India–EU FTA and Copyright Protection

21 Sep 2026

Tags: International Relations   Groupings   Regional Agreements

Source: The Hindu

Context: The European Commission has formally requested EU member states to approve the signing and conclusion of the India–European Union (EU) Free Trade Agreement (FTA).

• The draft FTA’s Intellectual Property (IP) Chapter contains detailed copyright provisions with potential implications for India's digital copyright framework.
• The provisions have raised concerns because they could require changes to the Copyright Act, 1957, particularly regarding exceptions available to students, researchers, archivists and Internet intermediaries.

Structural Asymmetry in the Draft

• India's Copyright Act, 1957 is aligned with international obligations under the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
• Although the draft IP Chapter recognises both parties' commitments to international IP agreements, it reportedly excludes the WCT from the National Treatment clause under Article 10.8.
• The WCT was specifically designed to protect copyright and authors' rights in the digital environment, including software and databases, while also addressing technological protection measures.
• According to the article, excluding the WCT from the National Treatment provision could make India's existing digital copyright limitations and exceptions vulnerable to challenge.

National Treatment and Its Significance

• National Treatment is an international IP principle requiring a country to provide foreign nationals protection comparable to that provided to its own nationals, subject to applicable treaty rules and exceptions.
• The article argues that excluding the WCT from the FTA's National Treatment framework while incorporating certain WCT-related enforcement obligations creates a structural imbalance.
• This could reduce India's flexibility to maintain domestic copyright exceptions that support education, research and technological innovation.

The Three-Step Test

• Article 10.21 of the proposed FTA contains a relatively narrow “three-step test” for limitations and exceptions to copyright.
• The test is intended to determine when copyright exceptions are permissible and is associated with international copyright law, although its formulation and application differ across legal frameworks.
• The concern raised is that if India's existing statutory exceptions are not expressly protected, foreign rightsholders could challenge certain uses currently permitted under Section 52 of the Copyright Act.

Impact on Fair Dealing

• Section 52 of the Copyright Act provides specified exceptions to copyright infringement, including forms of fair dealing and other permitted uses.
• These exceptions are important for activities such as education, research, criticism, review and certain technical processes.
• The article warns that foreign rightsholders could potentially challenge some digital uses currently protected under Section 52 if the FTA obligations override these domestic flexibilities.

Technological Protection Measures (TPMs)

• Technological Protection Measures (TPMs) are technological controls such as encryption and digital locks used by copyright owners to restrict unauthorised access or copying.
• Section 65A of India's Copyright Act provides protection against circumvention of TPMs while retaining specified exceptions.
• Section 65A(2) permits certain forms of circumvention for legally permitted purposes.
• The article highlights that this balance could be affected if the FTA imposes stronger anti-circumvention obligations without preserving India's existing statutory exceptions.

Impact on Students and Researchers

• Sections 52(1)(ab) and 52(1)(ac) provide important exceptions concerning software-related activities.
• Engineering students and security researchers can, within the statutory conditions, observe, study, test or reverse-engineer software for purposes such as interoperability and identifying security vulnerabilities.
• Modern software frequently uses encryption and digital access controls, meaning legitimate research may sometimes require bypassing technological restrictions.
• A stricter anti-circumvention framework could therefore create a chilling effect on software research, cybersecurity research and technical education.

Impact on Libraries and Archives

• Increasing digitisation of books, historical records and research material has made Digital Rights Management (DRM) increasingly relevant to libraries and archives.
• Archivists may need to bypass technological restrictions and format-shift digital material to preserve fragile, obsolete or out-of-print works.
• The concern is that a rigid anti-circumvention regime could restrict such preservation activities even when they are undertaken for legitimate public-interest purposes.

Access to Educational Materials

• Higher education increasingly depends on electronic journals, books, databases and other digital resources.
• Paywalls and DRM can restrict access to educational material, making statutory copyright exceptions particularly important for students and academic institutions.
• The article links this concern to the Delhi University Photocopy Case, where copyright law and access to educational materials were considered in the context of students' academic needs.

Threat to Internet Service Providers and Intermediaries

• Sections 52(1)(b) and 52(1)(c) of the Copyright Act provide protection for certain temporary and transient copies created during routine electronic transmission and data routing.
• Such copies may occur in Random Access Memory (RAM), server caches and network infrastructure without constituting conventional commercial copying.
• India's framework therefore attempts to balance copyright protection with the technical functioning of the Internet.

FTA and Temporary Digital Copies

• Article 10.11(a) of the draft FTA reportedly grants rightsholders an exclusive right over “temporary or permanent” reproductions.
• The article argues that this could conflict with the Agreed Statements associated with Articles 8 and 10 of the WCT, which recognise that certain transient network copies should not automatically attract copyright liability.
• If India's existing safeguards are weakened, Internet Service Providers (ISPs) and digital intermediaries could face greater exposure to copyright claims arising from routine network operations.

Broader Policy Concerns

• The central concern is the possible erosion of India's digital copyright flexibilities that currently accommodate education, research, archival preservation and Internet functioning.
• Stronger copyright enforcement can protect creators and rightsholders, but excessive restrictions may also affect access to knowledge, innovation and technological research.
• The issue therefore involves balancing intellectual property protection with public-interest exceptions.

Key Concepts

• WIPO Copyright Treaty (WCT): A WIPO-administered treaty addressing copyright protection in the digital environment, including issues concerning computer programmes, databases and technological protection measures.
• TRIPS Agreement: The World Trade Organization (WTO) agreement establishing minimum standards for intellectual property protection and enforcement among WTO members.
• Copyright: A form of intellectual property protecting original literary, artistic, musical and other creative works, subject to statutory limitations and exceptions.
• Fair dealing: Statutorily permitted uses of copyrighted works for specified purposes under Indian law, subject to prescribed conditions.
• Digital Rights Management (DRM): Technologies used by rightsholders to control access to, copying or distribution of digital content.
• Reverse engineering: Analysing a software product or system to understand its functioning, including for legally permitted purposes such as interoperability or security research.

Way Forward

• India should seek to preserve its existing statutory copyright exceptions while negotiating stronger protection for intellectual property.
• The WCT should be appropriately incorporated into the National Treatment framework so that digital copyright obligations remain consistent with its limitations and exceptions.
• Negotiations should ensure adequate safeguards for education, research, archival preservation, cybersecurity and routine Internet operations.
• India's trade negotiations should maintain a balance between protecting creators' rights and preserving access to knowledge and technological innovation.
• Any amendments to the Copyright Act should be undertaken through India's domestic legislative process, with Parliament assessing their implications for public interest and digital innovation.