Knowledge as (Constitutional) Commons, Knowledge as Commodity: Assessing the Implications of Delhi HC’s Sci-Hub Order through Boyle’s ‘Second Enclosure Movement’
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Knowledge as (Constitutional) Commons, Knowledge as Commodity: Assessing the Implications of Delhi HC’s Sci-Hub Order through Boyle’s ‘Second Enclosure Movement’
By Sarthak Gupta
On 19 August 2025, the Delhi High Court (DHC) ordered the complete blocking of Sci-Hub and its sister platform Sci-Net, holding them to be “rogue websites” engaged in large-scale copyright infringement (See the brief analysis here). The DHC Order represents one of the most decisive judicial attempts in India to restrict digital access to scientific works on public free access hosts like Sci-Hub. (See the earlier discussion on this blog here). Although the order was passed consequent to Sci-Hub’s violation of its 2020 undertaking stating that it will not upload any articles post 2020, it marks a critical turning point for Indian education, research, and the country’s place in global knowledge systems.
To critique the DHC outcome and discuss the intent behind the blocking order, I refer to James Boyle’s work, “The Second Enclosure Movement and the Construction of the Public Domain” (2003), which explains how expansive intellectual property regimes fence off knowledge once held in the public domain. In this (theoretical) post, I use Boyle’s theory to urge that the Delhi High Court’s order entrenches a process of knowledge enclosure in India, producing grave consequences for education, research, and scientific progress.
James Boyle’s “Second Enclosure Movement”
Boyle situates the expansion of modern intellectual property rights within a broader historical trajectory. The first enclosure movement in England during the seventeenth and eighteenth centuries involved the privatization of common lands that had long sustained rural communities. Fields and forests that had been freely accessed for grazing, fuel, or subsistence were fenced off, transferred into private hands, and defended through law. The losers in this process were the peasants who had depended on shared resources; the winners were those who could assert ownership backed by the state. For Boyle, this episode provides a powerful metaphor for contemporary transformations in the realm of knowledge. The “second enclosure movement,” as he terms it, involves the expansion of property rights into domains of information, culture, and science that were once understood as part of the public domain. Genetic sequences, computer software, business methods, and vast tracts of cultural production have become subject to claims of ownership. Intellectual property law has, thus, shifted from being an exceptional regime of limited monopolies, justified in the name of promoting progress, into a pervasive framework that treats knowledge as a commodity to be fenced, defended, and exchanged.
Central to Boyle’s argument is the recognition that the public domain is not merely a negative space or a leftover after rights expire. Rather, it is an affirmative and essential part of cultural and scientific life. Just as physical commons sustain communities, the intellectual commons sustains creativity, education, and innovation. Artists, scholars, and scientists draw upon it constantly, often unconsciously, to create new works. To diminish the public domain through excessive privatization is to impoverish the very conditions of cultural and scientific flourishing. Boyle also stresses the inequitable nature of enclosure. The gains accrue to concentrated private actors, typically corporations with the means to enforce their rights, while the costs are borne by diffuse users, students, educators, and the general public, who lose access to resources they once relied upon. He observes that while there are detailed legal and normative justifications for property, there is no equally robust theory to defend the public domain. The absence of such a counterweight enables enclosure to advance with relatively little resistance. The ultimate risk is the transformation of culture and science into closed estates, accessible only to those with sufficient means to pay for entry.
DHC Order’s Implication via Boyle’s Enclosure
The implications of the DHC order against Sci-Hub is best understood not by parsing each paragraph of judicial reasoning, but by considering its sweeping outcome, the complete blocking of access to one of the world’s largest repositories of scientific knowledge (Sci-Hub is a repository of over 85 million academic papers). This outcome exemplifies the dynamics of Boyle’s “second enclosure movement.” By branding Sci-Hub as a “rogue website” akin to entertainment piracy portals, the Court collapses the crucial distinction between sites that facilitate access to knowledge and those that distribute pirated entertainment. The result is to fence off the intellectual commons of science, treating access to it as illegitimate trespass rather than as participation in a collective resource (See here).
The implications for Indian education and research are severe. Sci-Hub has long served as a lifeline for students, teachers, and scientists unable to afford subscription fees that even elite universities struggle to bear. (For an example of these expensive subscription fees one can see that the University of California alone paid $13 million to Elsevier in 2021.) The DHC’s action may have formally arisen from breach of an earlier order undertaking rather than a ‘copyright enforcement measure’, but its effect is unmistakable, as an act of enclosure that entrenches inequality in access to knowledge (See here). This distributive blindness mirrors precisely the inequities Boyle warns against, i.e., the benefits accrue to global publishers, while the costs fall disproportionately on Indian researchers and students, whose intellectual horizons are now fenced in. The irony is acute, given that much of the research being locked away is publicly funded. Taxpayer resources finance universities and laboratories, yet the published results are fenced off by private publishers who then extract rents from the same public institutions. By endorsing this cycle of privatization, the DHC has advanced the privatization and enclosure of India’s intellectual commons
The DHC order also underscores how proportionality has been misapplied. The Court justified that whole-site blocking was necessary, but proportionality in constitutional jurisprudence requires examining less restrictive measures and balancing against rights such as freedom of expression and education (See here). The bluntness of the remedy, as adopted by Delhi HC, demonstrates Boyle’s insight that enclosure often proceeds through expansive measures justified as necessary efficiency. Most fundamentally, the outcome of the DHC, reinforces a vision of knowledge as a commodity. Scientific articles are treated solely as private property belonging to publishers, whose rights must be protected against trespass. Boyle would describe this as the commodification of the intellectual commons. The practical effect of the DHC’s would be the commodification of the intellectual commons and the foreclosure of equitable access to knowledge in India.
India and its Constitutional Knowledge Order
Building on Boyle’s framework and the outcome of the DHC’s blocking order, the implications for India extend well beyond breach of undertaking. The decision signals a shrinking of the “constitutional commons”, the cluster of rights Indian Constitutional Courts have recognized as essential to a knowledge society. Over the past two decades, the Supreme Court and High Courts have affirmed that access to education under Article 21A, the right to receive information under Article 19(1)(a), and even meaningful internet access are integral to dignity, liberty, and democratic participation. By cutting off Sci-Hub and Sci-Net, the Court has undermined this trajectory of expanding informational rights and widened the gap between legal doctrine and lived educational realities.
Unlike Western Courts (see here), the courts in the Global South have charted a more balanced path, integrating intellectual property with constitutional commitments. In South Africa, for example, the Constitutional Court in Blind SA v. Minister of Trade (2021) struck down copyright barriers to accessible books for visually impaired persons, explicitly prioritizing equality and access to information (See also here). In Brazil and Peru, courts have linked IP limits to education and health (see here and here); in Colombia, constitutional judges have subordinated patent monopolies to the right to essential medicines (see here). These cases reflect a sensitivity to distributive realities, recognizing that in contexts of structural inequality, strict proprietary regimes can entrench exclusion.
By contrast, the DHC’s order, although stemming from violation of an undertaking, made little effort to account for India’s context, where journal subscriptions and access to scholarships remain unaffordable for most institutions and individuals. The outcome entrenches knowledge privatization and, in Boyle’s terms, advances the “second enclosure movement.” Worse, it risks deepening what Fricker terms “epistemic injustice”, the systemic exclusion of Global South researchers from global knowledge production due to a lack of access. Blocking Sci-Hub thus not only fences off information but also marginalizes Indian scholars from international academic conversations, a profound constitutional and developmental setback.
Conclusion
By erecting proprietary fences around scientific knowledge, the Court in effect has prioritized the rights of global publishers over the constitutional vision of education, equality, and access to information. This is not just a copyright dispute; it is a pivotal moment for India’s knowledge future (see here). Without affordable alternatives, the ban risks silencing Indian scholars and deepening global academic inequalities. India must find a similar path or risk a lasting epistemic injustice, where knowledge remains locked away for all but the privileged few. Defending the intellectual commons is now a compelling constitutional imperative.
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