India–EU FTA: Issue of Intellectual Property & Copyright

Syllabus: GS2/International Relations; Governance

Context

• The European Commission has sought EU member states’ approval for signing and concluding the India–EU Free Trade Agreement, bringing Intellectual Property and Copyright implications into focus.

About India–EU FTA & Intellectual Property

• The India–EU FTA seeks to deepen trade and economic ties between India and the European Union. 
• Its Intellectual Property (IP) chapter covers areas such as copyright, enforcement, technological protection measures (TPMs) and rights-management information.
• The draft India-EU FTA text raises concerns about whether existing Indian copyright exceptions and digital-policy flexibilities would remain protected.

Copyright Rules: EU and India

• WIPO Copyright Treaty specifically designed for the digital environment, protects authors’ rights while recognising limitations and exceptions, including those relevant to education and research.
• India’s Section 52 provides important copyright exceptions, including fair dealing and certain transient or incidental digital reproductions.
• Section 65A regulates TPMs while providing exceptions under Section 65A(2) for specified lawful purposes.
• Sections 52(1)(ab) and 52(1)(ac) permit software observation, testing and reverse engineering in specified circumstances, including interoperability and security research.
• Sections 52(1)(b) and (c) protect certain temporary and transient copies created during electronic transmission and data routing.
• The Copyright Rules, 2013, including Rule 75, provide the framework for notice-and-takedown procedures.

Key Concerns

• Structural Asymmetry in Copyright Rules: The draft IP chapter reportedly excludes the WIPO Copyright Treaty from the National Treatment clause, despite affirming commitments to international IP treaties.
  • At the same time, provisions relating to TPMs and Rights Management Information remain binding. It also grants protection to temporary and permanent reproductions, raising concerns regarding transient digital copies.
  • It could expose India’s existing digital copyright exceptions under Section 52 to challenges by foreign rightsholders.
• Technological Protection Measures (TPMs): A stringent anti-circumvention regime could affect students, researchers, libraries and archives.
  • A student legally examining software for interoperability or security research may encounter DRM or encryption that requires circumvention.
  • Similarly, libraries and archives increasingly rely on format-shifting to preserve digitally locked, out-of-print or fragile works. If statutory exceptions are weakened, preservation and academic research could face legal uncertainty.
• Threat to Internet Intermediaries: Temporary copies generated in RAM, server caches and routine network routing are important to the functioning of the internet.
  • India’s Copyright Act provides protection for specified transient copies.
  • However, the draft’s broad reproduction right could expose ISPs and digital intermediaries to greater copyright liability.

Way Forward

• India should seek targeted recalibration of the IP chapter before finalisation. 
• The WIPO Copyright Treaty should be reinserted into the National Treatment clause, while existing Indian statutory exceptions for education, research, preservation, interoperability and transient digital copies should remain protected.
• The objective should be to deepen India–EU trade ties without diluting India’s digital-policy autonomy, access to knowledge and innovation ecosystem.

Source: TH