Continuing the discussion on the Scihub litigation, in Part II of their post, Rishabh Upadhyay and Pragati Upadhyay turn to the August 2025 order as a vantage point to examine what the litigation has, so far, failed to do. They argue that the procedural exclusion of intervenors and the Court’s reliance on contempt have sidelined the core question of academic access under Section 52. Building on this, they make the case for reimagining fair dealing as an ex ante right to access, rather than a post facto defence. 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 II) 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
The Litigation as a Missed Opportunity — So Far
The SciHub litigation has spent six years arriving at a blocking order grounded in contempt, not copyright. The August 2025 order of Justice Manmeet Pritam Singh Arora directed DoT and MeitY to block Sci-Hub and Sci-Net through ISPs — a significant enforcement measure, but one that addresses the symptom rather than the underlying legal question. The merits of the copyright claim, and crucially, the applicability of Section 52 to academic works accessed through shadow libraries, have not been examined.
There is a structural reason for this. Indian IP litigation is characterised by what might be called the interim relief race — the contest for injunction becomes the practical end-point of the dispute, with merits deferred indefinitely. The blocking order is in place. Sci-Hub is inaccessible from India. The access deadlock that drove millions of Indian researchers to Sci-Hub has not been addressed — it has merely been made more visible, and more total.
This matters because the substantive question — what does lawful academic access look like under the Copyright Act, 1957 — remains entirely unanswered by any Indian court, which left a void, a result of the fact that the most progressive precedent regarding the educational works stopped short of the finish line
What Rameshwari Recognised — And What It Stopped Short Of
The closest Indian judiciary has come to addressing fair dealing, recently, in the academic context is the Delhi High Court’s 2016 decision in The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services. The Court held that reproduction of course packs by a photocopy shop operating within a university campus fell within Section 52(1)(i) of the Copyright Act. The decision was significant: it refused to treat educational reproduction as automatic infringement and recognised that copyright’s purpose is to advance knowledge, not merely protect proprietary interests.
But Rameshwari was decided in a specific posture. The photocopy shop was defending against an infringement claim. Fair dealing was raised as a shield — a post facto defence against liability already asserted. The Court recognised the defence. It did not go further and ask: Does the user have an affirmative entitlement to access the work in the first place? Does Section 52, properly read, impose an obligation on the copyright holder not merely to tolerate certain uses but to permit access for those purposes as a condition of the right itself?
That question was not before the Court in Rameshwari. It is squarely before the Court in SciHub litigation — or it should be, once the matter reaches merits.
Section 52 as Ex Ante Right: The Argument the DHC Must Hear
In the digital era, the shield of fair dealing is rendered toothless if the user is never allowed to enter the field. To be effective, the shield must become a key. The conventional understanding of Section 52 treats fair dealing as reactive — a defence available once infringement is alleged. Under this reading, the user’s position is always subordinate: they must wait to be sued, then invoke the exception. The publisher never needs to justify the paywall; the user must always justify the access.
This reading is doctrinally available but not doctrinally compelled. As established in Part I, Section 14 defines copyright as an exclusive right subject to the provisions of this Act. That conditionality is not rhetorical — it is the juridical basis of the copyright bargain. If the right is conditional, the condition must have legal content. A condition that can be technologically nullified by the right-holder without legal consequence is not a condition at all — it is a formality.
A purposive reading of Section 52 — that copyright is a statutory grant designed to serve the public interest in the advancement of knowledge — treats fair dealing as generating an ex ante entitlement. Under this reading, a user engaged in private research or study has a vested legal interest in accessing the work. The publisher’s paywall is not a neutral market mechanism but a potential interference with a statutory entitlement. The question shifts fundamentally: it is no longer whether the user’s copying was fair, but whether the publisher had lawful justification for making access impossible in the first place.
This reinterpretation finds its strongest justification precisely in the context of academic works. As Part I argued, academic authors do not publish for royalties. Their primary incentive is dissemination. The publisher’s paywall directly frustrates the author’s own intent. When the Court addresses the merits, it will confront a situation where the copyright being enforced belongs not to the creator of the knowledge but to a commercial entity that acquired it through a non-negotiable contract of adhesion, and is using it in a manner that contradicts the creator’s purpose and the statute’s own stated conditions. That is the precise context in which an ex ante reading of Section 52 finds its strongest juridical footing.
The shift from exception to entitlement is not merely terminological. An exception is reactive — it operates as a defence after the fact. An entitlement is proactive — it establishes, at the moment of the user’s engagement with the work, that the publisher has a corresponding obligation. In the digital age, where paywalls and Digital Rights Management systems operate as automatic, technological vetoes on access, a passive right to copy is insufficient. The law must provide an instrument that guarantees an active entitlement to access, not merely the freedom to use, once access has somehow been obtained.
The Role Intervenors Must Play
However, the Delhi High Court cannot arrive at this reinterpretation in a vacuum, on its own initiative — it needs the argument made before it. That is where the role of intervenors at the merits stage becomes critical.
Any litigation of this magnitude over academic access ought to have robust public interest participation. The questions at stake affect every student, researcher, and institution in the country. Yet the August 2025 order reveals a troubling procedural reality. Intervenors who sought to participate — through I.A. 590/2021 — were effectively excluded from opposing the publishers’ relief. The Court’s reasoning in paragraph 6 of the order was precise: since the intervenors were unwilling to take responsibility for Elbakyan’s undertaking and its breach, they could not be heard to oppose the reliefs sought. (see order here)
The logic is understandable in the narrow context. But its structural effect is significant. It creates an impossible condition for public interest participation: to be heard opposing the blocking order, an intervenor must accept co-liability for Elbakyan’s contempt. No university, research institution, or student body would or should accept that condition. The result is that the only voices before the Court on the blocking question were the publishers seeking it. The access dimension of the dispute was argued by no one.
This is not a criticism of the Court’s order. It is an observation about the gap it reveals. The merits of hearing — when it arrives — must be structured differently. It must create space for intervenors to argue the Section 52 question affirmatively, independently of Elbakyan’s conduct and credibility. The public interest in academic access does not stand or fall with the conduct of Sci-Hub’s founder. It stands on its own juridical ground — the ground that Part I of this piece has attempted to establish.
The argument intervenors must make is entirely separable from the piracy question. It is this: whatever the Court decides about Elbakyan’s liability, it should simultaneously address what lawful access to academic works looks like under Section 52 — and whether the publisher’s paywall model is compatible with the conditional nature of copyright under Section 14. The existence and scale of Sci-Hub is not evidence that users want free content. It is evidence — as access pattern studies from developing countries consistently demonstrate — that the demand for academic knowledge is real, urgent, and unmet by legal channels. That unmet demand is what Section 52, properly read, was designed to address.
Universities, research institutions, and academic bodies in India are uniquely positioned to make this argument. They are simultaneously the producers of the research, the funders of peer review, the payers of subscriptions, and the bearers of the access failure. They have standing, they have institutional credibility, and they have the strongest possible interest in a merits decision that addresses the Section 52 question directly. The procedural trap identified in the contempt application — the co-liability condition — does not apply at the merits stage. In merits, the Section 52 question is open, and it needs voices to argue it.
Conclusion
With the SciHub litigation going on for six years, the Court has not yet been asked to decide whether the publisher’s paywall — not Elbakyan’s contempt, but the structural market condition that made Sci-Hub necessary — is compatible with the Copyright Act, 1957 as written.
Part I of this piece argued that it is not. Section 14’s conditionality and Hohfeld’s correlative duty analysis together reveal that the publisher’s claim-right, as currently exercised, has shed the obligation that gives it legitimacy. The right is enforced. The duty is evaded. The paywall is the instrument of evasion.
Part II has argued that the remedy is already in the statute, not as new legislation, but as a purposive judicial reinterpretation of Section 52 as an ex ante affirmative access right for academic works. The Delhi High Court stopped short of this in Rameshwari. It has the opportunity, at the merits stage of SciHub litigation, to go further. The institutional voice, which remained unheard at the contempt stage, must find a new path to the merits hearing. This is not about defending Sci-Hub’s conduct, but about ensuring that the Court finally hears the argument for the statute.
The functionalist account of academic publishing presents a rational, efficient system. The juridical account reveals a right without a duty, enforced by a paywall, legitimised by a contract of adhesion, and protected by a legal framework that has not yet decided what it owes the public that funded the knowledge it now locks away.
That decision is still to come. And it matters.
