India-EU FTA: Copyright Rules and India’s Digital Sovereignty

India-EU FTA Latest News

• The European Commission has formally asked EU member states to approve the signing and conclusion of the India-EU Free Trade Agreement. Details of the commitments in covered areas, including intellectual property, are now public.
• The draft IP Chapter carries detailed copyright provisions. Experts argue that these provisions could force amendments to India’s Copyright Act, 1957, and weaken exceptions that students, researchers, archivists and internet service providers currently rely on.

The Structural Asymmetry

• India’s Copyright Act conforms to international IP treaties, including the WIPO Copyright Treaty (WCT) and the TRIPS Agreement. 
• The draft chapter affirms both parties’ commitment to these treaties. But it does something curious.
• It omits the WCT from the National Treatment clause (Article 10.8), while retaining the WCT’s enforcement mandates.

Why This Matters

• The WCT was adopted specifically to protect works in the digital environment, particularly software and databases.
• It also provides for Technological Protection Measures (TPMs).
• Crucially, its Article 10 permits limitations and exceptions to copyright for digital works.
• Excluding the WCT from National Treatment means these flexibilities would no longer be available to India.
• Footnote 1 of Article 10.8(1) deepens the problem. It expands “protection” to cover enforcement against circumvention of TPMs (Article 10.18) and Rights Management Information (Article 10.19).
• The result is an imbalance. The treaty’s enforcement obligations are binding; its public-interest exceptions are excluded. 
• The WCT’s core principle — balancing authors’ rights against public interest in education and research — is abandoned, leaving only a rigid enforcement mandate.

‹ ›

The Narrow Three-Step Test

• Article 10.21 of the FTA introduces a narrow “three-step test” for limitations and exceptions, borrowed from EU copyright statutes.
• If India’s existing exceptions are not expressly preserved, foreign rightsholders could challenge the fair dealing provisions under Section 52 of the Copyright Act. 
• This includes transient or incidental storage of a work purely in the technical process of electronic transmission. 
• Under Article 10.11 of the FTA, such acts could attract civil and criminal remedies.

Threat to Section 65A

• The imbalance directly threatens Section 65A of the Copyright Act, which governs TPMs.
• Section 65A(2) provides exceptions permitting circumvention of digital locks for specified lawful purposes. 
• Because of this, a student or researcher who bypasses a lock to perform an act protected under Section 52 attracts no criminal liability today. 
• A strict anti-circumvention regime under the FTA would erode this safeguard.

Chilling Effect on Classrooms and Labs

• Indian law today lets students and researchers open up software to test compatibility or find security flaws. 
• Librarians may copy digital works to preserve old books. Strict anti-circumvention rules would make both illegal.
• Paywalls and Digital Rights Management (DRM) would then override public-interest protections that Indian courts secured, most famously in the DU Photocopy Case.
  • The DU Photocopy Case was a landmark intellectual property lawsuit in India where top publishers sued a Delhi University photocopy kiosk for copyright infringement. 
  • In 2016, the Delhi High Court ruled that making educational coursepacks is legal under fair use.

Threat to Internet Service Providers

• India currently shields intermediaries from liability for the temporary, transient copies created in RAM and server caches during routine data routing. 
  • This protection flows from Sections 52(1)(b) and (c). 
  • The notice-and-takedown regime under Rule 75 of the Copyright Rules, 2013 rests on these statutory safe harbours.
• The draft text undermines this. Article 10.11(a) grants rightsholders an exclusive, unqualified right over all “temporary or permanent” reproductions.
• This contradicts the Agreed Statements to Articles 8 and 10 of the WCT, which exempt transient network copies from liability.
• With the WCT excluded from the National Treatment exception, Indian ISPs could face systemic liability from EU rightsholders.

Beyond Parliament’s Mandate

• Analysts contend that by accepting the draft text, negotiators appear to have gone beyond the mandate of Parliament, as reflected in the Copyright Act, 1957. 
• If uncorrected, Parliament would be obliged to delete digital-work exceptions from the Act — even where the user was engaged in legitimate, lawful research.
• Negotiators must press to re-insert the WCT into the National Treatment clause and preserve India’s statutory copyright flexibilities.
• The underlying argument is that India’s rise as a digital power rests on open access to knowledge, robust educational inquiry and independent technical research. 
• Deepening trade ties with the EU is important, but not at the cost of digital sovereignty.

Conclusion

• The dispute is not about protecting creators. It is about who decides the balance between protection and access. 
• A treaty that imports enforcement while leaving exceptions behind is not balanced law. India must negotiate flexibilities in, not trade them away.

Source: TH