On December 21, 2020, three major publishing houses – Elsevier, Wiley, and the American Chemical Society – filed a copyright infringement suit against the websites Sci-Hub and Libgen in the Delhi High Court demanding that Sci-Hub and Libgen be completely blocked in India. The publishers claim that Sci-Hub and Libgen are engaged in violating various exclusive rights conferred on them under copyright law by providing free access to their copyrighted contents. Through this article we wish to mount a full-throated defence of Sci-Hub and Libgen. The article first review the history of academic publishing, so as to contextualise the piracy that Sci-Hub and Libgen engage in. This historical approach will fully clarify to the reader not only how bad things are, but also how things got this way.
On December 21, 2020, three major publishing houses – Elsevier, Wiley, and the American Chemical Society – filed a copyright infringement suit against the pirate websites Sci-Hub and Libgen in the Delhi High Court. The crux of the issue at hand has been neatly summarised as follows:
“In a nutshell, the publishing giants are demanding that Sci-Hub and Libgen be completely blocked in India through a so-called dynamic injunction. The publishers claim that they own exclusive rights to the manuscripts they have published, and that Sci-Hub and Libgen are engaged in violating various exclusive rights conferred on them under copyright law by providing free access to their copyrighted contents.”[1]
The defendants in this case are no doubt familiar to our readers: Sci-Hub and Libgen provide unconditional free access to almost all scholarly academic literature and books. To give the reader a sense of just how wide their coverage is, it is estimated that Sci-Hub allows access to 85% of all papers published in all pay walled journals. [2] The same goes for Libgen, which allows access to not just academic monographs, but popular fiction and non-fiction titles as well.
That these publishing conglomerates should pursue legal action against a website that threatens their profit margins is unsurprising, of course. And yet, social media is filled to the brim with the voices of students and independent researchers sharing with us what Sci-Hub and Libgen mean to them, how it has been instrumental in their intellectual development, what it has enabled them to do, and what we stand to lose if the plaintiffs prevail. Through this article we wish to join in this chorus, and mount a full-throated defence of Sci-Hub and Libgen.
It is helpful to first review the history of academic publishing, so as to contextualise the piracy that Sci-Hub and Libgen engage in. This historical approach will fully clarify to the reader not only how bad things are, but also how things got this way.
A Brief History of Academic Publishing
Since the publication and distribution of academic literature is a cost-intensive operation, requiring raw materials (paper, ink) and manpower (typesetting, printing), the earliest models of academic publishing relied solely on the generosity of patrons, a role adopted at various times by wealthy elites, governments, or learned societies. Academic publishing was not, until very recently, viewed as a profitable enterprise, due in part to the large costs involved and the relatively small market for the finished product. Instead, for example, learned societies (with help from their patrons and benefactors) would subsidise the cost of publication of important academic texts, which would then be given to universities for free, the goal being the dissemination of the fruits of academic labour. The results of scientific research were viewed by learned societies as something like a commons, i.e. a universally accessible public good. [3]
In the twentieth century, especially after World War II (WWII), much of this changed. A growing international community of researchers witnessed (indeed, precipitated) a concomitant explosion of scientific journals. In fact, a classic study of journal publishing across three centuries (1660–1960) revealed an exponential growth of academic journals, with the number of journals doubling roughly every fifteen years, a trend that continues to the present day. [4] In the United Kingdom, for example, the expansion of universities and (comparatively) generous funding for libraries coincided with the post-WWII growth of academic publishing, at least until the 1980s.[5]
It is during this period of expansion that the rules of the game changed to more closely resemble the status quo today. Beginning with Robert Maxwell’s Pergamon Press, and with older commercial presses following suit soon after, a new logic would come to govern academic publishing houses. They would now depart from traditional academic publishing practices in that the publishers would now (i) publish primary scientific research, instead of scientific newsletters and periodicals, and (ii) sell to institutions instead of individuals, because institutions could be charged more than individual subscribers. The growing international market for scientific literature was identified and promptly pressed into the service of capital, and academic literature went from commons to commodity. Where academic publishing was once a foolish investment, with the adoption of new strategies it quickly became a profitable industry:
“From the 1950s to the 1970s, publishers of all types developed increasingly sophisticated sales and marketing strategies; and they also recognised that certain costs could be reduced by sharing them between multiple journals or book series. Economies of scale encouraged academic publishers to get bigger, either by launching new journals, or by acquiring existing ones from smaller publishers. This was part of a wider pattern of mergers and acquisitions in the publishing industry, that had started in the 1960s and was intensified in the late twentieth century by the need to address the costs and opportunities of digital technologies.”[6]
These “mergers and acquisitions in the publishing industry” have led to a handful of companies (Springer Nature, Elsevier, Wiley-Blackwell, and Taylor & Francis) controlling a significant share of the market — an oligopoly. Remember the last paper you read? Chances are it was probably published in a journal managed by one of these publishers. To give the reader a sense of the numbers involved:
“For example, the RELX Group—the corporate owner of the publisher Elsevier, the Scopus database (an aspirational competitor to WoS [Web of Science]), the prestigious journals Cell and The Lancet, and the publication database ScienceDirect, among other products—boasts in its 2018 annual report that its Scientific, Technical & Medical division organized “the review, editing and dissemination of 18% of the world’s scientific articles.” By its numbers, the group received a whopping 1.8 million article submissions to 2,500 journals, overseen by 20,000 editors and countless peer reviewers, and in the process reaped $3.3 billion in revenue. Subscriptions constituted 74% of that revenue.”[7]
The downside to all this was the pressure it placed on universities and libraries, which were forced to purchase increasingly expensive journal subscriptions so that their researchers could remain competitive. The arrival of the Internet, and the dawn of online academic publishing, saw publishing houses resort to newer connivances such as “bundling” and the sale of individual articles to readers at extortionate prices:
“Typically, one or a small handful of corporate publishers (e.g., Elsevier, Springer Nature, Taylor and Francis) owns the top journals within a discipline. Those publishers have sufficient market control that subscription to their content is almost mandatory for libraries that strive to serve an active research community. Publishers use this market power to their advantage in negotiations with libraries and other institutional subscribers. Rather than offering individual journal subscriptions, large publishers and content providers typically offer libraries subscriptions to packages of journals. Just as cable companies force customers who desire one or a few channels to pay for a package including access to hundreds of channels, so too publishers require libraries and other institutional subscribers to pay for packages containing hundreds or thousands of titles to gain access to the relatively few that they need. Libraries have the option to purchase individual titles á la carte, but publishers set the costs for individual titles so high that for a library to break a package deal but retain high-use journals typically does not save much money. Furthermore, some publishers’ annual subscription packages are structured to punish libraries that elect not to continue a package by depriving them of access to the content that they paid for in previous years. With many journals held by libraries only in digital form, institutions thus have little choice but to pay what the publishers demand for content packages if they want to maintain access to back issues.”[8]
These strategies are deployed solely to further extract wealth from (largely) publicly funded institutions. In fact, the publishing industry is regarded as a sound investment:
“The Web of Science suite, including the Journal Citation Reports and the Science Citation Index, is similarly profitable. These products were purchased from Thompson Reuters by the private equity firms Onex Corporation and Baring Private Equity Asia in 2016 for $3.5 billion and set up as an independent company named Clarivate Analytics. Clarivate Analytics then merged with Churchill Capital, a “Special Purpose Acquisition Corporation,” in early 2019 in a deal valued at $4.2 billion. Churchill Capital reports that the merger “earned a total return of 51% … over an 8-month hold period” for investors in its initial public offering. The resulting corporation is listed on the New York Stock Exchange and is thus very much subject to the year-over-year profit expectations of publicly traded stocks. The de facto arbiters of quality of science, and the stewards of the scientific literature, are now accountable not to science but to shareholders.”[9]
The irony in all of this is that the product on sale — the actual content of research articles — was subsidised by the public in the first place. And this brings us neatly to our next section.
The Taxpayer Argument of Access to Knowledge
Most research is funded by the public taxpayer via grants disbursed by government agencies, as is evident by the research outputs of the publicly funded institutions.[10] Researchers, on the other hand, are paid salaries by their employers and mostly write to communicate new results and findings to a larger global community of researchers, and for impact within the discipline, rather than money. Successfully published and impactful work results in them scoring “career points” in the process. Academics, therefore, write their research articles with a focus on what is likely to be “true” rather than what is likely to “sell”.[11]
A publisher is an intermediary who wants to “sell” the work of the academic and gain profits through the coordination and execution of this sale. Due to this financial imperative, which seems perfectly natural on the part of the publisher, they are moved to create barriers to access, wherein the researcher is forced to pay to access research that is “paywalled.” To ensure the effective of this paywall — for otherwise their business model could be easily circumvented and access would be possible without having to do business with them as intermediaries — they, in the process of publishing, make sure that the authors transfer the copyright to publishers.[12]
In this system, the researchers, who were the sole copyright holders of their work, transfer their rights to the publisher and pay the publishing costs. This prevents the authors, too, from using their own work for any further scholarly activities such as copying, sharing, etc. Finally, although the taxpayer effectively pays for the research, they do not have access to its eventual outcome, viz. the research paper. Therefore, the taxpayer ends up paying twice to access scientific papers behind paywalls — the tax they initially pay and the access fee.[13] This is only one form of the “taxpayer argument” for open access, focusing on overpayment. There is another form that focuses on misuse, which holds that “tax money should be spent in the public interest, not to create intellectual property for the benefit of private publishers, who acquire it and profit from it without paying the authors or compensating the public treasury.”[14]
Value Generation and the Value of Rejection
In the above described simple model of creating and publishing research, the academic donates time, labour, and is granted access to public money to create new knowledge. The keys to this knowledge, so to speak, are handed over to the publisher without any charge. Editors (in most cases) and peer reviewers working with academic journals operated by publishing houses donate their time to improve and validate the research, thereby adding further value to it, despite often not being monetarily remunerated. (In fact, it is considered an honour within the academy to be asked to serve on the editorial board of a journal — this is another “career point”.)[15] Eventually, the research gets published and the authors pay the publishing costs. Throughout this pipeline, the publishers often provide the least value to the whole process and generally demand complete ownership rights.[16] Their revenue and survival depend on limiting access to the knowledge originally produced by academics. Like dragons, they hoard knowledge. Let us look more carefully at the question of whether publishers actually provide value to the research generated by the academics.
There is an air of mystery created around publishing costs, but it can be broken down.[17] Generally publishing houses report huge profit margins, with Elsevier reporting a 30–40% profit margin in 2017–19.[18] There are of course expensive elite journals who charge significantly more than others, for example Nature. The explanation provided for the high cost of these elite journals is that they “do more” and they tend to be more selective. Some publishers also put in extra effort in terms of creating additional content such as editorials, commentary articles, etc. in addition to the regular research articles that are published. However, the question remains: does this add significant value?[19]
Publishers boldly claim that they provide value not only to the research papers they publish but also to the research community as a whole. This is the value of rejection. Elite journals publish a meagre fraction of the number of articles they receive and reject the rest. This rejection usually happens at the peer review stage on grounds other than scientific validity and they “guide” papers to more “appropriate” journals, thereby retaining their status of “prestige” and at the same time, claiming that it is a “service” they provide to the researchers.[20]There are problems with this, of course. Firstly, this skews research priorities within the community being serviced by said journals, with researchers more likely to work on the “hot” or “fashionable” topics since these are more likely to get published in prestigious journals. Secondly, it feeds the crisis of reproducibility.[21] Thirdly, negative results are less likely to be published since they are less “eye-catching”. These effects plainly serve the interests of capital, not science.[22]
While many academics would agree that community impact and citations are a better, although still imperfect, indicator of a researcher’s merits than the false sense of prestige associated with publishing in an elite journal, the same academics fall for this simplistic assignment of value, where someone decides (sometimes arbitrarily) how appropriate your work is for their journal and shunts you up or down the ladder of respectability.[23] As we shall see later, academics often equate this elitism with scientific rigour. However, unlike academics, publishers and the journals they run are governed by market forces rather than the scientific validity of the work that is published.[24] Further, they stand to profit from the process of decision making and can easily populate some journals while gate-keeping others. In short, they benefit from the inequality of publication.
The Evolution of Open Access
To address the problems of (i) affordable access to knowledge, (ii) copyright transfer and (iii) the extortionate cost of publication, the research community came up with Open Access, henceforth abbreviated OA.[25]
Paywalls make access to knowledge costly and make it difficult for researchers to share their work freely, a difficulty exacerbated by the high price tags preventing individual researchers from covering publication and subscription costs. We, therefore find a gap that needs to be filled in by public or private agencies covering the publication costs and institutions and libraries covering the subscription costs. These costs can be crippling, even for these large institutions:
“The entire University of California university system recently dropped its subscription to all Elsevier-published journals, citing a desire to transition to open access publishing and an unwillingness on the part of the publisher to meet their related demands. The venerable Max Planck Society in Germany, with 14,000 associated researchers, dropped its Elsevier subscription when the publisher was unwilling to meet its demands regarding open access publishing. The same is true of consortia representing 300 universities in Sweden and Germany, and France dropped Springer Nature over similar disputes. Innumerable individual universities, including Cornell University and Florida State University, and other subscribers are actively choosing to drop or being forced by financial considerations to substantially reduce their access to journal packages offered by Elsevier, Springer Nature, Taylor and Francis, and other profit-oriented publishers.”[26]
In India too, apart from a handful of elite research institutions, most universities simply cannot afford journal subscriptions. For these reasons, there is significant academic support for OA, not only from researchers but also from funding agencies. Simply put, OA is the kind of access that authors are free to provide directly to their readers.[27]
OA articles are published under the CC-BY (Creative Commons) licence, which comes within the legal framework of copyright law.[28] This licence helps authors retain copyright for their work and legally requires publishers to maintain the reuse rights of their work. This is a useful step towards complete knowledge access and acts as an incentive for the authors to write.[29] Funding agencies also not only prefer but also frequently mandate open research sharing practices.[30]
In the early days of its adoption, researchers were of the notion that open practices present a risk to career advancement and compromise scientific rigour due to improper or complete lack of peer review.[31] The idea that OA journals have poor or non-existent peer review processes is a myth because the review process has it’s own limitations independent of the kind of access; indeed, even subscription journals have fallen prey to retractions due to the poor quality of peer review. OA journals do not necessarily compromise on rigour or peer review and therefore the open access route should not be considered high or low in prestige.[34] This led to the development of various flavours of OA and a clear distinction between repositories and OA journals.[32]Repositories (or Green OA) do not perform peer review, whereas OA journals (or Gold OA) perform their own peer review.[33] There are many other types of OA and there has been a shift towards OA in one flavour or another in many research communities.
Further, there is ample evidence now that publishing openly is associated with a higher citation rate, as well as more media coverage. All these contribute to an academic’s “career points” and thereby raise the impact the researcher can make. The idea that OA journals have poor or non-existent peer review processes is a myth because the review process has its own limitations independent of the kind of access; indeed, even subscription journals have fallen prey to retractions due to the poor quality of peer review.[34] OA journals do not necessarily compromise on rigour or peer review and therefore the open access route should not be considered high or low in prestige.[35]
In fact, many elite subscription journals such as Nature have realized that researchers prefer OA due to its benefits over their exclusive subscription-only models and are now giving researchers and funding agencies an “option” to also provide open access to their work after publication. This was considered a “landmark” decision by elite journals, where you are provided with an option to publish with open access in Nature for the outrageous sum of €9,500 per OA paper.[36] Other prestigious journals also decided to follow suit with similar OA pricing options.[37]
Since then, a coalition of funding agencies have asked publishers to “provide data to break down how publishing fees relate to the services they provide.” The exorbitant cost of the OA route has been characterized by Peter Suber, director of the Harvard Office for Scholarly Communication, as a “prestige tax” where the publishers charge for their “value of rejection” — a completely market driven, non-scientific validity they provide to guide researchers to the “appropriate journal” — nothing more.[38]
In summation, publishers have responded to the demand for OA not by providing open access but by choosing to retain their elitism and charging an extortionate fee for the “Open Access” option.[39] This is all quite contrary to the method used by many researchers in the fields of mathematics, high-energy physics, and computer science, where pre- and post-reviewed versions of their work are uploaded onto the arXiv, an online preprint repository that costs only about $800,000 per year to run.[40]
Often, the pressure to pay these OA charges fall on public funds. Indian science academies, when making their recommendations on a national framework for access to science and technology literature, were faced with the question of spending public funds in OA charges levied by “prestigious” journals. The suggestion to create “a recommended list of journals that are approved for use of public funds to pay the publication and/or OA charges” was countenanced with the following very level-headed response:
“This suggestion, however, has been contested in view of the following considerations: i) perception of ‘high profile’ journals varies in the diverse fields of S & T research and given the very diverse areas of active research in the country, a list of such approved journals would always be contentious, become unmanageable, and may even lead to undesirable practices. This has happened with several such lists of ‘approved journals’ prepared by other agencies in the country; and ii) the idea of greater ‘credit/prestige’ for publication in ‘high profile’ journals is contradictory to the policy guidelines that lay emphasis on what is published rather than on where published.”[41]
While OA represents a positive development in the field of scientific publishing, much work remains to be done towards consolidating academia’s collective commitment to the open publishing paradigm, and more importantly, opening access to researchers all around the world, not just those working in private universities in the Global North with sizeable endowments. It is clear that the kind of OA on offer from Springer and Elsevier is not open access as much as it is a rearrangement of the status quo in being unaffordable to the majority of the global scientific community.
The root of the cancer plaguing academic publishing is the oligopoly of corporate publishing houses. As long as they hold the reins of academic publishing, stand-alone measures like OA might bring about some small measure of relief, but will inevitably fall short of realising a society where knowledge is free. To shift the focus from where is it published to what is published, we must break the oligopoly of corporate academic publishing. This in turn can only happen if we seize the means of publication and organise academic publishing ourselves.
This concludes Part I. In Part II, we will dwell briefly on what we believe is a useful analogy for the evolution of the academic publishing industry, after which we will argue that Sci-Hub represents a revolutionary solution to the problems we have highlighted here.
FOOTNOTES
[1] Scaria, A. G. (2020, December 22), Sci-Hub Case: The Court Should Protect Science From Greedy Academic Publishers, The Wire Science.
[2] Himmelstein, D. S., Romero, A. R., Levernier, J. G., Munro, T. A., McLaughlin, S. R., Tzovaras, B. G., & Greene, C. S. (2018), Sci-Hub Provides Access to Nearly All Scholarly Literature, eLife.
[3] As with everything, this should not be accepted uncritically, since the earliest societies reserved membership for upper class men. For this reason, early academic culture has been aptly described as ‘gentlemanly’, see Morrell, J., & Thackray, A. (1981), Gentlemen of Science: Early Years of the British Association for the Advancement of Science, Oxford University Press.
[4] de Solla Price, D. J. (1963), Little Science, Big Science, Columbia University Press.
[5] See pp. 7–8 of Fyfe, A., Coate, K., Curry, S., Lawson, S., Moxham, N., & Røstvik, C. M. (2017), Untangling Academic Publishing: A History of the Relationship between Commercial Interests, Academic Prestige and the Circulation of Research, University of St. Andrews.
[6] Ibid, p. 9.
[7] Neff, M. W. (2020), How Academic Science Gave Its Soul to the Publishing Industry, Issues in Science and Technology 36 (2) 35–43.
[8] Ibid., p. 39.
[9] Ibid., p. 40.
[10] From p. 6 of Chakraborty, S., Gowrishankar, J., Joshi, A., Kannan, P., Kohli, R. K., Lakhotia, S. C., Misra, G., Nautiyal, C. M., Ramasubramanian, K., Sathyamurthy, N., & Singhvi, A. K. (2020), Suggestions for a National Framework for Publication of and Access to Literature in Science and Technology in India, Joint Recommendation of INSA, IAS, and NASI. We quote the relevant part: “Most research in science, technology, medicine, agriculture, etc, is carried out with funding from the Government of India’s Departments of Science and Technology (DST), Biotechnology (DBT), Atomic energy (DAE), Space (DoS), Council of Scientific and Industrial Research (CSIR), Defense Research and Development Organization (DRDO), Ministries of: Environment and Forests (MoEF), of Earth Sciences (MoES), Indian Council for Medical Research (ICMR), Indian Council of Agricultural Research (ICAR), and similar other Government agencies at state and national levels. Occasionally, non-governmental agencies (including charities) and industry also provide grant for research in domains of their interest. Besides generating new basic and/or applied knowledge, large numbers of students at graduate, post-graduate, doctoral and post-doctoral levels get trained through such support for research. Most doctoral theses are thus funded by the grants from one of the funding sources mentioned above.”
[11] See p. 2 of Suber, P. (2012), Open Access, The MIT Press. This is, admittedly, an idealised statement, referring to a “scientist in a vacuum”. Of course, in the real world, the pressures of career advancement will occasionally drive academics to publish fraudulent work, engage in plagiarism, etc.
[12] Ibid., p. 9.
[13] See Suber, P. (2003), The Taxpayer Argument for Open Access, SPARC Open Access Newsletter, Issue #65.
[14] Ibid.
[15] See p. 17 of Suber, P. (2012).
[16] Ibid., p. 37. We are speaking, of course, of the situation as it is today, where authors are largely responsible for typesetting papers themselves on modern word processing software, and most research papers are accessed online. Before the dawn of the Internet and before personal computers were widely used, one could still make the argument that typesetting, and printing and distribution of journal volumes were valuable services provided by the publishers. This is no longer the case.
[17] Van Noorden, R. (2013), The True Cost of Science Publishing, Nature 495 426–429.
[18] Editorial (2019), The Guardian View on Academic Publishing: Disastrous Capitalism, The Guardian; Elsevier Fact Sheet, MIT Libraries.
[19] Van Noorden, R. (2013).
[20] Ibid.; Prevoo, M., Aardening, R., & Wijk, I. (2020), A Plea for Fairer Sharing of the True Costs of Publication, The Scholarly Kitchen.
[21] Feilden, B. T. (2017, February 22), Most Scientists “Can’t Replicate Studies by their Peers”, BBC News.
[22] Vines, T. (2020), Articles Are the Fundamental Unit of Data Sharing, The Scholarly Kitchen.
[23] Randy Schekman (2013), How Journals Like Nature, Cell and Science are Damaging Science, The Guardian; Ravenscroft, J., Liakata, M., Clare, A., & Duma, D. (2017), Measuring Scientific Impact Beyond Academia: An Assessment of Existing Impact Metrics and Proposed Improvements, PloS One 12 (3) e0173152.
[24] See Van Noorden, R. (2013).
[25] See Suber, P. (2012).
[26] Neff, M. W. (2020).
[27] Ibid.
[28] Creative Commons (CC BY 2.0); McKiernan, E. C., Bourne, P. E., Brown, C. T., Buck, S., Kenall, A., Lin, J., … & Yarkoni, T. (2016), Point of View: How Open Science Helps Researchers Succeed, eLife 5 e16800.
[29] See Suber, P. (2012).
[30] Ben Mudrak. (2020), Open Access Mandates: The Changing Landscape of Scholarly Publishing, AJE Scholar; Funders and Institutions Requiring a CC BY Licence for OA Articles, Springer Nature.
[31] McKiernan, E. C. et al. (2016).
[32] Ware, M. and Mabe, M. (2015), The STM Report: An Overview of Scientific and Scholarly Journal Publishing, Digital Commons.
[33] See Suber, P. (2012).
[34] Hoax papers have been known to pass through peer review, as in the Bogdanov affair. And, of course, peer review cannot protext against shoddy standards in a field, as exmplified in the recent replication crisis.
[35] Ibid.; McKiernan, E. C. et al. (2016); Davis, P. (2018), Journals Lose Citations to Preprint Servers, The Scholarly Kitchen; Piwowar, H., Priem, J., Larivière, V., Alperin, J. P., Matthias, L., Norlander, B., … & Haustein, S. (2018). The State of OA: A Large-Scale Analysis of the Prevalence and Impact of Open Access Articles, PeerJ 6 e4375.
[36] Else, H. (2020, November 24), Nature Journals Reveal Terms of Landmark Open-Access Option, Nature 588 19–20.
[37] Elsevier Press Release (2020), Elsevier expands Open Access options for Cell Press Journals from January 2021, Elsevier.
[38] Trager, R. (2020), Springer Nature and Max Planck Reach Landmark Open Access Deal in Germany, Chemistry World; McKiernan, E. C. et al. (2016).
[39] See Pai, M. (2020), How Prestige Journals Remain Elite, Exclusive And Exclusionary, Forbes.
[40] McKiernan, E. C. et al. (2016).
[41] See p. 12 of Chakraborty, S. et al. (2020).
The above article was originally published at https://notacademy.in/2021/01/09/in-defence-of-piracy-part-i-knowledge-and-access/