Social Dimensions of Copyright Infringement and Enforcement: A Quick Reflection in the context of Sci-Hub Litigation

Like-Minded IP Teachers’ Working Group on Intellectual Property and Public Interest

 

Social Dimensions of Copyright Infringement and Enforcement:

A Quick Reflection in the context of Sci-Hub Litigation^☨

 
Jointly prepared by:
 
Prof. (Dr) N. S. Gopalakrishnan^[i]
Dr Arul George Scaria^[ii]
Dr M. Sakthivel^[iii]
Ms Anjana Girish^[iv]
Dr Vishnu Shankar P.^[v]
Prof. (Dr) T. G. Agitha^[vi]
Prof. (Dr) Anirban Mazumdar^[vii]
 

1. Pathbreaking technological innovations have always contributed to different kinds of social tensions to which societies and legal systems have struggled to find amicable solutions^[viii]. Unprecedented innovations in the field of information technology, which we started witnessing towards the end of last century and rapidly growing even today, is no exception to this^[ix]. These innovations have been creating ripples in the socio-economic and cultural fabrics of different social structures around the world and we are struggling to find viable solutions to the new challenges^[x]. The major outcomes of these developments in the technological field are the opening up of new vistas of rights of the creative authors and the increasing demands from different strata of the society to enjoy the benefits of technological advancements by facilitating unlimited access to such works. The social tension that we are trying to grapple with is the balancing of these two competing interests – safeguarding the limited monopoly rights of owners of copyright while ensuring the freedom of the users to have access to works – using the traditional copyright framework and this has produced unique social behaviours which the legal system is finding difficult to contain^[xi]. Emergence of new projects such as Sci-Hub, initiated with the objective of creating a new culture of facilitating unlimited/unhindered access to academic works for the purpose of promoting teaching and research and its natural aftermath of copyright litigations in different jurisdictions against Sci-Hub are the latest among this series^[xii]. 
2. Historically, copyright law originated to tackle the social tension created by the printing technology on access to existing works and the rights of authors largely owned and enjoyed by the printing industries^[xiii]. It is the unauthorised printing of works to facilitate access that resulted in the evolution of copyright laws^[xiv]. The solution drawn by the much celebrated first copyright law – Statute of Anne of 1710 – was to recognise the right of authors to regulate making copies of their works. But it also limited the duration of protection to 14 years and provided measures for regulating unreasonable pricing of books by the industry with a view to safeguard the interest of the society to have affordable access^[xv]. While the limitation on the duration of protection led to the debate on property rights over the creation of works before the courts^[xvi] and the parliament^[xvii], the issue of regulating the price of books seems to have been left to the market by facilitating the growth of competing industries^[xviii]. The prolonged litigations ignited by the then existing prominent printing press on duration of protection^[xix] was finally settled by the House of Lords in Donaldson v. Beckett^[xx] by holding that the common law property right exists only in the unpublished manuscripts of the author and this is taken away and regulated by the statute once it is published^[xxi]. The categorical statement in the judgment that copyright over the works is not a perpetual property right and is limited in nature by the statute and the rights to safeguard the interest of the society^[xxii] finally found its place in different copyright legislations all over the world^[xxiii]. The British Parliament also echoed the public interest dimensions of copyright law while settling the issue of term extension that historically bothered them due to the pressure from interest groups.^[xxiv]
   
3. The social tension of unauthorised copying of works to satisfy the demand of the society produced international challenges, and it led to the Berne Convention in 1883^[xxv]. History teaches us that many countries refused to recognise copyright in foreign works to promote access to works including permitting translation of them into local languages^[xxvi]. Even though Berne Convention successfully laid down the minimum principles for international protection of copyright of the authors, countries unhappy with these principles stayed away from the Berne convention and facilitated unauthorised access to foreign works using different strategies^[xxvii]. The US is an example of a jurisdiction refusing protection to foreign works and also using formalities like registration of works to promote access to works for kindling the growth of both domestic creativity and printing industry^[xxviii]. In the post second world war period, China is considered as another example of a jurisdiction that facilitates access and growth of associated industries without much concerns about copyright infringement^[xxix]. Most countries also created adequate limitations and exceptions in their domestic laws to promote diverse social, political, economic, cultural, and technological requirements.^[xxx] Some of these measures include specific exclusions of certain types of works from the ambit of copyright protection, exceptions such as fair use or fair dealing, compulsory licensing provisions, and allowing parallel imports to ensure better access to works. 
4. The technological innovations in the field of sound recording^[xxxi] and cinematograph film that came into existence during the middle of 19^th century also created the social tension of unauthorised copying of works to satisfy the demands of the society. Similar is the case with broadcasting technologies^[xxxii]. In all such circumstances, even though the copyright law was tailored to contain unauthorised access to works^[xxxiii], infringement of copyrights continued unabated due to social and cultural conditions^[xxxiv]. While in some cases profit motive was the reason for the same, in other circumstances it was the sheer need for access to works for facilitating creativity and cultural needs^[xxxv]. Public interest in access to works remained the main objectives of tolerating the social tension of unauthorised access to works. 
5. Innovations in the field of information technology and increasing internet access have created new social tensions for copyright law. It is an accepted fact that in the context of digital technologies, the cost of production and distribution of works has considerably reduced and also opened up new opportunities and markets for the owners of copyright to increase their profit margins^[xxxvi]. It is equally important to note that the unprecedented speed in which works could be disseminated without affecting the quality of the copy of the work enabled the users to enjoy the work not only for new creation, but also for satisfying their cultural needs^[xxxvii]. This led to the faster growth of social habits like uploading and downloading, sharing, creation of user-generated content (UGC), and text and data mining. Technological platforms such as Napster, Grokster, Gozzilla, Torrent,  Kazaa, Streamcast, Limewire, The Pirate Bay, RapidShare, Megaupload, Sci-Hub, Aero etc., developed as a response to these social habits^[xxxviii]. Starting with music, the new sharing and consumption culture spread into other areas like movies, books, newspapers, etc.- practically in all information goods, including academic works. The immediate reaction of the copyright holders was to approach the courts to use the existing copyright law to prevent the spread of these habits^[xxxix]. Interestingly, while it was possible for the owners of copyright to stop the functioning of a few technologies, the remedies from the court did not help them in preventing the spread of new habits since new technologies circumventing the scope of copyright law were invented to facilitate unauthorised access to works. Realising the fact that there are limits for copyright law to provide relief, the owners of copyright engaged in developing new business models to address the issue of affordable access to protected works.^[xl] Some of the examples in this regard include provision of unlimited music through iTunes and iPod by Apple, acquisition of YouTube by Google and turning it into the world’s biggest UGC platform, and provision of unlimited movies by Amazon (through Amazon Prime) and Netflix. In parallel, social media sites like Facebook, Reddit, Tumblr and Twitter also started responding to the changing consumer habits. Platforms like TikTok acquired licenses in copyrighted contents and facilitated creation of user generated contents without fear of copyright infringement liability.^[xli] In addition, the copyright owners also used technological solutions (technological protection measures)^[xlii] to prevent unauthorised access to works and lobbied for laws to prevent breaking of technological protection measures^[xliii]. The fact of the matter is that even these efforts have not eradicated the new habits of unauthorised access to works, a clear reflection of the social behaviour and the limitations of law and business practices to prevent the same in the digital context. While some countries and courts have been aggressive in taking actions against these behaviour^[xliv], others were silent or slow in realising the social realities in their countries.^[xlv] Thus, it is possible for one to conclude that infringement of copyright – “piracy” – is an ever-existing social phenomenon. It increases with technological developments for various reasons such as evolution of new habits of access to works, investment in technologies to facilitate unauthorised access, the overreaction of owners of copyright to aggressively enforce copyright with existing and new laws and the development of new business models.^[xlvi] Whatever may be the reasons, the main objective behind piracy remains satisfying the unmet demands of the society for access to copyright works in the market economy, and not necessarily the intention of making economic gains out of it. Hence the social dimension of copyright infringement is an important element to be taken note of while deciding cases. 
6. Independent India’s Parliamentary debates on the Copyright Act of 1957 reflect the conflicting views that existed in protecting the public interest of access to works while safeguarding the interest of the authors^[xlvii]. Learning from the experiences of other countries and considering the domestic needs for facilitating access, given the socio-economic and cultural conditions, Copyright Act created a well-balanced framework for copyright protection in India^[xlviii]. With the 2012 amendments, the Copyright Act in India is considered as one of most user-friendly laws in the world^[xlix]. The courts in India have also realised the public interest in facilitating access to works and took care to deliver judgments promoting the same^[l]. 
7. It is in this context that one needs to examine the reaction of the courts in enforcement of copyright using traditional remedies like temporary and permanent injunctions. While the initial reactions were to safeguard the legal rights of authors based on the principles of rule of law^[li], increasingly courts are taking into account the social realities such as the reasons behind the infringing activities and the social implications of remedies granted^[lii]. While prima facie case, balance of convenience and irreparable harm remain the basic criteria for granting temporary injunctions^[liii], courts, particularly in the US, consider public interest also as an important factor in determining the need for granting an injunction^[liv]. Indian courts also have considered the public interest dimensions of availability and affordability of IP goods while considering grant of injunctions^[lv]. The courts in India have also paid adequate attention to the question whether the alleged infringing activity falls within the permissible uses provided under section 52 of the Copyright Act to promote access, encourage creativity, and promote industrial growth^[lvi]. 
8. In the context of the increasing attempts from multiple sectors of the community for facilitating access to copyright works through the Internet, dissatisfied with the remedies based on traditional principles, the owners of copyright started convincing the courts to develop new forms of relief and “dynamic injunction” is one of such avatars used for preventing unauthorised access to works^[lvii]. The tsunami waves of dynamic injunction originated in the foreign countries and have reached the Indian shores as well^[lviii]. While the foreign courts developed balancing principles^[lix] keeping in mind their socio-economic conditions, the Indian court in the UTV case seems to have missed that important aspect. While some of the conditions laid down in UTV case seems sound^[lx], it remains one sided rather than balanced in taking note of the Indian realities^[lxi]. To be balanced, the courts also need to look into the following interrelated factors/ questions while granting dynamic injunctions.These are:
   1. Application of the proportionality principle, with special reference to freedom of speech and expression, cultural development, and creativity.^[lxii]
   2. Evidence of economic loss to the copyright owner. ^[lxiii]
   3. Whether it is the non-availability or lack of affordable access that leads the users to the alleged infringing website.
   4. Whether the main motive of the infringing website is profit making or is it driven by the motive of furthering affordable access.
   5. Nature of the copyrighted work that has been alleged to have been infringed i.e. entertainment, academic etc.
   6. Whether the nature of the use of works and users – targeted or not – personal purpose or use for larger social good – eg., research and learning.^[lxiv]
   7. Would the users be taking license or purchasing the work in the absence of the illegal website?
   8. Whether the target users are those left out of the market by the owners of copyright?
   9. Evidence that the website contains only illicit material.^[lxv] Onus should be on the copyright owners to prove that the alleged infringing site contains only infringing content.
   10. Delay in taking action and the reasons for the same.
   11. Proof of sharing of the economic returns by copyright owners with the authors of the work.^[lxvi]
   12. Impact of issuing dynamic injunctions on internet users and the goal of open internet.^[lxvii]
   13. Whether issuance of the injunction affects the fundamental right of freedom of information and access to legitimate materials/contents.^[lxviii]
       
9. It is also important to note that dynamic injunctions originated in foreign countries to control unauthorised access to entertainment contents like music and film^[lxix]. But it’s now pressed into service in India, and possibly for the first time in the world, by the avaricious modern “Tonsons and Lintons”^[lxx] (Elsevier and Wiley) for academic contents as well^[lxxi]. It is well established that authors of academic work contribute to the rich treasure of academic literature without any economic returns based on copyright law and the market players using copyright laws make unreasonable profit margins for facilitating access^[lxxii]. Even the open access model promoted by many of the major publishers are exploitative business models wherein the authors are forced to pay a huge sum as Article Processing Charges (“APC”), unaffordable for academics and researchers in the Global South.^[lxxiii] While deciding on the grant of a dynamic injunction, what needs to be appreciated is the difference between music, film, and academic works, and the social consequences a dynamic injunction can create in the context of academic works.The most important differences are:
   1. Academic works are used primarily by teachers, students, and researchers for producing social goods.
   2. Access to academic works is integral for the social and economic development of a country.
   3. Most of the core contributors in the academic publishing process (such as authors and peer-reviewers) do not receive any economic remuneration for their contributions, clearly indicating that economic returns envisaged by copyright law may not be working in the context of academic works.
   4. Commercial publishers try to maximise the profit out of academic publications, thereby depriving a large section of students, teachers, and researchers from access.
   5. Individual users cannot afford subscriptions to most academic publications.
   6. Majority of the academic institutions in India also cannot afford subscription costs.
   7. Majority of the academic Institutions in India also cannot afford APC costs imposed by publishers for making a work open access.
   8. Academic publishing market is controlled by a few oligopolistic players.
   9. Implication on teaching and research to promote creativity and social progress.
   10. Lack of substitutability for academic works and lack of alternate sources for access.
   11. Use of better technology to facilitate access.

The court while evaluating the need for such an intervention, it is worth taking note of the above factors before granting a dynamic injunction.

1. IP in general and the copyright law in particular, is considered as a powerful engine to foster creativity and industrialisation in a market economy even though there exists no conclusive economic evidence to establish the same^[lxxiv]. Development, from the perspective of copyright, is the affordable availability of works to those who are in need of the same, particularly those left out by the market. Access to copyrighted works is important for promoting creativity and cultural needs. Traditional copyright laws facilitate this by creating a robust public domain, provisions for use without authorisation, compulsory licensing and statutory licencing, parallel import of works, etc. To facilitate access, law needs to recognize the demand of the intermediaries – printing, sound recording, film, software, internet – by providing adequate protection to the work to reap economic returns for their investment, that too in the emerging digital markets. The dominant view is that a well-balanced copyright law will promote rapid industrialisation that will automatically take care of the issue of affordable access. But historical evidences from developed countries particularly the US^[lxxv], Germany^[lxxvi], China^[lxxvii] etc., show the contrary. State and courts developed strategies to ensure that in case of market failure, there is adequate legal intervention to ensure industrialisation and affordable access to work^[lxxviii]. 
2. The emergence of Sci-Hub reflects the fact of market failure to facilitate affordable access to academic works.^[lxxix] No need to reiterate the importance of access to academic works to promote creativity and progress of the society. It is also worth pondering why Russia is not eager to take action against the operators of Sci-Hub, if they are taking shelter in their territory. Is it because the current copyright framework and market structures evolved around it are producing unjust results? Or is it because the existing provisions in the laws are inadequate to prevent the social injustice emerging in the digital context? If so, is it not worth encouraging and protecting those who follow the principles of Mahatma Gandhi who taught us that it is the right of every individual to disobey the law which she/he honestly believes  to be unjust?^[lxxx]. The courts need to take note of these developmental issues while granting remedies demanded by the market players on copyright infringement, particularly on academic works.

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[i] Honorary Professor, Inter University Centre for IPR Studies, CUSAT | Email: gopalakrishnan.n.s@gmail.com
[ii] Associate Professor, National Law University Delhi | Email: arul.scaria@nludelhi.ac.in
[iii] Assistant Professor, Guru Gobind Singh Indraprastha University, Delhi | Email: msakthi1985@gmail.com
[iv] Assistant Professor, Inter University Centre for IPR Studies | Email: anjana.girish87@gmail.com
[v] Research Officer, Inter University Centre for IPR Studies | Email: vishnusankar.cusat@gmail.com
[vi] Adjunct Faculty, Inter University Centre for IPR Studies | Email: tgagitha@gmail.com
[vii] Professor, The WB National University of Juridical Sciences | Email: animazum@live.com
[viii] Sony Corp. v. Universal City Studios, Inc. (1984) 464 U. S. 417; Joel Waldfogel, “Copyright Protection, Technological Change, and the Quality of New Products: Evidence from Recorded Music since Napster” (2012) 55 The Journal of Law & Economics 715-740.
[ix] Neil Weinstock Netanel, “Copyright and a Democratic Civil Society” (1996) 106 The Yale Law Journal 283.
[x] Raymond Shih Ray Ku, “The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology” (2002) 69 The University of Chicago Law Review 263; P. Bernt Hugenholtz, “Adapting copyright to the information superhighway” <http://dare.uva.nl/document/2/28531> accessed 16 Feb 2021.; Hector Postigo, The Digital Rights Movement: The Role of Technology in Subverting Digital Copyright (MIT Press 2012).
[xi] See generally, Peter S.Menell, “Envisioning Copyright Law’s Digital Future” (2002-2003) 46 New York Law School Law Review 63-199; National Research Council, The Digital Dilemma: Intellectual Property in the Information Age (National Academies Press 2000); Raymond Shih Ray Ku, “The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology” (2002) 69 The University of Chicago Law Review 263; Joel Waldfogel, “Copyright Protection, Technological Change, and the Quality of New Products: Evidence from Recorded Music since Napster” (2012) 55 The Journal of Law & Economics 715.
[xii] For example, see  Lindsay McKenzie, ‘Linking Liability’ (Inside Higher Ed., 16 Aug 2019) <https://www.insidehighered.com/news/2019/08/16/legal-questions-raised-over-links-sci-hub> accessed 16 Feb 2021, in which a link to Google Scholar is provided wherein one can see many academics thanking Alexandra Elbakyan for her indirect contributions to their successful completion of research, <https://scholar.google.com/scholar?q=%22thank+alexandra+elbakyan%22> accessed 16 Feb 2021.  Two examples of the litigation against Sci-Hub are Elsevier Ltd. & Ors. v. Alexandra Elbakyan & Ors., C.S. (COMM) No. 5722020 of 2020 (Delhi HC) and American Chemical Society v. Sci-Hub D/B/A
WWW.SCI-HUB.CC, JOHN DOEs 1-99  (The US District Court for the Eastern Virginia Alexandria Division, 2017). . It is also important to note in this context that even resource rich universities like Harvard are today finding it difficult to pay increasing subscription charges imposed by publishers like by Elsevier.   <https://www.theguardian.com/science/2012/apr/24/harvard-university-journal-publishers-prices> accessed 16 Feb 2021.
[xiii] Ronan Deazley, On the Origin of the Right to Copy-Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (Hart Publishing 2004).
[xiv] Daniel Defoe, “An Essay on the Regulation of the Press” <https://archive.org/details/bub_gb_4zJcAAAAQAAJ> accessed 16 Feb 2021.
[xv] Statue of Anne (8 Anne. c. 19), cl. IV <https://case.edu/affil/sce/authorship/statueofanne.pdf> accessed 16 Feb 2021.
[xvi] Mark Rose, “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship” (1988) 23 Representations  51-85.
[xvii] Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions (Rothmans Reprints Inc. 1972) 74-76; Ronan Deazley, On the Origin of the Right to Copy-Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (Hart Publishing 2004).
[xviii]John Feather, Publishing, Piracy and Politics-An Historical Study of Copyright in Britain (Mansell Publishing Limited 1994) 63.
[xix] Millar v. Taylor (1768) 4 Burr 2303.
[xx] (1774) 4 Burr 2408.
[xxi] Ronan Deazley, Rethinking of Copyright-History, Theory, Language (Edward Elgar Publishing Limited 2006) 20-21.
[xxii] Lord Camden’s observation in Donaldson v. Beckett. See “Commentary on Donaldson v. Beckett” <http://www.copyrighthistory.org/cam/tools/request/showRecord?id=commentary_uk_1774> accessed 16 Feb 2021.
[xxiii] Denise W.K. Khong, “The Historical Law and Economics of the First  Copyright Act” (2006) 2 Erasmus Law and Economics Review 35-69, 61.
[xxiv] “Copyright (February 5, 1841): A Speech Delivered in the House of Commons on the 5th of February 1841” in Thomas Babington Macaulay, The Miscellaneous Writings and Speeches of Lord Macaulay  <https://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H_4_0018> accessed 16 Feb 2021; Also see generally, Catherine Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge University Press 1999).
[xxv] Sam Ricketson and Jane Ginsburg, “The Berne Convention: Historical and Institutional aspects”, in Daniel J. Gervais, International Intellectual Property: A Handbook of Contemporary Research (Edward Elgar 2015) 3 – 36; Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 1886-1986 (Centre for Commercial Law Studies, Queen Mary College 1987).
[xxvi] Ruth L Okediji, The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries (UNCTAD – ICTSD Project on IPRs and Sustainable Development, March 2006) 8; Also see Samuel Ricketson, “The Birth of the Berne Union” (1986) 11 COLUM.-VLA J.L. & ARTS 9.
[xxvii]  See, Cohen, Julie E., et al., Copyright in a global information economy, (ASPEN Publisher 2006)24 -35; Peter K. YU, “The Copyright Divide” (2003) 25 Cardozo L. Rev. 331.
[xxviii]  Edward G. Hudon, “Literary Piracy, Charles Dickens and the American Copyright Law” (1964) 50(12) American Bar Association Journal 1157-1160,1157 – 1158; also see, Julie E. Cohen  et al., Copyright in a global information economy, (ASPEN Publisher 2006) 34.
[xxix] See, generally, William P Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization (Stanford University Press 1995).
[xxx] See, Paul Goldstein and P Bernt Hugenholtz, International Copyright (Fourth Edition, Oxford University Press 2019) 349; See also generally Ruth L. Okediji, “The Limits of International Copyright Exceptions for Developing Countries” (2019) 21 Vand. J. Ent. & Tech. L. 689-736.
[xxxi] Peter S. Menell, “Envisioning Copyright Law’s Digital Future” (2002-2003) 46 N.Y.L. SCH. L. REV. 63.
[xxxii]  Makeen Fouad Makeen, Copyright in a Global Information Society: The Scope of Copyright Protection under International, US, UK and French Law (Kluwer Law International 2000) 35-37; Also see Leo L. Linck, “Copyright Law Applied to Radio Broadcasting” (1943) 19 Notre Dame Law Review 13- 30.
[xxxiii] Gillian Davies, Copyright and the Public Interest (2nd ed., Sweet & Maxwell 2002) 254.
[xxxiv] See generally, Ronald v. Betting, Copyrighting Culture: The Political Economy of Intellectual Property (Westview Press 1996).
[xxxv] Giovanni B. Ramello, “Copyright & Endogenous Market Structure: A Glimpse from the Journal-Publishing Market” (2010) 7(1) Review of Economic Research on Copyright Issues 7-29. Some scholars have observed similar developments in the context of cable television related regulations too. For example, see N.S. Gopalakrishnan, “Legal Control of Cable Television in India: A study with Special reference to State of Karnataka” (1990) 16 Academy Law Review 83.
[xxxvi] William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Harvard University Press 2003) 313; Also see James Boyle, “The Second Enclosure Movement and the Construction of Public Domain” (2003) 66(33) Law & Contemporary Problems 43.
[xxxvii] Balázs Bodó, “The Genesis of Library Genesis: The Birth of a Global Scholarly Shadow Library” in Joe Karaganis (Ed.) Shadow Libraries, Access to Knowledge in Global Higher Education (MIT Press 2018) 30.
[xxxviii] See generally, Peter Jan Honigsberg, “The Evolution and Revolution of Napster” (2002) 36 U.S.F. L. REV. 473.
[xxxix] See for example, Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd.  (CD Cal, 2003) 259 F.Supp.2d 1029; Viacom v. YouTube 676 F.3d 19; American Broadcasting Companies, Inc. v. Aereo, Inc. (2014) 134 S.Ct. 2498 ;  and Super Cassettes Industries v. Myspace Inc and Anr. (Delhi High Court, 2011). <https://indiankanoon.org/doc/216257/>; See also
Jane C. Ginsburg, “Copyright and Control over New Technologies of Dissemination” (2001) 101(7) Columbia Law Review 1613-1647; Michael Carrier, “The Pirate Bay, Grokster and Google” (2010) 15 Journal of Intellectual Property Rights 7-18; Roger Parloff, “The Real War Over Piracy from Betamax to KaZaa: A Legal Battle is Raging over the “Magna Carta of the Technology Age”” (Fortune, 17 Oct 2003)<https://money.cnn.com/magazines/fortune/fortune_archive/2003/10/27/351666/index.htm> accessed 16 Feb 2021; Raymond Shih Ray Ku, “The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology” (2002) 69(1) University of Chicago Law Review 263-324; Daniel Gervais, “The Tangled Web of UGC: Making Sense of User-Generated Content” (2009) 11(4)  Vanderbilt Journal of Entertainment and Technology Law 841-70;  Timothy L. Yim, “Normative Avoision: Revising the Copyright Alert System to Circumvent Normative Backlash” (2014) 6(1) Hastings Science and Technology Law Journal 1-30.
[xl] Lucie Guibault et al., “Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society” (2007) 1.4 Institute for Information Law, University of Amsterdam; Joel Waldfogel, Digital Renaissance: What Data and Economics Tell Us about the Future of Popular Culture (Princeton University Press 2018).
[xli] Ameet Datta, ‘Apna Time Aagayaa? An Indian TikTok Rival Will Also Need to Navigate the Music Industry’ (Deccan Herald, 7 July 2020).
<https://www.deccanherald.com/brandspot/pr-spot/apna-time-aagayaa-an-indian-tiktok-rival-will-also-need-to-navigate-the-music-industry-858226.html> accessed 16 Feb 2021; See also, Henning Grosse Ruse-Khan, “Automated Copyright Enforcement Online: From Blocking to Monetization of User-Generated Content” (2020) PIJIP Research Paper Series,
<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1053&context=research> accessed 16 Feb 2021.
[xlii] Bill D. Herman, “A Political History of DRM and Related Copyright Debates” (2012) 14(1) Yale Journal of Law & Technology 162-225.
[xliii] See for example, the WIPO Copyright Treaty, Arts 11, 12;  The WIPO Performances and Phonograms Treaty, Arts. 18,19; The Digital Millennium Copyright Act in the US,17 U.S.C. § 1201 (a) (1) (A), 17 U.S.C. § 1201(a)(2), and 17 U.S.C. § 1201 (b) (1); The Information Society Directive of 2001 in EU, Art. 6; and the Copyright Act, 1957 in India,  65A and 65B. See also, Ginsburg, Jane C. The Pros and Cons of Strengthening Intellectual Property Protection: Technological Protection Measures and Section 1201 of the Us Copyright Act (Columbia Public Law Research Paper No. 07-137, 2007) 1-26.
[xliv] Jurisdictions like the US and EU were quick in adopting anti-circumvention provisions. See the anti-circumvention provisions in the Digital Millennium Copyright Act in the US and the Information Society Directive of 2001 in the EU.
[xlv] India is one of the countries that took a more cautious approach in adopting anti-circumvention provisions. The anti-circumvention provisions were added to India only in 2012 and those anti-circumvention provisions  also contained specific provisions to protect the rights of users of copyrighted works. See Sec. 65A (2) of the Copyright Act 1957.
[xlvi] John Bohannon, ‘Who’s downloading pirated papers? Everyone: In rich and poor countries, researchers turn to the Sci-Hub website.’ (Science, 28 Apr 2016) <https://www.sciencemag.org/news/2016/04/whos-downloading-pirated-papers-everyone> accessed 16 Feb 2021; Also see, John Bohannon, ‘The frustrated science student behind Sci-Hub’ (Science, 28 Apr 2016) <https://www.sciencemag.org/news/2016/04/frustrated-science-student-behind-sci-hub?IntCmp=scihub-1-11> accessed 16 Feb 2021.
[xlvii] See, Parliamentary Debates on the Copyright Bill, 1955. Rajya Sabha Debates (14th May, 1955) 85-162.  See, also Prashant Reddy T. and Sumathi Chandrashekaran, Create, Copy, Disrupt (Oxford University Press 2017) 115-146. It is also interesting to note that the draft policy on working of libraries for Independent India by S.R. Ranganathan (Ranganathans Model Library Bill of 1930 and 1942) argued for a democratic, user oriented library policy intended for increasing access to users.
[xlviii] Zakir Thomas, “Overview of changes to the Indian copyright law” (2012) 17 JIPR, 324-334; Swaraj Paul Barooah, “Disruptive (Technology) Law; Examining TPMS and Anti-Circumvention Laws in the Copyright (Amendment) Act, 2012” (2021) 5 NUJS L. Rev.583.
[xlix] As per a study conducted by Sean Flynn and Michael Palmedo, India is at rank 7 out of 21 countries which they studied with regard to user rights. See “New User Rights Data: Ranking Openness in 21 countries” <http://infojustice.org/archives/41286> accessed 16 Feb 2021; Also see Consumers International, Consumers International IP Watchlist Report 2010
<https://www.opensocietyfoundations.org/uploads/2583ae95-702f-4059-9b60-08b8733bdd6a/ip-watch-list-20100220.pdf 220.pdf> accessed 16 Feb 2021.
[l]  See, for example, Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. (Supreme Court, 2008), <https://indiankanoon.org/doc/1592558/>; The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors (Delhi High Court, 2016, Single Bench), <https://indiankanoon.org/doc/135895592/>; The  Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors (Delhi High Court, 2016, Division Bench), <https://indiankanoon.org/doc/114459608>; and Akuate Internet Services Pvt. Ltd. & Anr.  v. Star India Pvt. Ltd. & Anr. (Delhi High Court, 2013) <https://indiankanoon.org/doc/66104323/>.
[li] For example, in the context of patent infringement suits, see Sterlite Technologies Limited v. Ztt India Private Limited (2019) <https://indiankanoon.org/doc/100652936/> accessed 16 Feb 2021; In the context of copyright infringement suits, see the procedural history in Eastern Book Company v. Reed Elsevier Pvt. Ltd (2016)  ‘Supreme Court confirms injunction against LexisNexis in the EBC copyright infringement case’ (SCC Online blog, 25 Nov 2016)
<https://www.scconline.com/blog/post/2016/11/25/supreme-court-confirms-injunction-against-lexisnexis-in-the-ebc-copyright-infringement-case/> accessed16 Feb 2021.
[lii] In the context of injunction applications in the area of patents, one can see Indian courts specifically looking at the broader consequences of grant of injunctions. For example, see the observations of the Court in Novartis
AG And Anr. v. Mehar Pharma (Bombay HC, 2004) <https://indiankanoon.org/doc/50284/> 28; F. Hoffmann-La Roche Ltd. & Anr. v. Cipla Ltd. (Delhi HC, 2009) <https://indiankanoon.org/doc/131401110/> 81, 82.
[liii] See, Gujarat Bottling Company and others v. Coca Cola and others (1995) SCC (5) 545, 574.
[liv] See, eBay Inc. v. MercExchange, L.L.C. (1837) 126 S.Ct. But some scholars have also pointed out that in the US also, though the Supreme Court has taken a balanced approach, one can see substantial divergences in approaches taken by different circuit courts. See Patry on Copyright, § 22:1.
[lv] See, for example, Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. (Supreme Court, 2008), <https://indiankanoon.org/doc/1592558/>. See also, the Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors (Delhi High Court, 2016, Single Bench), <https://indiankanoon.org/doc/135895592/>; Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors (Delhi High Court, 2016, Division Bench) <https://indiankanoon.org/doc/114459608>.
[lvi] See, for example, Syndicate of the Press of the University of Cambridge and others v.  B. D. Bhandari and others (2011) <https://indiankanoon.org/doc/565788/ >; Civic Chandran and others v. Ammini Amma and others (1996) 16 PTC 329. <https://www.casemine.com/judgement/in/56e66b08607dba6b534374a3>; The Chancellor, Masters & Scholars of the University of Oxford & Others. v. Rameshwari Photocopy Services & Others (Delhi High Court, 2016, Single Bench); and Chancellor, Masters & Scholars of the University of Oxford & Others. v. Rameshwari Photocopy Services & Others (Delhi High Court, 2016, Division Bench).
[lvii]  Manmeet Kaur Sareen, Kanika Kalra, “Dynamic Injunctions – Internet ‘Injunctions 2.0’
” (2019) 2(Winter issue) ILI Law Review34 <ili.ac.in>;  Also see American Chemical Society  v. SCI-HUB d/b/a WWW.SCI-HUB.CC, JOHN DOES 1-99  Case 1:17-cv-00726-LMB-JFA, Cartier International AG v. British Sky Broadcasting Ltd (2017) 1 All ER 700; Disney Enterprises, Inc. v. M1 Ltd. (2018) SGHC 206; Foxtel Management Pty Limited v. TPG Internet Pty Ltd & Ors (2019) No: NSD981/2019.
[lviii] UTV Software Communication Ltd. … v. 1337X. To And Or (2019); Disney Enterprises, Inc. & Ors. v. Kimcartoon.To & Ors. Cs(Comm) (275/2020); Snapdeal Private Limited v. Snapdeallucky – Draws.Org.In &(2020); Warner Bros. Entertainment Inc. v. Http.//Tamilrockers.Ws & Ors. Cs(Comm) (369/2019).
[lix] For example, in the European case Scarlet Extended SA v. Société Belge des Auteurs, Compositeurs et Editeurs SCRL (SABAM) (Scarlet Extended), C-70/10, the court had observed that while granting injunctions, it needs to be ensured that the freedom of information is not impaired by virtue of over-filtering of contents. It is also important to note that most of the courts in other jurisdictions granted dynamic injunctions only after legislative amendments were made in their respective laws for providing dynamic injunctions.
[lx] For example, regarding the tests evolved to find out whether a site is a rogue website, the court checked whether the site is primarily dedicated to facilitating infringement. Another good guideline provided was whether the rogue websites encourage a user to circumvent detection or blocking orders by providing detailed instructions on how to avoid detection or how to access a blocked website.
[lxi] The court in the UTV case heavily relied on the Singapore law on dynamic injunctions and secondary materials from foriegn jurisdictions rather than looking into the Indian scenario.
[lxii]  The court needs to focus on, as in the EU law, whether the blocking injunction is sought for a legitimate aim and whether no other reasonable alternatives are available for the same. See Takis Tridimas, The General Principles of EU Law (2nd ed, Oxford University Press 2006) 139. It should also be remembered that the proportionality principle is a flexible one and needs to be applied on a case to case basis, taking into account the different factual needs in each case. See R (ProLife Alliance) v. British Broadcasting Corporation (2004) 1 AC 185, 257 [138]; Lumsdon (2016) AC 697, 717 [23]. Any injunction must also be strictly targeted so as to strike a balance between preventing third party infringements and protecting the freedom of information of internet users. See UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH.
[lxiii] Even in the UTV case the court relied heavily on foriegn studies on economic loss to owners of copyright in the film industry due to pirate sites, rather than looking for proof of economic loss in the Indian context.
[lxiv]  See, for example, Syndicate of the Press of the University of Cambridge and others v.  B. D. Bhandari and others (2011) <https://indiankanoon.org/doc/565788/ >.
[lxv] Eros International Media v. BSNL (2016) suit No. 751.
[lxvi]  The Indian Copyright Act 1957, s 17, 18.
[lxvii] Cartier InternationalAG v British Sky Broadcasting (2015) 1 All ER 949.
[lxviii] Scarlet Extended SA v. Socidtd Belge des Auteurs, Compositeurs et Editeurs SCRL (SABAM), C-70/10.
[lxix]  See, for example, American Chemical Society v. Sci-Hub D/B/A
WWW.SCI-HUB.CC; JOHN DOEs 1-99  (The US District Court for the Eastern Virginia Alexandria Division, 2017); Cartier International AG v. British Sky Broadcasting Ltd (2017) 1 All ER 700; Disney Enterprises, Inc. v. M1 Ltd. (2018) SGHC 206; Foxtel Management Pty Limited v. TPG Internet Pty Ltd & Ors(2019) No: NSD981/2019.
[lxx] “All our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves as their own hackney compilers are” Lord Camden in Donaldson v. Becket. (1774) 4 Burr. 2407; 98 E.R. 257, quoted in Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions (1879, Reprints Inc. 1972) 39-40.
[lxxi] Elsevier Ltd. & Ors. v. Alexandra Elbakyan & Ors. (2020) C.S. (COMM) No. 5722020 of 2020 (Delhi HC).
[lxxii] Arul George Scaria, ‘Sci-Hub Case: The Court Should Protect Science From Greedy Academic Publishers’ (The Wire, 22 Dec 2020) <https://thewire.in/law/sci-hub-elsevier-delhi-high-court-access-medical-literature-scientific-publishing-access-inequity> accessed 16 Feb 2021; Rahul Siddharthan, ‘An Anti-Science Lawsuit’ (The Hindu, 24 Dec 2020) <https://www.thehindu.com/opinion/op-ed/an-anti-science-lawsuit/article33405250.ece> accessed 16 Feb 2021.
[lxxiii] For example, as per a recent announcement of the Springer Nature publishing group, they will be charging upto US$11,390 (approximately, INR 8,26,812) to make a paper open access (OA) in their journals which includes Nature <https://www.nature.com/articles/d41586-020-03324-y> accessed 16 Feb 2021.
[lxxiv] See, generally, Mark A Lemley, “Faith-Based Intellectual Property” (2015) 62 UCLA Law Review 1328.
[lxxv] Bodó Balázs, “Coda: A Short History of Book Piracy” in Joe Karaganis (ed), Media Piracy in Emerging Economies (SSRC 2011) 408-410.
[lxxvi] “No Copyright Law: The Real Reason for Germany’s Industrial Expansion?”, <https://www.spiegel.de/international/zeitgeist/no-copyright-law-the-real-reason-for-germany-s-industrial-expansion-a-710976.html> accessed 16 Feb 2021.
[lxxvii] See, generally, William P Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization (Stanford University Press 1995).
[lxxviii] For example, in Kirtsaeng v. John Willy [(2013) 133 S. Ct. 1351] the US Supreme Court used the principles of international exhaustion to facilitate parallel import to protect the interest of consumers to get copyright works at a reasonable price. Similarly, China, using the flexibilities provided under the TRIPS Agreement, introduced in their copyright law a higher threshold for invoking criminal liability for infringements on commercial scale and decriminalised certain types of infringement. In a dispute raised by the US against these provisions, the  WTO Dispute Settlement Body upheld the provisions. See China-Measures Affecting the Protection and Enforcement of Intellectual Property Rights (WT/DS362/R, 26 Jan 2009).
[lxxix] Kenneth R. de Camargo Jr,  “Big Publishing and the Economics of Competition” (2014) 104 American Journal of Public Health Editorials 8; UK, House of Commons, Science and Technology Committee, Scientific publications: free for all? (Tenth report of session, 2003-04) Vol 1 <http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/399/399.pdf>; Ramello GB, Copyright endogenous market structure: a glimpse from the journal-publishing market (POLIS Working Papers, 2008) 3 <http://polis.unipmn.it/pubbl/RePEc/uca/ucapdv/ramello169.pdf>.
[lxxx] <https://www.mkgandhi.org/voiceoftruth/civildisobedience.htm> accessed 16 Feb 2021). It is interesting to also notice that Gandhi had very nuanced views on copyright. He had serious reservations against the market-oriented, utilitarian approaches of copyright law. But he has also shown the possibilities of using copyright law in a pragmatic and balanced manner to protect the non-economic rights of attribution and integrity. See generally, Shyamkrishna Balganesh, “Gandhi and Copyright Pragmatism” (2013)  101 CALIF. L. REV. 1705.