Vol. 18 Issue 2 (2022)
Bringing Shadow Libraries out of Legal Shadows: An Opportunity for the Delhi High Court
Rahul Bajaj and Anchal Bhateja
At the heart of the copyright bargain is the need to strike a balance between fostering creativity, by incentivizing producers of intellectual property and promoting the interests of the public at large. These two are often in tension with each other. Some cases bring this tension into sharp focus. The ongoing litigation in the Delhi high Court, on the legality of shadow libraries - Libgen and Sci Hub - is one such case. The case has seminal importance for ensuring that the right to education is duly respected and fulfilled. In this paper, we argue that this litigation offers the Delhi High Court an opportunity to build on its progressive jurisprudence on the educational exception embodied in Indian Copyright Law and to further push its frontiers, by regarding these shadow libraries as falling within the ambit of the fair dealing exceptions, and holding their access to be a facet of the Constitutionally guaranteed right to education. We hope that our contribution will assist stakeholders involved in the litigation and others to work towards fashioning a solution to the litigation that enables continued access to these shadow libraries, as that is what the public interest in this case demands.
Rahul Bajaj is an academic and practitioner in the fields of intellectual property law and constitutional law. Views are strictly personal and must not be attributed to any entity. Anchal Bhateja is a final year student at the National Law School of India University, Bangalore.