Copyright in the EU FTA

Recently, the European Commission has formally requested the EU member states to approve the signing and conclusion of the India-EU Free Trade Agreement. Details of the commitments the two partners have made in the areas covered, including intellectual property (IP), have also been revealed. The draft IP chapter contains detailed provisions on copyright that require detailed examination of their impact on India’s digital policy.

Structural asymmetry

Our assessment is that the provisions in the draft chapter on intellectual property would require changes to the Indian Copyright Act, 1957, which is consistent with international intellectual property treaties including the WIPO Copyright Treaty (WCT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Although the current provisions expressly confirm the obligations of both parties to these IP treaties, they leave WCT out of the key national treatment clause (Article 10.8).

It may be noted that the WCT was specifically adopted to protect works and the rights of their authors in the digital environment, especially software and databases, and at the same time established technological protective measures (TPM). The exclusion of the WCT from the national treatment provisions of the IP chapter means that the restrictions or exceptions to copyright in digital works provided by the WCT (Article 10) will no longer be available to India.

The limitations and exceptions under the FTA (Article 10.21) involve a narrow “three-step test”, borrowed from EU copyright laws. If existing exceptions in Indian copyright law are not maintained, foreign rightholders could challenge the exceptions for digital works available under Section 52 (or “fair dealing”), including temporary or incidental storage of the work or performance purely in the technical process of electronic transmission or communication with the public under Article 10.11 of the FTA, and subject them to civil and criminal remedies.

The danger is clearer when read alongside footnote 1 to Article 10.8(1), which expands “protection” to include enforcement measures against TPM circumvention (Article 10.18) and rights management information (Article 10.19). By including the WCT’s enforcement mandates among the binding obligations, while excluding this treaty from national treatment exceptions, the draft IP chapter departs from WCT principles, namely balancing copyright with public interest exceptions in education and research, while providing a strong enforcement mandate.

This structural imbalance directly threatens Section 65A of the Indian Copyright Act, 1957, which deals with TPM. Section 65A paragraph 2 lists the exceptions under which technological protection can be circumvented, especially for the purposes permitted therein. Therefore, if a student or researcher bypasses a digital lock to perform a lawful act protected under Section 52, there is no criminal liability.

Chilling effect on classrooms, laboratories

The real consequences of this legal shift will be borne by Indian academic and educational institutions. Under Sections 52(1)(ab) and (ac) of the Copyright Act, engineering students and security researchers are permitted by law to observe, test and reverse engineer software to promote interoperability or uncover critical security vulnerabilities.

Yet modern software is almost universally protected by encryption and digital access control.

Under a strict anti-circumvention regime, a computer science student who cracks a digital lock to check the code for system compatibility or security flaws could turn into a legal offender overnight. Likewise, public libraries and academic archives face unprecedented risks. At a time when historical documents, literature, and research are increasingly distributed in digital formats encumbered by digital rights management (DRM), librarians depend on format change to archive out-of-print works and preserve fragile collections. A strict anti-bypass rule would strip archivists of the legal right to bypass digital locks for preservation purposes.

As higher education becomes more reliant on electronic materials, paywalls and DRM controls could effectively override the public interest protections established by Indian courts in landmark judgments such as the DU Photocopy case.

A threat to ISPs

Under the Indian Copyright Act (Sections 52(1)(b) and (c)), Internet Service Providers (ISPs) and digital intermediaries are protected from liability for temporary, transient copies created in server RAM and cache during routine data routing. The notice and takedown regime under Rule 75 of the Copyright Rules 2013 relies on these statutory safe harbours.

The FTA proposal undermines this framework by granting rightholders an exclusive, unqualified right to all “temporary or permanent” reproductions under Article 10.11(a), contrary to the agreed declarations to Article 8 and Article 10 of the WCT, which exempt temporary network copies from copyright liability. Excluding WCT from the national treatment exception could therefore expose ISPs to legal challenge, with EU rights holders exposing Indian intermediaries to systemic liability.

By agreeing to the draft text, the negotiators appear to have overstepped the Indian Parliament’s mandate as set out in the Copyright Act 1957. If not fixed, it would have required Parliament to remove the digital works exemptions in the Act, regardless of whether the user was engaged in legitimate, lawful research.

Call for recalibration

India’s policy flexibility must not be traded in bilateral trade agreements. Our negotiators must insist on targeted revisions. They should push to put WCT back into the national treatment clause. India’s rise as a digital powerhouse rests on the foundations of open access to knowledge, extensive educational exploration and independent technical research. While deepening trade ties with the EU is essential, this must not come at the expense of our digital sovereignty or our students’ right to learn. Negotiators must ensure the availability of legal flexibility in copyright to keep Indian innovation alive.

(Zakir Thomas is Chairman of IPR at National Law School of India University, Bengaluru and Biswajit Dhar was Professor of IPR at JNU)

Published – 21 Sep 2026 08:30 IST