The copyright stakes in the EU FTA

Why in the News

The European Commission has formally asked European Union member states to approve the signing and conclusion of the India EU Free Trade Agreement (FTA), and the commitments accepted in the covered areas, including intellectual property, have now been revealed. The draft intellectual property chapter affirms both parties’ commitments to the WIPO Copyright Treaty (WCT) and the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, while omitting the WCT from the National Treatment clause at Article 10.8. It simultaneously carries the WCT’s enforcement mandates on technological protection measures and rights management information as binding obligations. The tension is that India would take on the treaty’s enforcement side without its public interest exceptions, which means the exceptions students, security researchers, archivists and Internet service providers currently rely on under the Copyright Act, 1957 would rest on the agreement’s own narrow test rather than on a treaty floor.

What is the WIPO Copyright Treaty (WCT)?

1. What it covers: The treaty was adopted specifically for the protection of works and the rights of their authors in the digital environment, with particular attention to software and databases.
2. The enforcement side: It provides for technological protection measures (TPMs), meaning the encryption and digital access controls that restrict copying of a digital work, and for rights management information attached to that work.
3. The balancing side: Article 10 of the treaty provides for limitations on and exceptions to copyright for digital works, which is what keeps authors’ rights balanced against public interest uses in education and research.
4. Its place in Indian law: The Copyright Act, 1957 as it stands is in conformity with the WCT and with the TRIPS Agreement.

What is the asymmetry inside the draft intellectual property chapter?

1. The omission: The chapter leaves the WCT out of the National Treatment clause at Article 10.8, which means the limitations and exceptions for digital works that the treaty provides would no longer be available to India.
2. The retained obligation: Footnote 1 of Article 10.8(1) expands “protection” to cover enforcement measures against the circumvention of technological protection measures at Article 10.18 and against interference with rights management information at Article 10.19.
3. The narrowed exception route: Article 10.21 of the agreement supplies limitations and exceptions through a narrow “three step test” borrowed from European Union copyright statutes, which is a tighter gate than the treaty’s own Article 10.
4. The net effect: The chapter abandons the treaty’s principle of balancing authors’ rights against public interest exceptions while keeping its enforcement mandate rigid.

How would this reach the Copyright Act, 1957?

1. The amendment obligation: The draft provisions would necessitate amendments to the Copyright Act, 1957, obliging Parliament to remove the exceptions covering digital works regardless of whether the user was engaged in lawful research.
2. Fair dealing becomes challengeable: If the existing exceptions are not preserved, foreign rightsholders could challenge the exceptions for digital works available under Section 52, the fair dealing provision, including transient or incidental storage of a work purely in the technical process of electronic transmission.
3. Civil and criminal exposure: Article 10.11 of the agreement would subject such uses to civil and criminal remedies rather than leaving them within a statutory exception.
4. The threat to Section 65A: Section 65A of the Copyright Act, 1957 governs technological protection measures, and Section 65A(2) provides the exceptions under which a protection measure may lawfully be circumvented, so a student or researcher bypassing a digital lock to perform an act protected under Section 52 attracts no criminal liability today.
5. Beyond the negotiating mandate: By agreeing to the draft text the negotiators have gone beyond the mandate Parliament set in the Copyright Act, 1957.

What changes in classrooms and laboratories?

1. The existing permission: Sections 52(1)(ab) and 52(1)(ac) permit engineering students and security researchers to observe, test and reverse engineer software, either to achieve interoperability or to uncover critical security vulnerabilities.
2. Why the permission is conditional on circumvention: Modern software is almost universally guarded by encryption and digital access controls, so the lawful act cannot be performed without first bypassing a protection measure.
3. The effect of a strict regime: Under a strict anti circumvention rule, a computer science student breaking a digital lock to inspect code for system compatibility or security flaws becomes a legal offender.
4. The wider cost: Security research that depends on examining protected code is the mechanism by which vulnerabilities are found before they are exploited, and a rule that criminalises it removes that route.

Why are libraries and archives exposed?

1. The preservation practice: Historical documents, literature and research are increasingly distributed in digital formats burdened by Digital Rights Management (DRM), and librarians depend on format shifting to archive out of print works and preserve fragile collections.
2. The loss of legal cover: A strict anti circumvention rule strips archivists of the legal right to bypass digital locks for preservation, which converts a routine archival act into an infringement.
3. The reach into higher education: As higher education relies more on electronic materials, paywalls and DRM controls could effectively overwrite the public interest protections Indian courts established in rulings such as the DU Photocopy Case.

Why are Internet service providers exposed?

1. The existing safe harbour: Sections 52(1)(b) and 52(1)(c) shield Internet service providers (ISPs) and digital intermediaries from liability for the temporary and transient copies created in random access memory and server caches during routine data routing.
2. What the safe harbour supports: The notice and takedown regime established under Rule 75 of the Copyright Rules, 2013 rests on those statutory safe harbours, so removing them unsettles the takedown machinery as well.
3. The unqualified reproduction right: Article 10.11(a) of the agreement grants rightsholders an exclusive and unqualified right over all “temporary or permanent” reproductions.
4. The treaty position it contradicts: The Agreed Statements to Articles 8 and 10 of the WCT exempt transient network copies from copyright liability, so the draft text departs from the treaty India already follows.
5. The consequence: With the WCT excluded from the National Treatment exception, European rightsholders could expose Indian intermediaries to systemic liability for routine routing.

Challenges to the draft intellectual property chapter

1. Enforcement obligations travel faster than exceptions: An anti circumvention mandate is a single prohibition that applies immediately, while an exception has to be pleaded case by case in a domestic court. Eg. The Copyright (Amendment) Act, 2012 inserted Section 65A together with its express exceptions as a package, a pairing the draft chapter does not reproduce.
   The Fix: Make the agreement’s anti circumvention obligation expressly subject to the exceptions in Sections 52 and 65A(2) of the Copyright Act, 1957.
2. India’s fair dealing is a closed list, not an open standard: Section 52 enumerates permitted purposes, so a narrowing of those purposes leaves no residual doctrine for a court to fall back on. Eg. United States law applies an open ended fair use standard that a court can extend to a new use, while Indian courts work from the enumerated purposes.
   The Fix: Insert a residual clause permitting non commercial educational and research uses that satisfy the three step test, so the list is not the outer limit.
3. The safe harbour rests on subordinate legislation: The notice and takedown machinery sits in the Copyright Rules, 2013 rather than in the Act, and a rule can be amended by the executive without returning to Parliament. Eg. Rule 75 of the Copyright Rules, 2013 carries the takedown procedure that intermediaries follow.
   The Fix: Move the intermediary safe harbour and the takedown procedure into the Act itself, so any narrowing needs a parliamentary amendment.
4. Cross border enforcement is asymmetric in cost: A rightsholder in the European Union can fund sustained litigation in India, while an Indian intermediary, library or university cannot mirror that in Europe. Eg. Academic publishers pursued the DU Photocopy Case in the Delhi High Court through a first instance suit and an appeal before withdrawing.
   The Fix: Negotiate a defence cost and mutual recognition provision in the agreement’s dispute chapter for non commercial educational defendants.
5. Treaty text once signed is hard to reopen: A trade agreement is renegotiated as a whole rather than clause by clause, so a concession in the intellectual property chapter is not correctable in isolation later. Eg. The intellectual property chapter of the agreement was settled in the same package as market access and services commitments.
   The Fix: Press to re insert the WCT into the National Treatment clause before signature rather than seeking an interpretive declaration afterwards.

Conclusion

India’s copyright flexibilities are a policy asset rather than a bargaining chip, and the draft chapter converts them into one. What remains unreconciled is that the agreement asks India to enforce a treaty’s protections without granting India the exceptions that same treaty wrote to balance them, and no amount of domestic drafting can restore a balance that the National Treatment clause has already removed. The immediate thing to watch is whether the European Union member states approve signature with the clause as drafted, since the window for negotiators to insist on re inserting the treaty into that clause closes at signature rather than at ratification.

Back2Basics: The DU Photocopy Case

1. What it was: Three academic publishers sued Delhi University and a licensed photocopy shop on its campus over course packs compiled from copyrighted textbooks.
2. The provision at issue: The dispute turned on Section 52(1)(i) of the Copyright Act, 1957, which exempts reproduction of a work by a teacher or a pupil in the course of instruction.
3. What the court held: The Delhi High Court held that the exemption covers course packs prepared for students and read no quantitative limit into the provision, so the reproduction was not an infringement.
4. Why it is cited here: It is the leading Indian authority for the proposition that copyright exceptions serve a public interest in access to education rather than operating as a narrow concession.

Matching Previous Year Question

“In a globalised world, intellectual property rights assume significance and are a source of litigation. Broadly distinguish between the terms – copyrights, patents and trade secrets.”