Context

The European Commission has formally sought approval from EU member states for the signing and conclusion of the India-EU Free Trade Agreement (FTA). The draft Intellectual Property (IP) Chapter contains detailed copyright provisions that could require changes to India's Copyright Act, 1957, raising concerns over their impact on fair dealing, education, research, digital archives and Internet intermediaries.

Key Concerns in the Draft IP Chapter

  • Omission of the WIPO Copyright Treaty (WCT):
  • The draft incorporates the strict enforcement rules of the WCT but does not give India the WCT's exceptions under National Treatment.
  • This could weaken Section 52 of India's Copyright Act, 1957, which protects "Fair Dealing" for education, research and other lawful digital uses.
  • Strict Anti-Circumvention Rules (TPMs):
  • The EU is pushing for TRIPS-Plus enforcement of Technological Protection Measures (TPMs) — digital locks against copying.
  • This undermines Section 65A of the Indian Copyright Act, which currently allows students, security researchers and librarians to bypass digital locks for lawful, non-infringing purposes.
  • An absolute prohibition risks criminalizing legitimate software compatibility testing and historical digital preservation.
  • Narrow 'Three-Step Test':
  • The draft FTA introduces a restrictive, EU-style "three-step test" for copyright limitations.
  • Indian courts rely on an enumerated list of statutory exceptions rather than an open-ended "fair use" doctrine; narrowing these parameters eliminates legal fallbacks for public interest uses.
  • Unqualified Rights Over Temporary Copies:
  • The FTA grants rightsholders absolute control over all "temporary or permanent" reproductions.
  • This contradicts the WCT, which expressly exempts transient network copies.

Potential Impact on India

  • Erosion of Academic Freedom: Students, teachers and researchers could face criminal liability for extracting data or reverse-engineering software for academic work.
  • Disruption of the Digital Economy: Intermediaries and tech companies could face crippling litigation costs from foreign rightsholders over transient data caching — a routine technical process in electronic transmissions.
  • Asymmetric Litigation Costs: An EU rightsholder can fund sustained litigation in India, whereas an Indian intermediary, university or library lacks the financial capacity to defend its digital exceptions under the FTA dispute mechanism.

Lessons from the India–UK CETA

  • The India-UK Comprehensive Economic and Trade Agreement (CETA) raised similar concerns over IPR and India's policy space.
  • Its emphasis on voluntary licensing was seen as potentially diluting India's reliance on compulsory licensing to ensure affordable patented medicines.
  • Concerns also emerged over patent-working disclosures and India's demand for favourable technology transfer.
  • The debate highlighted the need to protect TRIPS flexibilities, access to affordable medicines, public health safeguards and technology transfer while negotiating FTAs.

India–EU FTA: Key Commitments

European Union (EU) Commitments

  • Massive Market Access: Opens 97% of tariff lines, covering 99.5% of Indian exports by value.
  • Zero Duty on Labour-Intensive Sectors: Removes 4–26% duties on textiles, apparel, leather, footwear, gems & jewellery and marine goods worth ~$33 billion.
  • Mode 4 Professional Mobility: Eases temporary entry rules for intra-corporate transferees, contractual service suppliers and independent professionals.
  • Mitigating Non-Tariff Barriers: Deepens cooperation on Sanitary and Phytosanitary (SPS) and Technical Barriers to Trade (TBT) standards.

India's Commitments

  • Calibrated Tariff Opening: Liberalises 92.1% of tariff lines (covering 97.5% of EU exports), while fully protecting sensitive sectors like dairy, cereals, poultry and soymeal.
  • Services Access: Extends operating certainty to EU firms across telecom, financial, maritime and environmental services.
  • MSME-Friendly Rules of Origin (RoO): Introduces self-certification (Statements of Origin) and targeted origin flexibilities for shrimps, prawns and downstream aluminium.
  • TRIPS-Compliant IPR & Digital Sovereignty: Safeguards the generic pharmaceutical sector, legally protects the Traditional Knowledge Digital Library (TKDL), and preserves policy space for data localisation.

IP Laws in India

India has a robust, TRIPS-compliant IP regime overseen by the Department for Promotion of Industry and Internal Trade (DPIIT):

  • The Copyright Act, 1957: Protects literary, dramatic, musical and artistic works. Section 52 provides "Fair Dealing" exceptions for education, research and news reporting; Section 65A allows circumvention of digital locks for non-infringing, lawful purposes.
  • The Patents Act, 1970: Includes Section 3(d), which prevents "evergreening" of patents — crucial for affordable generic medicines.
  • The Trade Marks Act, 1999: Provides for registration and protection of trademarks.
  • Geographical Indications of Goods (Registration and Protection) Act, 1999: Protects goods originating from a definite geographical territory.
  • Other Laws: Designs Act, 2000; Protection of Plant Varieties and Farmers' Rights (PPV&FR) Act, 2001.

WIPO Internet Treaties

  • India acceded to the WIPO Internet Treaties in 2018:
  • WIPO Copyright Treaty (WCT): Protects authors of literary and artistic works (writings, computer programs, original databases, musical and audiovisual works, photographs) in the digital sphere.
  • WIPO Performances and Phonograms Treaty (WPPT): Protects "related rights" (neighbouring rights) of performers and producers of phonograms.

Way Forward

  • Restore the WCT in National Treatment: India must insist on including the WCT in the National Treatment clause to legally defend domestic exceptions like affordable digital access for education during bilateral trade disputes.
  • Protect Lawful Research: Retain intent-based rules under Section 65A — breaking digital locks should be illegal only when done to pirate content, not for legitimate academic study or cybersecurity testing.
  • Shield Internet Service Providers (Safe Harbour): Ensure TPM circumvention remains permitted for security research, interoperability and digital preservation.
  • Resist TRIPS-Plus Demands: India should stick to standard WTO TRIPS Agreement rules; going beyond these baselines risks foreign corporate control over India's digital economy, threatening digital sovereignty and affordable access to knowledge.

Conclusion

India's primary objective in negotiating FTAs with developed nations must be to boost export market access without compromising domestic policy space. IP provisions in trade agreements should not supersede multilateral flexibilities like the TRIPS Doha Declaration.