Draft India-EU FTA Copyright Chapter Threatens Safe Harbours for ISPs, Students and Libraries

The news

NEW DELHI — The European Commission has formally asked EU member states to approve the signing and conclusion of the India-EU Free Trade Agreement, and details of the draft Intellectual Property Chapter have become public. In The Hindu, Zakir Thomas, IPR Chair at National Law School of India University, Bengaluru, and Biswajit Dhar, formerly IPR Chair Professor at JNU, argue that the copyright provisions would require amendments to India’s Copyright Act, 1957. Their central point concerns the National Treatment clause (Article 10.8). National treatment means each partner must give the other’s rightholders the same protection it gives its own. The draft affirms both sides’ commitments to the WIPO Copyright Treaty (WCT) and TRIPS but omits the WCT from this clause — while Footnote 1 of Article 10.8(1) extends ‘protection’ to enforcement against circumvention of technological protection measures, or TPMs (Article 10.18), and rights management information (Article 10.19). The result, they say, is that India keeps the WCT’s enforcement mandates but loses the WCT’s exceptions for digital works (its Article 10). Limitations and exceptions under the FTA (Article 10.21) follow a narrow ‘three-step test’ borrowed from EU copyright statutes, so foreign rightholders could challenge India’s fair-dealing exceptions under Section 52. Three groups are named. Internet service providers are shielded under Sections 52(1)(b) and (c) for temporary copies made in RAM and server caches during routine data routing, and the notice-and-takedown regime of Rule 75 of the Copyright Rules, 2013 rests on these safe harbours; the draft grants an unqualified right over all “temporary or permanent” reproductions under Article 10.11(a), contrary to the Agreed Statements to Articles 8 and 10 of the WCT. Students and security researchers may lawfully reverse-engineer and test software under Sections 52(1)(ab) and (ac), and Section 65A(2) lets them bypass a digital lock for a lawful purpose without criminal liability; a strict anti-circumvention regime could make them offenders. Libraries and archives that format-shift out-of-print works could lose that right. The authors say negotiators “seem to have gone beyond the Indian Parliament’s mandate”, invoke the DU Photocopy case, and urge them to re-insert the WCT into the National Treatment clause.

Static syllabus linkage

1. India’s Copyright Act protects users as deliberately as it protects owners. The Copyright Act, 1957 grants authors exclusive rights but Section 52 lists acts that are not infringement, including fair dealing for private use, research, criticism and reporting, educational use, and transient storage in the course of electronic transmission. Section 52(1)(b) and (c) cover transient and incidental storage by intermediaries, and Section 52(1)(ab) and (ac) permit reverse engineering for interoperability and observing or testing a program. The 2012 amendment added Section 65A on technological protection measures and 65B on rights management information.
2. The WCT is the internet-era copyright treaty, and India joined it in 2018. The WIPO Copyright Treaty, 1996 extends copyright to the digital environment, covering computer programs and databases and obliging members to protect TPMs and rights management information. Its Article 10 allows limitations and exceptions, and the Agreed Statements clarify that these may be extended into the digital environment. India acceded to the WCT and the WIPO Performances and Phonograms Treaty in 2018.
3. The three-step test decides how wide exceptions may be. First set out in Article 9(2) of the Berne Convention and repeated in Article 13 of TRIPS, the test allows exceptions only in certain special cases that do not conflict with normal exploitation of the work and do not unreasonably prejudice the rightholder’s legitimate interests. How strictly it is read determines whether broad educational exceptions like India’s survive. A narrow reading, as the authors fear, favours rightholders.
4. ‘TRIPS-plus’ is the term for commitments beyond the WTO floor. TRIPS sets minimum standards of IP protection for all WTO members. Free trade agreements often add stricter obligations, known as TRIPS-plus provisions, such as longer terms, stronger enforcement or narrower exceptions. India has historically resisted TRIPS-plus commitments, most visibly on pharmaceutical patents under Section 3(d) of the Patents Act.

Why UPSC loves this

1. IPR and trade agreements recur across GS2 and GS3. The GS3 syllabus lists ‘issues relating to intellectual property rights’, and GS2 covers bilateral agreements affecting India’s interests. UPSC has asked about TRIPS flexibilities and the National IPR Policy; a trade agreement’s IP chapter joins both.
2. Prelims tests treaty names and statutory sections. Questions on WIPO treaties, the Berne Convention and what the Copyright Act covers have appeared in Prelims. The India-EU FTA makes the WCT and Section 52 likely material.

Analysis

1. The asymmetry is the whole problem. Keeping a treaty’s obligations while excluding its flexibilities is not neutral drafting; it moves the balance in one direction. The WCT was itself a compromise between authors and the public, with enforcement on one side and exceptions on the other. An FTA that imports only the first half creates a stricter regime than either party accepted multilaterally. If the authors’ reading is correct, India would be accepting in a bilateral deal what it would never accept at WIPO.
2. Trade treaties can amend domestic law by the back door. The authors’ sharpest claim is that negotiators went beyond Parliament’s mandate. Under Article 253, Parliament has power to legislate to implement treaties, but the executive negotiates and signs them without prior parliamentary approval. Once signed, a treaty that requires amendment of the Copyright Act leaves Parliament with a choice between amending the law and placing India in breach. That is an argument for parliamentary scrutiny of trade texts before signature, not after.
3. The ISP safe harbour matters to the whole internet economy. Every web page, stream or download creates temporary copies in memory and caches. If those copies need permission, intermediaries face liability for ordinary routing, and the notice-and-takedown system becomes unworkable. This is not a student’s concern but an infrastructure concern affecting telecom operators, cloud providers and platforms. It is the part of the critique most likely to find allies in India’s industry.
4. The counter-view: stronger IP may attract European content and investment. European negotiators would argue that stronger enforcement protects creative industries, and that the FTA brings tariff gains for Indian textiles, leather and pharmaceuticals far larger than any copyright cost. The treaty may also contain general language affirming each side’s right to use exceptions. The question is therefore whether specific drafting fixes, as the authors propose, can be obtained without reopening the deal. Targeted revisions are more realistic than rejection.

Administrator's brainstorm