Lots of people are aware of the Constitutional underpinnings of our copyright system. Article 1, Section 8, Clause 8
famously says that Congress has the following power
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
We've argued at great length over the importance of the preamble of that section, "to promote the progress," but many people are confused about the terms "science" and "useful arts." In fact, many people not well-versed in the issue often get the two backwards and think that "science" refers to inventions, and thus enables a patent system, while "useful arts" refers to "artistic works" and thus enables the copyright system. The opposite is actually the case. "Science" at the time the Constitution was written was actually synonymous with "learning" and "education" (while "useful arts" was a term meaning invention and new productivity tools).
This can be seen even more directly in the fact that our very first copyright law, the Copyright Act of 1790
was subtitled, "An Act for the Encouragement of Learning."
While over the centuries, many who stood to benefit from an aggressive system of copyright control have tried to rewrite, whitewash or simply ignore this history, turning the copyright system falsely into a "property" regime, the fact is that it was always intended as a system to encourage the wider dissemination of ideas for the purpose of education and learning. The (potentially misguided) intent appeared to be that by granting exclusive rights to a certain limited class of works, it would encourage the creation of those works, which would then be useful in educating the public (and within a few decades enter the public domain).
Even today, long after the original intent and concept of copyright law have been so twisted and distorted by many, at least some elements of that original intent remain. After all, the fair use standard found in 17 USC 107
makes it clear that "reproduction.... for purposes such as... teaching..., scholarship, or research, is not an infringement of copyright.
" It's difficult to be much more direct than that.
And yet... when it comes to how our copyright system acts in practice, things are a lot more murky. Back in December, we wrote about a rather troubling case in New York, in which (widely despised
) publishing giant Elsevier (which used its copyright monopoly to help pharmaceutical companies create fake medical journals
touting the benefits of drugs) was able to get an injunction against the domain
of the website for Sci-Hub, run by Alexandra Elbakyan, a researcher born and educated in Kazakhstan, but now living in Russia.
(at its current domain) is actually fairly clever. It first searches a separate public repository of scientific research papers called Libgen. If it can't find it, it then uses credentials quietly provided by like-minded researchers who have authorized access to various paywalled collections of journal articles, and returns a copy -- and also
deposits a copy with Libgen for future uses as well. The story got some news in copyright circles, such as here, but in the last week or so has started flowing into more maintream areas as well. It started first with an article at BigThink.com, alternatively titled either "Meet the Robin Hood of Science
" or "A Pirate Bay for Science," which details Elbakyan's situation in quite a sympathetic manner:
The efficiency of the system is really quite astounding, working far better than the comparatively primitive modes of access given to researchers at top universities, tools that universities must fork out millions of pounds for every year. Users now don’t even have to visit the Sci-Hub website at all; instead, when faced with a journal paywall they can simply take the Sci-Hub URL and paste it into the address bar of a paywalled journal article immediately after the “.com” or “.org” part of the journal URL and before the remainder of the URL. When this happens, Sci-Hub automatically bypasses the paywall, taking the reader straight to a PDF without the user ever having to visit the Sci-Hub website itself.
If, at first pass the network fails to gain access to the paper, the system automatically tries different institutions’ credentials until it gains access. In one fell swoop, a network has been created that likely has a greater level of access to science than any individual university, or even government for that matter, anywhere in the world. Sci-Hub represents the sum of countless different universities' institutional access — literally a world of knowledge. This is important now more than ever in a world where even Harvard University can no longer afford to pay skyrocketing academic journal subscription fees, while Cornell axed many of its Elsevier subscriptions over a decade ago. For researchers outside the US' and Western Europe’s richest institutions, routine piracy has long been the only way to conduct science, but increasingly the problem of unaffordable journals is coming closer to home.
Rightfully, this is being celebrated as a massive boon to science and learning
, making these otherwise hidden nuggets of knowledge and science that were previously locked up and hidden away available to just about anyone. And, to be clear, this absolutely fits with the original intent of copyright law -- which was to encourage such learning. In a very large number of cases, it is not the creators of this content and knowledge who want the information to be locked up. Many researchers and academics know that their research has much more of an impact the wider it is seen, read, shared and built upon. But the gatekeepers -- such as Elsveier and other large academic publishers -- have stepped in and demanded copyright, basically for doing very little.
They do not pay the researchers for their work. Often, in fact, that work is funded by taxpayer funds. In some cases, in certain fields, the publishers actually demand that the authors of these papers pay
to submit them. The journals do not pay to review the papers either. They outsource that work to other academics for "peer review" -- which again, is unpaid. Finally, these publishers profit massively, having convinced many universities that they need
to subscribe, often paying many tens or even hundreds of thousands of dollars for subscriptions to journals that very few actually read.
Last fall, we noted people were using the Twitter tag "#icanhazpdf" as a sort of informal system
to request other academics share paywalled research with them. As Elbakyan notes, Sci-Hub was really just an attempt to automate such a system:
Today many researchers use the #icanhazpdf hashtag on Twitter to ask other benevolent researchers to download paywalled papers for them, a practice Elbakyan describes as “very archaic,” pointing out that “especially in Russia, the Sci-Hub project started a new era in how research work is done. Now, the requests for information are solved by machines, not the hands of other researchers. Automation made the process of solving requests very effective. Before, hundreds of requests were solved per day; Sci-Hub turned these numbers into hundreds of thousands.”
Late last week, the story got even more attention when the popular ScienceAlert website wrote its own story
sympathetic to Elbakyan as well. And while that article does seek to balance out viewpoints both for and against what she's doing, it does appear to be fairly sympathetic towards her actions -- which is a far cry from the way the press normally covers attempts at increasing free access to copyright-protected materials.
Both of these recent articles also point to the incredible letter
penned by Elbakyan to the judge in the NY case, making the moral argument for why what she is doing should be seen as perfectly fine -- highlighting again that the actual authors don't seem to mind and that the only one complaining appears to be Elsevier which (again) is not paying the actual authors anything.
I would like to clarify the reasons behind sci-hub.org website. When I was a
student in Kazakhstan university, I did not have access to any research papers.
These papers I needed for my research project. Payment of 32 dollars is just
insane when you need to skim or read tens or hundreds of these papers to do
research. I obtained these papers by pirating them. Later I found there are lots
and lots of researchers (not even students, but university researchers) just like
me, especially in developing countries. They created online communities (forums)
to solve this problem. I was an active participant in one of such communities in
Russia. Here anyone who needs research paper, but cannot pay for it, could place
a request and other members who can obtain the paper will send it for free by
email. I could obtain any paper by pirating it, so I solved many requests and
people always were very grateful for my help. After that, I created sci-hub.org
website that simply makes this process automatic and the website immediately
That is true that website collects donations, however we do not pressure anyone
to send them. Elsevier, in contrast, operates by racket: if you do not send money,
you will not read any papers. On my website, any person can read as many papers
as they want for free, and sending donations is their free will. Why Elsevier
cannot work like this, I wonder?
I would also like to mention that Elsevier is not a creator of these papers. All
papers on their website are written by researchers, and researchers do not
receive money from what Elsevier collects. That is very different from music or
movie industry, where creators receive money from each copy sold. But
economics of research papers is very different. Authors of these papers do not
receive money. Why would they send their work to Elsevier then? They feel
pressured to do this, because Elsevier is an owner of so-called "high-impact"
journals. If a researcher wants to be recognized, make a career - he or she needs
to have publications in such journals.
What I written here is not just my opinion - this topic is widely discussed in
research community. For example, a researcher John Willinsky wrote a book
named "The Access Principle: The Case for Open Access to Research and
Scholarship" where he discusses this problem. The general opinion in research
community is that research papers should be distributed for free (open access),
not sold. And practices of such companies like Elsevier are unacceptable, because
they limit distribution of knowledge. In 2012, there was an "Elsevier boycott"
organized by a prominent mathematician Timothy Gowers to battle such
"The Cost of Knowledge is a protest by academics against the business
practices of academic journal publisher Elsevier. Among the reasons for the
protests are a call for lower prices for journals and to promote increased open
access to information. The main work of the project is to ask researchers to
sign a statement committing not to support Elsevier journals by publishing,
performing peer review, or providing editorial services for these journals."
I would like to also mention that we never received any complaints from authors
or researchers, only Elsevier is complaining about free distribution of knowledge
on sci-hub.erg website.
This kind of letter clearly did not work, in that the judge still granted the injunction -- but it has to raise the question: if this kind of thing is not "promoting the progress of science" akin to what the Constitution set out as the purpose of copyright, then what better system is there? As Elbakyan notes, this particular situation may be somewhat different, as compared to the sharing of music or movies, but it does seem to highlight a clear case where copyright is being used in a way that seems so fundamentally, conceptually and morally
opposed to its entire purpose.
I've also seen some compare what Elbakyan is doing to what the DOJ insisted that Aaron Swartz was intending to do when he downloaded a ton of academic research
from JSTOR. It was never proved that this is what Swartz intended to do -- and he never directly said one way or another if that was his plan. But the DOJ went after him with criminal charges anyway. I imagine that if he were alive today, he'd be quite happy to not only see Sci-Hub in existence, but that it appears to be getting sympathetic press coverage as well. One hopes that it can continue to be an inspiration to others as well.
If copyright law is actively being used to hinder education and learning -- and the "progress of science" -- shouldn't we be questioning what the hell it's doing and whether or not what we have is even remotely constitutional?
Meanwhile, as Mike Taylor has pointed out, prior to Elsevier suing, Sci-Hub wasn't that widely known and yet now it's getting tons of press coverage
. There's a phrase for that kind of thing, isn't there?