked it (¶23). It is also surprising that although DHC relies on UTV Software Communication v 1337x.to (2019) for the test for ‘rogue websites,’ another holding in the case is not respected – the ‘necessity’ and ‘proportionate’ requirements to be met by a blocking order (¶77-78). The latter requirement would ask if the aims of blocking injunction outweighs effects on free expression. Latter could also cover free expression of users.
Also, while little attention is paid to fair use, (will likely appear in the DHC’s final judgement), access is surely affected. This was not what scholars hoped for – broad reading of the exception under Sec. 52(1)(i) of the Indian Copyright Act (‘the Act’) following from University of Oxford v Rameshwari Photocopy Services (2016), and sci-hub’s action falling under fair dealing exception.
In all these cases, it was seen that the balance was tilted in favour of copyright-owners (publishers/publishing houses), it might even be a vertical line, with no room for consumer access for fair use (if users cannot pay in developing countries). This affects the DRM-fair use debate in two ways. First, because fair use ensures balance of rights of copyright owners and users and ensures access to knowledge for few purposes, an enquiry which ignores this crucial fact that restrictive TPMs block access to works for even fair use and shadow libraries ensure this access by circumventing DRM, is lacking. Second, labelling sci-hub cases as ‘piracy’ even takes away the limited judicial arena to ensure proportionate injunctions and access to works, especially in developing nations like India.
The Tensions Between Fair Use and DRM
The case study enriches the DRM-fair use debate in this way – TPMs allow fair use on paper, but in practice, getting access to protected works is impossible for individual consumers and websites facilitating this access are blocked for copyright infringement.
With Section 65A and 65B of the Act, legislature incorporate DRM provisions to comply with the WIPO Copyright Treaty (‘WCT’), punishing anti-circumvention of TPMs with intention of infringement, and removal of rights management information. There is literature arguing that Indian DRM provisions differ from those in the US and EU because they exclude access control provisions, look for intention to infringe and not merely the act of TPM circumvention (which can be done if the Act allows). Some consider Sec. 65A to be a balanced approach, exploiting flexibility offered under WCT. The Standing Committee Report on the 2012 Amendments to the Act was also cognizant of how stringent DRM provisions in US and EU were criticised for preventing legitimate uses, however, as seen today through cases against shadow libraries in India, it is apparent that a structurally different provision and judicial discretion in interpreting the provision would hardly solve the problem of access and publications are protected by access control measures in countries like US, and are deployed in India too.
Lohmann and Scaria have questioned the ability of DRMs in preventing piracy and allowing price discrimination. Further, Rothchild and Scharf also argue how in the process of addressing market failure for publishers and authors, DRM systems create another kind of market failure – by completely restricting permitted uses, the significant external benefits of possible original future works cannot be internalized.
One may ask if there are ways to reconcile DRM and fair use. The literature suggests certain ways and these will now be examined in Indian context.
Fair Use by Design
Burk and Cohen propose a mixed infrastructure combining automated fair use defaults based on “customary norms of personal non-commercial use” with a third party intermediary (like escrow agents having access keys) that allows more uses than those accounted for in the automated fair uses. If copyright owners refuse to provide a system/mechanism for remote authorisation, they propose that users will be free to circumvent the TPMs for fair use.
Contextualising this in Indian education sector, automatic fair use defaults cannot just be providing access for certain parts and/or periods, since content used for research purposes requires complete access for a significantly longer time, mirroring use if content was procured legally. This would indicate having defaults provide entire articles for free, if it falls under Sec. 52(1)(a) or 52(1)(i) in the Act. With over a million daily downloads in sci-hub now and over 13 million download requests for research papers in 2017, publishing conglomerates may risk losing revenue, and thus, think of having less defaults and rely more on third-party decision-makers for authorising access. With education, it becomes complex as publishers would seek to narrow automatic defaults, and third-party authorisation being costly and possibly time-taking due to magnitude of requests, users might be forced to circumvent TPMs (without any consequences). However, with no resources for unilaterally asserting fair use rights, access, research and expression are hindered.
Market-based Economic Solutions
Bell proposes that implementing automated rights management and tracking consumer use on the internet will help copyright-owners create a quasi-compulsory license system–making billing explicit, allowing better price discrimination, and improving access in this ‘fared’ system dominated by contract law. This piece argues that this measure increases utility for those involved in these contracts – publishers and users who can afford the bills – and on terms tilted in favour of publishers with more bargaining power. Everyone else is worse off, like users who cannot afford subscriptions at all, and authors who could’ve gained from better reach of their works.
Denicola and Samuelson & Schultz propose mandatory disclosure of use/effects of TPMs, this information will cause consumers to refrain from using restrictive TPMs, making them exit the market. Notice requirement could be enforced by the market, self-regulation or making legal protection conditional on adequate/effective notice. However, it is argued that, firstly, developing countries face problems of access, a notice about TPMs informing customers of allowed uses is useless if the consumers cannot afford the same. Secondly, for education sector generally, the kinds of TPMs are different from those used in movies, like access control and IP authentication measures (only when subscription purchased). TPMs here are unlikely to appear on a spectrum; they either allow more access or they don’t. In such cases, fair use will depend upon heterogeneous consumers and how much demand of subscription remains. Since publishers have the upper hand, they can still gain from contracts with institutions, affecting access for many who cannot afford.
Legal/Regulatory Solutions
Kerr, Maurushat & Tacit argue for supplementing TPMs with ‘access-to-a-work’ right and Samuelson supports circumventing of TPMs for public interest. The former, as argued by Prakash, is present in the Spanish law under/Art. 161 wherein copyright-holders must incorporate voluntary measures permitting access for limitations enshrined like private use and illustration for teaching. If not done, owners can be sued in civil courts. A similar binding provision might benefit India if incorporated at all, but this comes with the caveat that in absence of voluntary measures by publishers, consumers must approach courts, this creates additional costs for consumers, which might be unfeasible. It is suggested that if this is incorporated in Indian law, the costs must be transferred to the State or Copyright Office instead of users. The measure Samuelson suggests is already present under/Sec. 65A of the Act for copy control measures, but the means for circumventing are often not available to users.
Rothchild proposes internalization of social costs of TPMs through a TPM tax or a cap-and-trade system, essentially limiting TPMs through regulating its market. However, former allows publishing conglomerates to transfer costs to consumers in India, who have inelastic demand for research papers and books, making it more unaffordable for many institutions/students. Further, the tax assumes that publishers would shift to less restrictive measures, but in case of education, this could mean either removing access controls (unlikely) or allowing temporal access for some/entire article (which jeopardizes research). Additionally, a capping system might not work since ‘harm to fair use’ in non-quantifiable to calculate a cap.
India’s Initiative
Open access movements aim to make publicly funded research freely available to all, addressing exorbitant subscription costs and problem of access. While there are open-access journals, authors are charged high article processing charges, this increases profits for journals. Past efforts in India like the Department of Science and Technology-Department of Biotechnology’s Open Access policy (2014), which mandated depositing accepted articles funded by these departments in institutional/central repositories, were not implemented properly.
Indian government’s ‘One Nation One Subscription’ (‘ONOS’) scheme attempts to address ‘access gap’ by centrally negotiating bulk subscriptions for public institutions. However, it is criticised as a ‘piecemeal solution’ leaving out private institutions/centres, covering only 30 publishing houses, failing to address structural flaws like dependence on foreign publishers, and transfer of copyright-ownership from authors to journals, perpetuating their monopoly. Some scholars suggest that the long-term solution is open access to research publications, and that authors be given a secondary publishing right (like that in France) regardless of their contract with publishers.
Approval from Indian and International Law
It was argued that most of the solutions suggested for reconciling fair use and DRM in existing literature may not work in the Indian context, leaving the access gap as is. However, some which may work, like gradual move towards open access and a binding access-to-a-work right enforceable by State, require proper planning and initiatives from the government. One might then ask if in meanwhile, solutions and a balance between rights (affected by DRM) should come from Courts in cases against sci-hub.
While it has been argued that Indian jurisprudence on fair use under/Sections 52(1)(a) and 52(1)(i) and reading proportionality requirement for injunctions with Art. 19(1)(a) and Art. 21 of Constitution allows Courts to hold that Elbakyan’s acts of distributing and communicating to public copyrighted works without permission/license falls under fair use. However, such move is unsupported by TRIPS and WCT because of its incompatibility with the three-step test u/Art. 13 TRIPS and Art. 10(1) WCT.
As per WTO’s Panel Report in USA – S.110(5) of the Copyright Act, a Panel may have to examine firstly, if allowing sci-hub provide free access to copyrighted papers by circumventing TPMs is a ‘certain special case.’ This does not seem to be narrow in scope and reach, since it will benefit millions lacking access to such materials (¶6.112). Secondly, the limit read in under/Sec. 52(1)(i) will interfere with publishers’ normal exploitation of work since this area of market is already exploited heavily by publishing houses (¶6.177). The complexity here is that sci-hub is competing with publishers’ use of the work, but its actions are facilitating exempted uses in the Act (though they don’t collect personal information as mandated u/Section 65A(2)(a) proviso) and TRIPS. It is unclear if this could be called competing with non-exempted uses of the work. Lastly, sci-hub causes unreasonable loss of income to publishers (¶6.229), affecting their legitimate interests. Thus, DHC’s (unlikely) decision of supporting sci-hub and restoring the balance between rights of users and owners (titled by DRM) is not supported by international law. This analysis highlights how international law assumes the status quo of publishers’ monopoly over author’s works (who don’t have copyright to their own works) to be their ‘legitimate interests,’ creating hinderances to judicial changes like these from developing countries trying to re-strike the balance.
Conclusion
This piece, through case study of litigations against sci-hub, analysed the tilted balance between rights of copyright-owners and users, resulting in curtailment of fair use and research. After analysing solutions proposed for reconciling DRM and fair use before end-use, it argued that most of the measures might be unworkable for Indian researcher and education environment. Alternatively, if this balance comes from courts, it might face opposition from international jurisprudence. As highlighted before and suggested by literature, the solution is open access, and replacement of current business models which allow publishers to monopolise. While this happens (if at all), re-striking balance between users’ and publishers’ rights may be addressed by both courts and policy-making, but as shown in this piece, they are either going the other way (like DHC) or not suited to Indian realities.
(This post has been authored by Aditi Navrang, fifth-year student at NLSIU, Bangalore)
CITE AS: Aditi Navrang ‘The (Un)Holy Trinity – ‘Pirates’ of the Academia, Digital Rights Management, and Fair Use in India’ (The Contemporary Law Forum, 9 November 2025) <https://tclf.in/2025/11/09/the-unholy-trinity-pirates-of-the-academia-digital-rights-management-and-fair-use-in-india/>date of access.