Recently, the European Commission formally requested EU member states to approve the signing and conclusion of the India-EU Free Trade Agreement. Details of the commitments the two partners have accepted in the covered areas, including intellectual property (IP), have also been revealed. The draft IP Chapter includes detailed provisions on copyright that require close examination of their impact on India’s digital policy landscape.
The structural asymmetry
Our assessment is that the provisions in the draft IP Chapter would necessitate amendments to India’s Copyright Act, 1957, which is in conformity with international IP treaties including the WIPO Copyright Treaty (WCT) and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Though the current provisions explicitly affirm the commitments of both parties to these IP treaties, they omit the WCT from the crucial National Treatment clause (Article 10.8).
It may be noted that the WCT was specifically adopted for the protection of works and the rights of their authors in the digital environment, particularly software and databases, while also providing for technological protection measures (TPMs). Excluding the WCT from the National Treatment provisions of the IP Chapter implies that the limitations on or exceptions to copyright for digital works that the WCT provides (Article 10) would henceforth be unavailable to India.
Limitations and exceptions under the FTA (Article 10.21) include a narrow “three-step test”, borrowed from EU copyright statutes. If the extant exceptions in India’s Copyright Act are not preserved, foreign rightsholders could challenge the exceptions for digital works available under Section 52 (or “fair dealing”), including transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public under Article 10.11 of the FTA, subjecting them to civil and criminal remedies.
The danger becomes more apparent when read alongside Footnote 1 of Article 10.8(1), which expands “protection” to cover enforcement measures against the circumvention of TPMs (Article 10.18) and Rights Management Information (Article 10.19). By including WCT’s enforcement mandates among the binding obligations while excluding this treaty from the National Treatment exceptions, the draft IP Chapter abandons the WCT’s principles, namely, balancing authors’ rights with public interest exceptions in education and research, while providing a rigid enforcement mandate.
This structural imbalance directly threatens Section 65A of India’s Copyright Act, 1957, which deals with TPMs. Section 65A(2) provides exceptions under which technological protection can be circumvented, particularly for the purposes permitted therein. Thus, if a student or researcher bypasses a digital lock to perform a lawful act protected under Section 52, no criminal liability attaches.
Chilling effect on classrooms, labs
The real-world consequences of this legal shift will be borne by India’s academic and educational institutions. Under Sections 52(1)(ab) and (ac) of the Copyright Act, engineering students and security researchers are legally permitted to observe, test, and reverse-engineer software to foster interoperability or uncover critical security vulnerabilities.
Yet, modern software is almost universally guarded by encryption and digital access controls.
Under a strict anti-circumvention regime, a computer science student breaking a digital lock to inspect code for system compatibility or security flaws could be transformed overnight into a legal offender. Similarly, public libraries and academic archives face unprecedented risks. In an era when historical documents, literature, and research are increasingly distributed in digital formats burdened by Digital Rights Management (DRM), librarians depend on format-shifting to archive out-of-print works and preserve fragile collections. A strict anti-circumvention rule would strip archivists of the legal right to bypass digital locks for preservation.
Furthermore, as higher education relies more on electronic materials, paywalls and DRM controls could effectively overwrite the public interest protections established by Indian courts in landmark rulings such as the DU Photocopy Case.
Threat to Internet service providers
Under India’s Copyright Act (Sections 52(1)(b) and (c)), Internet service providers (ISPs) and digital intermediaries are shielded from liability for the temporary, transient copies created in RAM and server caches during routine data routing. The notice and takedown regime established under Rule 75 of the Copyright Rules, 2013 relies on these statutory safe harbours.
The FTA draft undermines this framework by granting rightsholders an exclusive, unqualified right over all “temporary or permanent” reproductions under Article 10.11(a), in contravention of the Agreed Statements to Article 8 and Article 10 of the WCT, which exempt transient network copies from copyright liability. Exclusion of the WCT from the National Treatment exception could, therefore, leave ISPs at risk of legal challenge, with EU rightsholders exposing Indian intermediaries to systemic liability.
By agreeing to the draft text, the negotiators seem to have gone beyond the Indian Parliament’s mandate as reflected in the Copyright Act, 1957. Left uncorrected, this would oblige Parliament to remove the exceptions covering digital works in the Act, regardless of whether the user was engaging in legitimate, lawful research.
A call for recalibration
India’s policy flexibilities must not be traded away in bilateral trade bargains. Our negotiators must insist on targeted revisions. They should press to re-insert the WCT into the National Treatment Clause. India’s rise as a digital powerhouse rests on a foundation of open access to knowledge, robust educational inquiry, and independent technical research. While deepening trade ties with the EU is crucial, this must not be at the expense of our digital sovereignty or our students’ right to learn. Negotiators must ensure the availability of statutory flexibilities in the copyright domain that keep Indian innovation alive.
(Zakir Thomas is the IPR Chair at National Law School of India University, Bengaluru and Biswajit Dhar was the IPR Chair Professor at JNU)
Published – September 21, 2026 08:30 am IST
