The Sci-Hub litigation has dragged on for years without confronting the core question it presents: what is the purpose of copyright in academic works? As the Court circles procedural issues, Rishabh Upadhyay and Pragati Upadhyay argue that a deeper structural failure remains unaddressed, one that, in Hohfeldian terms, allows publishers to enforce claim-rights while evading their correlative duties. The result is a system that converts publicly funded research into privately controlled access. Before addressing the symptom, they argue, the law must reckon with the system that produced it. Rishabh Upadhyay and Pragati Upadhyay are final-year (5th Year) B.A. LL.B. (Hons.) students at the Faculty of Law, Banaras Hindu University (BHU). Their research interests focus on intellectual property law, with a specific focus on access and public interest.
(Part I) Right Without Duty: Academic Copyright, the Publisher’s Juridical Fiction, and the Case for an Ex Ante Reading of Section 52
By Rishabh Upadhyay and Pragati Upadhyay
This piece is presented in two parts. Part I diagnoses the structural juridical failure at the heart of academic copyright in India. Part II uses the ongoing Delhi High Court litigation in CS(COMM) 572/2020 — Elsevier Ltd. And Ors. vs Alexandra Elbakyan And Ors. as a vantage point to argue for a judicial reinterpretation of Section 52 as an ex ante affirmative access right.
As noted on this blog by Swaraj Paul Barooah, the Sci-Hub litigation remains caught in a procedural loop, resulting in a blocking order grounded in contempt rather than a substantive examination of copyright. While much has been said about the procedural ‘cuts’ and the validity of assignments, the structural juridical failure at the heart of academic copyright remains unaddressed.
A Symptom Before an Argument
In 2020, a group of major academic publishers filed a copyright infringement suit before the Delhi High Court against Alexandra Elbakyan — the founder of Sci-Hub — and Library Genesis. The suit, CS(COMM) 572/2020, is now in its sixth year. It has not been decided on merits. The only operative relief so far arrived in August 2025 — a blocking order (see order here) directing the Department of Telecommunications (DOT) and Ministry of Electronics and Information Technology (MeitY) to instruct internet service providers to block Sci-Hub and its sister platform Sci-Net. Critically, this order did not rest on a finding of copyright infringement after a merits hearing. It rested on Elbakyan’s breach of an undertaking (see para 6.2 of the order here) given to the Court in December 2020, and a prima facie finding of contempt.
This distinction matters. The Court has not yet determined whether Sci-Hub’s making available of academic articles constitutes infringement under the Copyright Act, 1957, or whether any defence, including fair dealing under Section 52, applies. Six years in, that question is entirely open.
This blog does not defend Sci-Hub. Its methods involve circumventing access controls, and no serious legal argument can excuse that. But the scale of Sci-Hub — over 88 million papers in its repository, with studies showing disproportionately high usage from developing countries including India — is not a moral accident. It is a structural symptom. Shadow libraries exist because legal access has failed at scale. Before this Court decides what to do about the symptom, it must reckon with the failure that produced it. That reckoning begins with understanding what academic copyright has become — and what it was always supposed to be.
The Functionalist Facade
In their critical history of intellectual property, Christopher May and Susan Sell identified a “functionalist” approach to IPR — the idea that property rights emerge and evolve because they are efficient: they reduce transaction costs, coordinate market activity, and provide clear signalling in economic relations. It is a tidy, self-justifying story. And it is precisely the story that the modern academic publishing industry tells about itself.
Publishers argue that their copyright control over academic works is legitimate because it funds peer review infrastructure, ensures perpetual digital preservation, and cross-subsidises niche journals that would otherwise collapse. The system works, they say, because it is efficient. The handful of publishers who, between them, control over half of all global scholarly output present their dominance not as a market distortion but as a rational settlement — a necessary price for the machinery of knowledge.
But May and Sell’s critical insight was precisely this: functionalism begs the question of efficient for whom. It naturalises what is, in fact, a politically constructed arrangement shaped by the continuous mobilisation of powerful interests. Applied to academic publishing today, this question becomes devastating. Major publishers, for example, Elsevier recorded profit margin of 38% in 2024 — comparable to the world’s largest technology companies — on products they did not write, did not fund, and for which they did not pay their primary quality-control workforce. The peer reviewers, like the authors, work for free. (For a discussion on reasons for not paying peer reviewers, see here.) The question of efficiency for whom answers itself. However, to understand the distortion, one must first understand what makes academic works fundamentally different from other copyrightable subject matter, which goes beyond the profit margins and towards the specific agency of those who actually create the knowledge.
The Inversion: How Academic Copyright Gets Turned Inside Out
A film producer, a music label, a software company — these entities create or commission works with a direct proprietary incentive. The economic return is the point. Copyright’s incentive theory, which presupposes that creation is motivated by the prospect of financial reward, maps cleanly onto these categories.
On the contrary, academic works operate on an entirely different logic. A researcher — often salaried by a public university, funded by state grants — publishes not for royalties but for reputation. (see here) The incentive is citability, dissemination, and peer recognition. The author’s primary interest is in the maximum spread of the work, not its restriction. This sui generis reputational incentive structure means that applying standard proprietary copyright logic to academic works is not merely a policy misstep — it is a categorical error. It misunderstands the social and epistemic purpose of the work itself.
Yet this is precisely what the contemporary system does — and the engine of this categorical error is the Copyright Transfer Agreement, or CTA. Before publication, the author is required to sign a CTA as a non-negotiable condition. It is a contract of adhesion: take it or leave it. The author’s career advancement — tenure, grants, institutional standing — depends on publication in high-impact journals. The publisher’s brand, which functions by trademark logic rather than copyright logic, is the gate. The author has no meaningful bargaining power.
Through this single instrument, a publisher who did not write the work, did not fund it, and acquired it for free becomes its sole legal copyright owner. It then erects a paywall — directly opposing the author’s original intent — and licenses access back to the very universities and researchers who created the work, at subscription rates that have grown at 5–6% annually between 2014 and 2024, vastly outpacing inflation. (see here) The Indian government now spends over 235 million US dollars annually through the One Nation One Subscription initiative simply to access paywalled research that Indian public institutions largely produce. (see here) The public funds the research, funds the peer review, and then pays again to read the output. This is not efficiency. It is circular rent extraction, a distortion that requires a precise analytical tool to deconstruct.
Hohfeld’s Scalpel: The Right Without Its Correlative Duty
Wesley Newcomb Hohfeld provided for that tool. Writing in 1917, he argued that the word “right” is used with dangerous looseness in legal reasoning — conflating four analytically distinct jural relations: claim-rights, privileges, powers, and immunities. Each has a precise correlative. A claim-right in one party entails a duty in another. A privilege entails a no-right in others. A power entails a liability. An immunity entails a disability. Precision in identifying which relation is actually at stake, Hohfeld insisted, is the prerequisite for coherent legal analysis.
For the purposes of this analysis, let us grant the publisher its claim-right entirely. Accept that the CTA is a valid transfer. Accept that the publisher is the lawful copyright owner. The more devastating question is not whether the publisher holds a claim-right — it plainly does — but what the correlative duty of that claim-right actually entails, and whether the publisher is discharging it.
This is where Section 14 of the Copyright Act, 1957, becomes the critical entry point. Section 14 defines copyright as “the exclusive right subject to the provisions of this Act.” Those six words are not boilerplate. They are the statutory architecture of the entire copyright bargain. The exclusive right — the claim-right in Hohfeld’s terms — does not exist in isolation. It is structurally conditioned by the Act’s own provisions. One cannot hold the right while disclaiming the conditions attached to it.
What are those conditions? Principally, they are the fair dealing provisions of Section 52 — which carve out spaces for private research, criticism, review, and educational use that the copyright owner cannot lawfully obstruct. In Hohfeldian terms, Section 52 is the statutory articulation of the publisher’s correlative duty. The publisher holds a claim-right against unauthorised reproduction, but it bears a corresponding duty not to obstruct uses the Act expressly permits. The exclusive right of Section 14 and the permitted uses of Section 52 are two sides of the same juridical coin.
The publisher’s paywall severs this relationship entirely. By erecting a technological barrier that makes access contingent on payment — including for uses Section 52 explicitly permits — the publisher enforces its claim-right in full while systematically evading its correlative duty. It collects the entire right and discharges none of the corresponding obligation. This is what the title of this piece identifies: a right without duty. In Hohfeld’s analytical framework, a claim-right that has shed its correlative duty is not a complete legal relation. It is a juridical perversion — the exclusive right of Section 14 stripped of the “subject to the provisions of this Act” that gives it its legitimacy.
The Two-Step Problem: Fair Dealing’s Illusory Promise
One might argue here that the Copyright Act already provides a corrective measure for this perversion: fair dealing contemplated in Section 52. If Section 14 provides for broad proprietary entitlement in favor of the publishers, Section 52 acts as the pressure valve, restoring the balance for the public. However, this defense rests on a structural illusion, treating the duty of the publishers as a passive obligation to not sue, rather than an active duty to permit access. To understand the nuance here, one must understand how fair dealing functions structurally.
Fair dealing is, structurally, a two-step process. Step one: the user must access the work. Step two: the user engages with it in a manner that constitutes fair dealing — quoting it, critiquing it, building upon it. The law, in its current formulation, is designed almost exclusively to regulate Step two. It asks: was the use fair? Was it for research? Was it proportionate?
What it does not ask — because it presupposes the answer — is whether Step one was possible at all.
The academic publishing model is uniquely designed to create a near-total blockade at Step one. Consider what fair dealing for criticism actually requires: a scholar must read the paper, analyse its methodology, situate it within existing literature, and quote from it to substantiate the critique. These acts of reading, analysing, and situating are fair dealing. They are not separable from access — they are constituted by it. A 40-dollar paywall on a single article is not a neutral market mechanism. It is a technological veto on the very possibility of exercising the statutory privilege.
This creates a legal absurdity that the current framework cannot resolve. Section 52 grants the user a privilege — in Hohfeld’s precise sense, a freedom from the duty to refrain from certain uses. But the publisher’s paywall ensures the user can never reach the position from which that privilege could be exercised. The law is prepared to adjudicate the fairness of a quotation. The publisher ensures the user cannot read the sentence to be quoted. The privilege exists on paper; it is extinguished in practice.
The right exists. The duty has been made to disappear. That asymmetry is the problem. The asymmetry is absolute, owing to the static legal interpretation. If the balance of the copyright has to be struck perfectly in the digital age, one must ask and inquire whether section 52 can be reimagined as an affirmative, ex ante right to access. And how that reinterpretation might be attained is a critical point which requires serious consideration in the ongoing SciHub litigation in the High Court of Delhi, and is the subject of Part II of this blog.