In the light of the recent US copyright case revolving around the free e-lending facility of
Internet Archive, what should be the limits on ‘fair use’ of copyrighted works by students and academicians?
Markets and Myths: Rebalancing and Reshaping Fair Use in the Age of Shadow Libraries
Table of Contents
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Transforming Fair Use or Deforming It?: Recent Trends in Fair Use Analysis 3
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Shadow Libraries v. Publishers: Contextualising the Fair Use Analysis in the Sci-Hub, LibGen Litigation in India 7
i. Shadow Libraries are Causing Losses to Publishers! Or Are They?: An Empirical Analysis 8
ii. A Necessary Supplement, Not Substitute: Shadow Libraries Filling the Access Gap 15
iii. Beyond the Paywall, Knowledge for All: The Crucial Role of
Public Interest in Market Impact Assessment 16
The US Second Circuit ruling against Internet Archive in Hachette Book Group v. Internet Archives (IA) has spurred global debates on digitization of copyrighted materials and knowledge’s open access. IA is one of the major digital libraries which is based on controlled digital lending (CDL) i.e., only the number of books that were physically available with IA were lent out in the form of digital copies. The court employed the four factor fair use analysis to conclude that IA’s use was non-transformative as digital copies did not add any new purpose, meaning, or character to the original works and that digitizing entire books undermined market demand. However, the court here did not conduct a thorough analysis of the fourth factor. Despite data produced by IA demonstrating that there existed no correlation between its CDL and publishers’ eBooks sale, the court just “logically” inferred that the books will act as a substitute to original books.1 A more nuanced and comprehensive economic assessment should have been adopted over relying on assumption of market impact.
This case has reignited debates around the scope and limits of ‘fair use’, including the balance between copyright protections and public access to knowledge. Parallelly, in India, litigation has emerged against shadow libraries- Sci-Hub and Library Genesis (“LibGen”) by academic publishers like Elsevier, cropping up similar issues. In the context of India, a country with significant disparities in access to academic resources, these issues take on even greater urgency. With its burgeoning academic community and limited institutional access to expensive subscription-based content, the reliance on these alternative avenues (shadow libraries) has grown exponentially.
In this paper, we will first, analyse recent trends in fair use analysis that have shown an extreme deviation in favour of ‘transformative use’ to the disadvantage of the other factors. Second, we advocate for a balanced approach in evaluating fair use with significance accorded to the two most important factors- purpose and nature of use, including transformative use and non- commercial use (first factor) and the effect on the market (fourth factor). Finally, we situate this analysis in the context of the Sci-Hub litigation. Using an empirical lens, we argue that the limits of fair use should be expanded to allow for platforms like Sci-Hub and LibGen because they fit the two primary factors of fair use analysis, since they are entirely non- commercial in nature and acting as supplements, not substitutes, they have zero to minimal effect on publishers’ revenues. In this, we also argue that these platforms provide immense
1 664 F. Supp. 3d 370 (S.D.N.Y. 2023).
public benefit and democratise access to education and research, which should be considered under the market effect analysis.
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In the United States, the four factor test forms the foundation of evaluating fair use in the law of copyright, considering:
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the purpose and character of the use, including commercial or educational motives;
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the nature of the copyrighted work;
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the amount and substantiality of the portion used; and
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the effect of the use on the market or value of the original work.2
In India, Section 52(1)(a) addresses fair dealing as the primary defence against copyright infringement. The courts in India have incorporated the U.S. four factor test into fair dealing analysis, as held in India TV Independent News Service v. Yashraj Films.3
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Transforming Fair Use or Deforming It?: Recent Trends in Fair Use
Analysis
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The four-factor fair use test is balanced on paper, but judicial focus has often concentrated on the first factor and the fourth factor. Initially, the fourth factor—impact on the market—was widely considered the most significant, as the Supreme Court of the United States (“SCOTUS”) highlighted in Harper & Row, Publishers v. Nation Enterprises.4 Yet over time, emphasis on the first factor, specifically the “transformative” nature of the use, has increasingly influenced fair use outcomes, often overshadowing the fourth factor's importance in some decisions.5
After the SCOTUS’s adoption of “transformative use” as the first factor to evaluate the question of fair use, a range of lower court decisions expanded the ambit of “transformative use” analysis to engulf its sub-test of “commercial use” and all three other factors.6 When the remaining components degenerated into restatements of the first, a finding of “transformativeness”
2 Copyright Law of the United States, 1976, s. 107.
5 Barton Beebe, “An Empirical Study of U.S. Copyright Fair Use Opinions Updated, 1978-2019” 10 New York University Journal of Intellectual Property and Entertainment Law (2020).
6 Barton Beebe, “An Empirical Study of U.S. Copyright Fair Use Opinions, 1978– 2005” 156 U. PA. L. REV. 549 (2008).
frequently predicted the final result. This strong foundation of the first factor was laid down in the 1994 case of Campbell v. Acuff-Rose Music in its fair use analysis.7 The court in Campbell noted that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” This emphasis contradicted the findings of previous cases which have focused upon the impact on the market or value of the copyrighted material as the dominant factor where in the landmark case of Harper & Row had identified that the fourth factor as the most important factor in evaluating fair use.8 In Perfect 10 v. Amazon.com, the court held Google’s display of thumbnail to be transformative as it served a different purpose, the court discounted other fair use factors by emphasizing that transformative use outweighs other fair use factors.9 By an empirical analysis done by Beebe10 and Liu11, it was found that between the periods of 1991-2017, in total of 346 District Court opinions, Transformative use was heavily relied upon in 246 opinions leading to approximately 71% of the total opinions. Further post Campbell, Out of total 310 fair use District Court opinions, 242 relied on transformative use leading to 78% of the total fair use opinions.12 The analysis around win rates for Transformative use findings reveals that defendants who successfully proves their use to be transformative, has high rate of their use being qualified as fair use.13 The findings also demonstrated that transformative use frequently resulted in courts downplaying the significance of factor like the amount of copying or the market effect as observed in cases such as perfect 10 and Authors Guild.14
Additionally, in Bill Graham Archives v. Dorling Kindersley Ltd., it was held that posters served a different purpose in the book, prioritizing transformative use over the market harm factor which would have otherwise weighed against fair use.15 However, in Kienitz v. Sconnie Nation LLC, this over reliance on the first factor was heavily criticized by the court.16 The court reasoned that relying heavily on first factor could override statutory protection for derivative works.
9 508 F.3d 1146 (9th Cir. 2007).
11 Jiarui Liu, “An Empirical Study of Transformative Use in Copyright Law” 22 Stan. Tech. L. Rev. 166 (2019).
13 Clark D. Asay, Arielle Sloan, et.al., “Is Transformative Use Eating the World?” 61 Boston College Law Review 905 (2020).
15 448 F.3d 605 (2d Cir. 2006).
16 766 F.3d 756 (7th Cir. 2014).
This trend contradicts the original intent of Congress to evaluate fair use of the material through all the factors. Further, fair use has moved from its foundations in innovation and commentary to more expansive interpretations that allow for substantial copying due to transformative use, particularly when it involves functional alterations like in Google Books.17 The facts and case studies show that courts support fair use if the usage is considered transformative, even if it damages the original work's prospective market. The fourth component, which seeks to safeguard the market for copyright holders, particularly the market for derivative works, may be compromised by this strategy.18 As secondary users increasingly take advantage of this defence, copyright owners are left in a state of uncertainty due to the overemphasis on transformative usage. Copyright holders may find it difficult to protect their works, particularly from technology giants who can assert functional transformation, as courts are more likely to accept uses including function and reused content.19
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In India, the interpretation of fair dealing under the first factor— purpose and character of use
— is gradually aligning with the transformative use criterion seen in U.S. jurisprudence. Indian courts have acknowledged that where a secondary work transforms the original by presenting a distinct purpose or character, it may be protected under fair dealing, even though the copyright statute does not explicitly mandate this test.
In R.G. Anand v. Delux Films, the Indian Supreme Court held that a work is non-infringing if the theme remains the same but is presented with substantial originality. The Court emphasized that a transformative treatment could render the secondary work as distinct enough to avoid liability.20 This decision laid early groundwork for a transformative-based analysis, even though it was not explicitly labelled as such.
Later, in University of Oxford v. Narendra Publishing House, the Delhi HC further incorporated the transformative use criterion, influenced by U.S. cases such as Campbell. Justice Bhatt postulated that fair dealing requires a secondary work to serve a purpose “substantially different” from that of the original, thus emphasizing transformativeness as central to fair dealing in India.21
17 804 F.3d 202 (2nd Cir. 2015).
The Kerala HC’s decision in Civic Chandran v. Ammini Amma reinforced this perspective by allowing transformative copying that served a purpose distinct from the original. In this case, the court ruled that reproducing parts of a play for critique and commentary aligned with fair dealing principles, emphasizing that transformative nature, rather than verbatim copying, could justify fair dealing. Importantly, the Court added that the term "fair dealing" implies extracts, not wholesale reproductions, underscoring a restraint on verbatim copying in favour of transformative and critical uses.22
However, as already argued above, transformative use alone does not guarantee a minimal market effect, and excessive focus on it risks diluting the fundamental purpose of fair use by prioritizing recontextualization over market considerations.23 Courts may grant fair use to transformative works without fully assessing their potential market harm, which could lead to unfair erosion of the original creator’s rights and incentives.24 Similarly, this argument is also prudent in the Indian context to ensure a balanced fair dealing analysis.
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Rebalancing the Scales: A Fairer Use of Fair Use
In the former section, we have highlighted how lending excessive focus and credence to “transformative use” risks eroding the fourth factor, as well as the other factors under fair use analysis. In this regard, to restore balance in fair use analysis, we argue that courts must equally weigh both the transformative purpose under the first factor and the potential market effect under the fourth. This balanced approach allows courts to fairly address the competing interests of copyright holders and secondary users while safeguarding the incentive structures copyright aims to protect.
Furthermore, within the first factor, commercial character of the use must remain a critical component. Liu contends that commerciality often indicates the user’s intent to benefit economically, which should weigh against fair use even if transformative elements are present.25
An inquiry into whether the use is commercial or non-commercial, paired with an assessment of market harm, aligns fair use determinations more closely with copyright’s foundational
24 Joseph P. Liu, “Two-Factor Fair Use” 31 Colum JL & Arts 571 (2008).
goals. By focusing on these aspects, courts can encourage uses that serve public interest without allowing excessive exploitation of copyrighted works that might harm creators.26
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Shadow Libraries v. Publishers: Contextualising the Fair Use Analysis in the Sci-Hub, LibGen Litigation in India
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The First Factor: Assessing Non-Commercial Use
In fair use analysis, non-commercial use, while not necessarily ensuring fair use, significantly strengthens the defendant’s position, especially for educational or public access purposes. In Harper & Row, the SCOTUS ruled that commercial exploitation “without paying the customary price” weighs heavily against fair use. This is crucial in nonprofit cases where indirect economic benefits exist but do not equate to direct financial exploitation.27 Likewise, in American Society for Testing and Materials v. Public Resource.Org., nonprofit activities that provide public access without direct profit were found to favour fair use.28
In Sony Corp. v. Universal City Studios, it was recognized that non-commercial public access objectives favoured fair use analysis, particularly when benefits to the public were clear and direct profits were absent.29 Courts often find that nonprofits engaged in democratizing knowledge, like digital libraries, meet fair use standards, provided incidental economic benefits do not compete with or replace the original market of the copyright holders.30
These cases support the argument that non-commercial use, particularly in nonprofit and educational contexts, should be given strong weight in fair use evaluations when it serves public interest without usurping the copyright holder's market.
Similarly, in Indian fair dealing jurisprudence, the non-commercial nature of use has traditionally played a significant role in defining whether a work qualifies for the fair dealing defence. Courts have emphasized that non-commercial use, especially in educational or research contexts, is often permissible under copyright law.31 For instance, in the University of Oxford v. Rameshwari Photocopy Services (“DU Photocopy case”), the Delhi HC, albeit in the context of the ‘educational use’ exception, held that photocopying for academic use, even by an intermediary, did not constitute commercial exploitation, as it was not driven by profit
28 597 F. Supp. 3d 213 (D.D.C. 2022).
31 Chelsea Sawlani, “Copyright, Culture and Contemporary Debates: A Jurisprudential Analysis of Fair Dealing in India” 28 Journal of Intellectual Property Rights 200 (2023).
motives.32 Similarly, in Rupendra Kashyap v. Jiwan Publishing House, the court clarified that fair dealing applies when the use is non-commercial, specifically highlighting that publishers who exploit a work commercially, even for educational purposes, cannot claim fair dealing.33
The courts' recognition of non-commercial use in prior rulings suggests that the Sci-Hub and LibGen cases should weigh heavily in favour of these platforms. Both platforms operate on a non-commercial model, providing free access to paywalled academic articles without any profit motive. This directly aligns with the fair dealing defence, where the first factor favours non-commercial, educational or research purposes.
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The Fourth Factor: Decoding the Effect of Shadow Libraries on the
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Publishers’ Market
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SHADOW LIBRARIES ARE CAUSING LOSSES TO PUBLISHERS! OR ARE THEY?: AN
Empirical Analysis
In this section, we provide an empirical market effect analysis using graphical and tabular representation, focusing on the relationship between LibGen and Sci-Hub download trends and the revenue of publishing houses from 2011 to 2023. Using year-over-year comparisons and growth trends, this analysis demonstrates how unauthorized digital downloads lack negative correlation with revenue shifts in the publishing industry.
Research Methodology
The data for LibGen has been derived for the year 2018-2021 from the site of Internet Archives where the data log has been classified into various genres including educational, fiction, and scientific.34 The additional data for 2022 and 2023 has been derived from the parent repository of Internet Archive.35 The data for the publication houses in India has been derived from Statista’s Publication Industry in India which has the revenue logs for major educational publishers.36 The download logs for Sci-Hub has been derived from its official website for the
34 Files for LibGenlang, available at: https://archive.org/download/LibGenlang_2021-11-27 (last visited on November 10, 2024).
35 Library Genesis snapshot with basic language data, available at: https://archive.org/details/LibGenlang_2021- 11-27 (last visited on November 10, 2024).
36 Publishing Industry in India- statistics & facts, available at: https://www.statista.com/topics/12826/publishing- industry-in-india/#topicOverview (last visited on November 10, 2024).
year 2011-1337, 2015 – 201638, and 2017 – 2019.39 The data that has been analysed for Publishing Industry consist of:
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Total revenue figures, showing year-over-year growth.
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Revenue breakdowns by format (digital and print).
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Annual growth rates, highlighting market resilience even in challenging years (e.g., 2020).
Similarly, the data for LibGen and Sci-Hub consists of:
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Download volumes segmented by content type (educational, scientific, fiction).
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Growth trends for each content category, with a focus on changes in download frequency over the years.
We have used Python for data processing and visualization. Python libraries such as Matplotlib, Seaborn, and Pandas were employed to generate graphs, enabling efficient analysis of large datasets and clear representation of trends and patterns relevant to the research.
Publishing Industry Revenue Breakdown in India
Figure 1
Figure 1 reveals robust growth of the Publishing industry for both, print and digital. However, the digital segment has significantly expanded faster than the print. From 2018 to 2023, the
37 Sci-Hub download log 2011-2013, available at: https://zenodo.org/records/5918542 (last visited on November 9, 2024).
38 Data from: Who's downloading pirated papers? Everyone, available at: https://datadryad.org/stash/dataset/doi:10.5061/dryad.q447c (last visited on November 9, 2024).
39 Sci-Hub download log of 2017, available at: https://zenodo.org/records/1158301 (last visited on November 9, 2024).
revenue improved from $1.8 billion to $2.7 billion, reflecting a Compound Annual Growth Rate (CAGR) of nearly 8.4%. However, it declined by 14.3% in 2020 due to the COVID-19 pandemic but rebounded quickly in the subsequent years. Further, digital revenue grew from
$0.3 billion in 2018 to $1.1 billion in 2023, implying a strong growth and a strategic shift from print to digital.
LibGen Downloads in India
Figure 2
Figure 2 depicts that downloads from 2018 to 2023 show substantial increase, especially in the educational and scientific categories. Downloads in the educational segment increased from 145,795 in 2018 to 396,850 in 2023. Similarly, the download volume for scientific content increased from 175,769 in 2018 to 492,568 in 2023, representing the highest volume category across all content types. This increase results from the lack of affordable academic resources. This gap is filled by platforms like LibGen containing academic texts that many researchers and students would not otherwise purchase.
The (Lack of) Co-relation between LibGen Downloads and Publishers’ Revenue
Figure 3
Figure 3 shows that while LibGen downloads increased from about 396,000 in 2018 to over
1.1 million in 2023, publishing revenue has also grown from $1.8B to $2.7B. This implies no negative co-relation between downloads of LibGen and the revenue of publication industry suggesting minimal impact of these platforms on publishing house revenues.
The Download Logs of Sci-Hub
For this study, we have divided the data into two groups of years 2011-2013 and 2015-2019.
2011 – 2013
Figure 4
As seen in Figure 4, like LibGen, Sci-Hub downloads have shown considerable growth in academic content, with the platform mainly catering to scientific and educational material. This is the category that is always high in demand because of lack of free resources. The increase in educational downloads suggests that students who do not have the access to such resources strongly relied upon Sci-Hub to supplement their study.
The (Lack of) Co-relation between Sci-Hub Downloads and Publishers’ Revenue
Figure 5
Figure 5 clearly demonstrates that there is negligible impact of Sci-Hub downloads on the revenue of the publishers. Although the year 2011 shows a slight decrease in revenue of publishers because of the launch of Sci-Hub, the effect has not subsisted. Revenue has constantly grown with the increase in downloads. Thus, there is no actual, continuing harm to the market of the publishers.
2015-2019
Figure 6
Figure 6 depicts that in 2015-2019, the exponential increase in the number of downloads of LibGen has not affected the linear growth of Revenue of Publishers. The linearity in growth of Revenue suggest that the revenue has constantly increased. This lends further credence to our argument that Sci-Hub cannot be held as a substitute to the publishers and has not caused any harm to the market of the publishers.
Key Findings
This empirical analysis establishes that websites like Sci-Hub/LibGen do not have a tangible effect on the revenue of the publishers. The parallel growth of revenue indicates minimal revenue displacement. Therefore, the claim of actual market harm and complete replacement seems overstated. However, as the next sections highlight, the publishing industry needs new pricing strategies tailored to resource-limited markets, since it has failed to sufficiently deliver to its market of students and academicians. This is evidenced by the emergence of platforms like Sci-Hub and LibGen as supplements and their extremely high demand, which is visible in their download volumes.
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A NECESSARY SUPPLEMENT, NOT SUBSTITUTE: SHADOW LIBRARIES FILLING
the Access Gap
The argument that Sci-Hub and LibGen harm the market for publishers fails to recognize the different roles these platforms play. Traditional academic publishers primarily cater to institutions and researchers who can afford subscription fees. For students and researchers without such resources, especially in low-income or resource-limited regions, shadow libraries serve as indispensable tools for academic engagement. Even students and researchers, who have substantial access to these publishers’ subscriptions, turn to these platforms in huge numbers to access a large corpus of articles and books that they do not have access to (within the subscriptions they already have).40 A 2021 survey from top-tier Indian universities reveal that approximately two-thirds of respondents heavily depend on Sci-Hub, with this figure rising to 77% during the pandemic. The survey also found that an empirical approach is needed to understand the impact of Sci-Hub on the academic publishing industry.41 In such contexts, shadow libraries address an access gap that publishers have not adequately filled.
This argument finds support in the DU Photocopy case, where the Indian judiciary upheld the educational necessity of photocopied materials for students. Recognizing that the students accessing photocopied texts were unlikely to purchase these materials independently, the court emphasized that the practice did not damage the publishers’ market.42 By extension, Sci-Hub and LibGen’s users—students, independent researchers, and those without or with limited institutional access—do not constitute a viable customer base for publishers. They access these platforms not out of choice but necessity, using them to supplement their academic needs.
For instance, most universities face budget limitations that prevent them from subscribing to the entire range of journals needed by their faculty and students. Even well-funded institutions, such as the University of California, have found subscription costs unsustainable, leading to the decision to cut ties with Elsevier due to its high fees. Similarly, Harvard University, despite its endowment, voiced concerns over rising subscription costs, further illustrating the financial burden academic institutions face.43 A 2016 study further highlighted this trend, showing that
40 “Sci-Hub Case: Academics Urge Court To Rule Against ‘Extortionate Practices’”, The Wire Science, February 25, 2021, available at: https://science.thewire.in/the-sciences/Sci-Hub-case-academics-urge-court-to-rule- against-extortionate-practices/ (last visited on November 9, 2024).
41 Anshuman Sahoo and Aditi Shirpurkar, “The Sci-Hub Case: Why It is Time to Stop Favouring the Doctrinal Approach to Law over an Empirical One”, Spicy IP, January 4, 2021, available at: https://spicyip.com/2021/01/the-Sci-Hub-case-why-it-is-time-to-stop-favouring-the-doctrinal-approach-to-law- over-an-empirical-one.html (last visited on November 10, 2024).
Indian scholars downloaded 3.4 million articles from Sci-Hub over just six months—a quantity that, if legally obtained, would cost an estimated $100-125 million. This amount is significantly higher than half the cumulative budget Indian research institutes spend annually on journal subscriptions, illustrating the gap between the cost of academic resources and the financial limitations of these institutions.44
Furthermore, there is no good way, except for Sci-Hub and similar platforms, to ethically use the fair dealing exception for researchers in many countries. Not everyone has the technical knowledge to bypass paywalls.45 Thus, while Sci-Hub and LibGen provide similar content to that of academic publishers, they serve fundamentally different markets. The academic publishing industry’s primary audience—institutions and well-funded researchers—continues to support traditional revenue streams, as evidenced by the growth in digital subscriptions and institutional access models. Sci-Hub and LibGen, by contrast, cater to those who lack access to these paid options, meeting a need for knowledge dissemination in a way that supplements rather than substitutes the publishers’ offerings.
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BEYOND THE PAYWALL, KNOWLEDGE FOR ALL: THE CRUCIAL ROLE OF PUBLIC INTEREST IN MARKET IMPACT ASSESSMENT
In Google LLC v. Oracle America, Inc acknowledged the importance of public benefits alongside potential market impacts when assessing market effects under the fourth factor.46 This perspective aligns with the Indian context, where the fair use doctrine incorporates the societal value of educational access, particularly under Article 21, which has been judicially interpreted to include a right to education.47 This principle is highly relevant to the Sci-Hub and LibGen litigation in India. These platforms provide critical public benefits by offering free access to knowledge for those who otherwise lack it. This accessibility is particularly crucial in developing nations, where financial and institutional barriers often prevent access to essential academic resources.48
44 John Bohannon, “Who's downloading pirated papers? Everyone”, Science, April 29, 2016, available at: https://www.science.org/doi/10.1126/science.352.6285.508 (last visited on November 9, 2024).
45 Apoorva Mandhani, “What HC battle between big publishers & ‘rogue’ websites could mean for free access to research”, The Print, February 15, 2023, available at: https://theprint.in/judiciary/what-hc-battle-between-big- publishers-rogue-websites-could-mean-for-free-access-to-research/1371040/ (last visited on November 10, 2024).
47 Rahul Bajaj and Anchal Bhateja, “Bringing Shadow Libraries out of Legal Shadows: An Opportunity for the Delhi High Court” 18 Indian Journal of Law and Technology 1 (2022).
48 N.S. Gopalakrishnan, Arul George Scaria, et.al., “Social Dimensions of Copyright Infringement and Enforcement: A Quick Reflection in the context of Sci-Hub Litigation” 1-4 (2021).
Many prestigious institutions, including those globally, struggle to afford the rising costs of academic journals, leaving individual researchers with limited access to necessary resources.49 An intervention application filed by various Indian scholars in the Sci-Hub litigation underscores this very problem. It highlights that shadow libraries facilitate continued learning and research in fields crucial to public knowledge. LibGen and Sci-Hub enable students and researchers across India, especially in underserved regions, to access knowledge that would otherwise be inaccessible due to paywalls. The applicants argue that these platforms ensure “the right to education” by providing access to over 84 million scholarly articles, a necessary public good that sustains India’s academic ecosystem.50
This aligns with India’s emphasis on educational rights and access to knowledge, particularly under Article 21, which has been judicially interpreted to include a broad right to research.51 The landmark DU Photocopy case previously recognized the critical public interest in access to educational material, establishing a precedent that fair dealing provisions can protect widespread public access to academic works.52 Applying this reasoning here, the overwhelming public benefit of these shadow libraries should weigh favourably in a fair dealing analysis. In the context of this litigation, scholars have also argued that blocking such access would significantly hinder academic progress and public knowledge, creating a profound imbalance between copyright holders and the broader academic community.53
In India’s growing academic ecosystem, where access to knowledge is marked by stark disparities, shadow libraries like Sci-Hub and LibGen play a transformative role. These platforms, operating without commercial intent, act as essential supplements to traditional academic publishing by bridging gaps that costly subscriptions cannot address. Empirical data shows they have minimal impact on publishers’ revenues while providing immense public benefit, especially in a country where financial and institutional barriers often block access to critical resources.
49 Brian Resnick and Julia Belluz, “The war to free science”, Vox, July 11, 2019, available at: https://www.vox.com/the-highlight/2019/6/3/18271538/open-access-elsevier-california-Sci-Hub-academic- paywalls (last visited on November 10, 2024).
50 “Application for Intervention under Order 1 Rule 8A and Order 1 Rule 10(2) read with Section 151 of the CPC, 1908 on behalf of a group of scholars studying/working in universities across the National Capital Territory of Delhi” in the matter of Elsevier Ltd. v. Alexandra Elbakyan, 2022 SCC OnLine Del 3677.
India’s fair dealing framework presents an opportunity to rethink the boundaries of fair use. By prioritizing non-commercial use, minimal market impact, and the broader societal value of education, the law can adapt to address these pressing access issues. A more inclusive approach to copyright is essential for ensuring equitable dissemination of knowledge. At the same time, academic publishers should consider pricing strategies that reflect the realities of the global south, balancing financial sustainability with the urgent need to support academic progress.