India’s Academic Publishing Crisis: The Unsettled Fault Line in Copyright Law

Introduction

The controversy surrounding platforms like Sci-Hub and LibGen is more than a simple legal brawl over ‘piracy‘; it is the visible tremor of a far deeper structural fault line running beneath Indian academia. The real crisis is not the illicit downloading of papers, but the architecture of knowledge ownership itself: the virtually unquestioned legality of the zero-royalty copyright assignment agreements that underpin global scholarly publishing. This tension brings us to two critical, and largely dormant, provisions of the Copyright Act, 1957, as overhauled in 2012: Section 19(3), which makes the specification of royalties mandatory, and Section 19A, which empowers courts to intervene in harsh contracts. The application of these powerful, untested rules to the unique academic ecosystem where prestige, not pay, is the author’s currency reveals a profound paradox: a law meticulously drafted to empower creators and secure fairness risks the unintended consequence of further restricting public access and deepening the chasm between research and the people who need it.

The most direct legal challenge to the status quo lies in Section 19(3): The Royalty Mandate. The 2012 amendments significantly tightened the requirements for a valid copyright assignment. Previously, the section required specifying royalties “if any.” This was revised to a mandatory requirement: “The assignment of copyright in any work shall also specify the royalty and other consideration payable to the author…” This change was largely motivated by concerns over exploitative contracts in the film and music industries, where artists were often coerced into signing away all rights for a minimal, one-time fee. The courts, in cases following the amendment, have consistently interpreted this section as requiring a quantifiable, ongoing financial benefit for the author. The mandatory nature of the royalty mandate was reinforced by the Supreme Court in cases related to the film and music industries. The ruling in Indian Performing Right Society Ltd. v. Entertainment Network (India) Ltd. (2022)¹, though addressing performance rights, fundamentally underscored the legislative spirit of the 2012 amendments: that the creator retains an inalienable right to an equitable, quantifiable share of the revenue generated from the commercial exploitation of their work.

This principle establishes that “other consideration” cannot merely be a non-financial reward like peer review or prestige; it must be a real, calculable payment designed to ensure the author’s continuous economic interest in the work’s commercial success. Applying this strict interpretation, the vast majority of academic journal agreements—which specify zero financial royalty—would be rendered invalid under Section 19(3).

However, this statutory mandate collides directly with the standard operating procedure of academic journal publishing. Globally, journal agreements require authors to execute a zero-royalty assignment of copyright. Publishers justify this by citing the substantial costs they bear—managing peer review, editing, indexing, and dissemination—which they claim is the author’s true consideration. Authors accept this because their actual reward is non-financial: scholarly visibility, career advancement, and reputation. The journal acts as a gatekeeper to these crucial professional benefits. Consequently, if Section 19(3) were strictly applied, it would render the vast majority of existing academic copyright assignments invalid for failing to “specify the royalty.”

Economically, enforcing this mandate presents a difficult paradox. While the law aims for fairness, the financial value of a royalty per academic article, given its niche readership, would be negligible for the author. Crucially, publishers operate in highly concentrated markets, giving them significant bargaining power. Any new cost, such as mandatory royalties, would likely be passed on to universities and libraries through steeper subscription rates. The irony is that a rule intended to bridge the gap between author and reader risks doing the opposite: the royalty, a minimal distributive gain for the author, becomes a new cost barrier for the public, deepening the systemic access problem that the law implicitly seeks to mitigate. The attempt to secure financial fairness thus clashes with the public-regarding purpose of copyright: the broad dissemination of knowledge.

Should an author choose to challenge their assignment contract, the question of remedy falls under Section 19A. This section empowers the courts to intervene and even revoke an assignment if the terms are found to be “unduly harsh to the assignor.” A zero-royalty agreement, particularly if deemed invalid under Section 19(3), could theoretically fit this description. However, revocation is the last thing an academic author wants, as losing the assignment means the article would be pulled from the journal, disrupting crucial indexing, citations, and the established record of their scholarship. This would destroy the very reputational benefit that motivated the publication in the first place.

The author would realistically seek royalties, not termination. Yet, this raises insurmountable practical difficulties: How should a court calculate them? Metrics based on subscription revenue, download counts, or citation impact are all complex, require data disclosure from reluctant publishers, and invite endless litigation over what constitutes a “reasonable” payment. The core issue is transaction costs. The administrative and legal expense of designing, monitoring, and enforcing a royalty payment system across global jurisdictions for tens of thousands of individual articles would vastly outweigh the minimal financial return an individual author could expect. The effort would simply generate administrative friction and legal uncertainty without significantly improving author welfare, suggesting that judicial intervention in this context is both inefficient and impractical.

Conclusion

Section 19(3) places an untested, uneasy fault line at the heart of Indian academia. The law demands a financial consideration (royalty) where the academic ecosystem provides a reputational one. While the moral thrust of the 2012 amendments towards author protection is sound, its strict application here risks worsening the public access crisis by increasing subscription costs. The path forward requires institutional design solutions such as mandating robust Open Access policies that effectively protect authors and disseminate knowledge without relying on a royalty model that is economically unviable and counterproductive in the context of scholarly publishing.

Citations

1.  Indian Performing Right Society Ltd. v. Entertainment Network (India) Ltd.  2012 SCC OnLine Del 2645 (DB)

Expositor(s):  Adv. Archana Shukla