Copyright and the Sci-Hub/Libgen Case: A Constitutional Query

Saral Minocha

The conflict between copyright law and the right to receive information
is now starkly visible. In the ongoing litigation in the Delhi High
Court pertaining to shadow libraries Libgen and Sci-Hub, the plaintiffs
(three publication houses that publish books, journals and academic
articles, namely Elsevier, Wiley and ACM) have filed a suit seeking the
direction that these shadow libraries be blocked on grounds of
copyright infringement. Whether these shadow libraries are committing
copyright infringement and whether an injunction must follow is in the
domain of copyright law and laws pertaining to civil relief. I do not
propose to examine that issue. I want to take a step back and examine
whether our copyright law is in line with our constitutional scheme.

An inquiry of an allegation that a law violates the fundamental right

to free speech, guaranteed under Article 19(1)(a) of the Indian
Constitution, goes as follows: it first needs to be proven that the law
restricts the right provided in Article 19(1)(a); if that venture
succeeds, then it is on the State to prove that the restriction, first,
has basis in one or more of the grounds provided in Article 19(2), and
second, is reasonable. It is my submission that an interpretation of
our copyright law that allows the plaintiffs to prevail in this ongoing
litigation restricts the right to free speech as granted in Article
19(1)(a), and that such restriction does not have basis in any ground
in Article 19(2).

Restriction on the Right to Freedom of Speech?

The right that is immediately affected by the banning of these shadow

libraries is the right to receive information, which has been
interpreted as a part of Article 19(1)(a). As is evidenced in the
abovementioned ongoing litigation, if the suit succeeds, then because
of copyright law, the general public would not be able to receive
information. Thus, copyright law does restrict the right to receive
information, and hence Article 19(1)(a). Of course, one may make an
argument that the general public is still free to pay the fee required
by the publishers for accessing materials available freely on these
shadow libraries, but given the steepness of the fee, most of the
general public would effectively not receive this information at all.
[The argument here pertains only to educational materials – books,
journals, research articles, documentaries etc. While there may be
constitutional issues pertaining to other subject matter covered by
copyright law, that is beyond the scope of this piece.]

In this regard, one might take the example of American jurisprudence on

this issue to argue that speech that infringes copyright is not
protected under the right to free speech. In the US, it has been held
by the Supreme Court that copyright law does not infringe the First
Amendment right to free speech. However, the argument that speech
infringing copyright is unprotected is not an attractive argument with
respect to the Indian Constitution. The structure of the right to free
speech in the First Amendment is such that the Court itself is free to
find the grounds on which it can be restricted – which it has. The US
Supreme Court has developed grounds on which speech can be restricted –
clear and present danger, obscenity etc. However, the structure of the
right in India is different – the Court is not left free to determine
grounds on which the right granted under Article 19(1)(a) can be
restricted; the Court is bound by the grounds for restrictions provided
in Article 19(2). If a law has a direct and inevitable impact on the
right granted in Article 19(1)(a), it is said to restrict such right.
The direct and inevitable impact is starkly visible in the ongoing
litigation.

Reasonable Restriction under Article 19(2)?

Article 19(2) has the following grounds on which restrictions to the

right to free speech in Article 19(1)(a) can be made: “sovereignty and
integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality,… contempt of court,
defamation or incitement to an offence”. Of these the only grounds that
appear to be justifying copyright law are friendly relations with
foreign states, decency and morality.

Friendly Relations with Foreign States

Perhaps a feeble argument could be made using “friendly relations with

foreign states”. One could make an argument that not implementing
copyright law would lead India to violate the TRIPS Agreement, thereby
causing harm to “friendly relations with foreign states”. If this
argument is accepted, however, then the Parliament would be free to
enter into any international treaty providing for restrictions on
speech, and then claim that treaty as a ground for restricting free
speech. Surely the Parliament’s power to enter into international
agreements (and thereby create relations with other states) is limited
by the right to free speech; any other position could give the
Parliament a carte blanche to impose any restrictions whatsoever on
free speech.

Decency or Morality

Coming back to decency and morality: till now, they have been invoked
in relation to obscenity and some cases pertaining to election laws.
One may make an argument that it would be immoral for person X to
commercially exploit person Y’s creative work, and since copyright law
prevents this from taking place, copyright law is squarely covered by
this ground. It needs to be noted that “morality” is now interpreted as
constitutional morality and not public morality, the scope of which is
unclear. At least one aspect of constitutional morality has been
implicitly, if not directly, identified by the Supreme Court. In Navtej
Singh Johar, the Court relied upon the notions of equality and anti-
discrimination as being important values that guide constitutional
morality to hold that section 377 of the Indian Penal Code was
unconstitutional insofar as it criminalized consensual sex between two
adults of the same sex. In the question of whether our copyright law
passes the test of constitutional morality, are equality and anti-
discrimination relevant like they were in Navtej Singh Johar?

In this analysis of “morality” one would have to evaluate the moral

counterweights to copyright law. Is it moral to take refuge behind
copyright law and impose difficult paywalls to educational content? In
our country, where access to education is linked to one’s class
membership, and where education is correlated to social mobility,
realities of life are affected by education. SpicyIP has also covered
in a past piece affordability difficulties faced by even the best of
educational institutions in India. In this reality, surely, the answer
to the question asked at the beginning of this paragraph would be an
emphatic no.

Therefore, at least to the extent that our copyright law prohibits

access to educational materials, it is not moral. It follows then that
to the extent that our copyright law prohibits access to educational
materials, it is not covered by the ground of “decency and morality” in
Article 19(2).

Of course, given the amorphous nature of the words “decency and

morality”, the Court can do some interpretational gymnastics to hold
that copyright law is moral, but I hope that the Court also evaluates
the moral counterweights to the need of protecting original works.

The Balancing Approach

There is also a line of argument according to which fundamental rights

in conflict can be “balanced”. That line of argument has found favour
with the Indian Supreme Court as well. Without commenting on the merits
of balancing Article 19(1)(a) rights with other rights, it is important
to see what rights can potentially be in conflict with Article 19(1)(a)
in the context of copyright law. One such right is the right to
property under Article 300A. Given the constitutional scheme, though, a
fundamental right should trump the right to property, and a question of
balancing would not even arise.

Another such right could be the right to trade under Article 19(1)(g),
using which publishing houses and other copyright owners may make an
argument that their business is dependent entirely on exclusivity (and
hence copyright). However, the Article 19(1)(g) right is not absolute,
and can be restricted on the wide ground of “public interest”. If one
accepts the morality argument in the previous part of this article,
then it is obvious to see that access to educational materials is in
public interest – access to educational materials leads to better
access to education for those who cannot ordinarily access it, and then
to better chances of social mobility. Any argument raised by the
plaintiffs in the ongoing litigation pertaining to their right in
Article 19(1)(g) can, therefore, be repelled by taking refuge in the
public interest exception in Article 19(6). Therefore, in the context
of availability of educational materials, the balancing-with-Article
19(1)(g) argument is a non-starter.

For the sake of completion, it is also important to note that it is not

as if the drafters of the Constitution were unaware of copyright. The
first copyright legislation in India was enacted in 1914, i.e. much
before the enactment of the Constitution. Further, “copyright” is in
fact mentioned in the 49th entry in List I of the Seventh Schedule.
However, since legislations are “subject to the provisions of the
Constitution”, an argument that copyright law is valid because the
framers of the Constitution envisaged copyright law is also a non-
starter; copyright law has to be subject to Article 19(1)(a) not just
because of Article 13 (which provides that laws infringing fundamental
rights are void to the extent of infringement), but also because of
Article 245 (which provides for power of Parliament to legislate).

The Way Ahead

Irrespective of how this litigation ends, the conversation that it has
triggered about the link between copyright law and free speech rights
must be continued. This conversation can lead to two solutions: First,
an amendment in copyright law that either compels copyright owners to
make educational materials available at a reasonable cost (a statutory
license scheme?) or clarifies the exceptions to copyright infringement
to the effect that research is not inhibited by exercise of copyright.
Second, the Constitution can be amended to include “copyright” as a
ground in Article 19(2). As things stand in the Constitution, however,
I submit that to the extent that our copyright law inhibits research,
it invalidly restricts the right in Article 19(1)(a), and therefore, to
that extent, it is void. The ongoing litigation, therefore, must, on
constitutional grounds if not copyright-related grounds, be decided in
the favour of the defendants.

Author’s note: I would like to acknowledge Swaraj Barooah, Dr. Arul

Scaria, Shrutanjaya Bhardwaj and Aishwarya Kane for their inputs on
this post.