India-EU Free Trade Agreement and Intellectual Property Concerns
The European Commission has urged EU member states to approve the India-EU Free Trade Agreement (FTA), which includes commitments on intellectual property (IP). This move necessitates an analysis of potential amendments to India’s Copyright Act, 1957, which aligns with international IP treaties such as the WIPO Copyright Treaty (WCT) and the TRIPS Agreement.
Key Issues and Implications
- WIPO Copyright Treaty (WCT) Omission:
- The draft IP Chapter omits the WCT from the National Treatment clause (Article 10.8).
- This omission limits exceptions for digital works provided by the WCT, impacting India's ability to apply such exceptions.
- Three-Step Test Limitation:
- The FTA includes a restrictive “three-step test” for copyright exceptions, similar to EU statutes.
- This poses a risk that India’s fair dealing exceptions, like Section 52, might be challenged by foreign rightsholders.
- Technological Protection Measures (TPMs):
- The draft expands protection to enforcement against circumvention of TPMs (Article 10.18) and Rights Management Information (Article 10.19).
- This threatens Section 65A of India's Copyright Act, which allows circumvention for lawful purposes.
- Impact on Academics and Libraries:
- Engineering students and researchers could face legal challenges for bypassing digital locks for legitimate reasons.
- Libraries and archives, reliant on format-shifting for preservation, may lose their legal rights due to strict anti-circumvention rules.
- Internet Service Providers (ISPs) and Intermediaries:
- The FTA grants rightsholders control over “temporary or permanent” reproductions, undermining safe harbours for ISPs.
- This exposes ISPs to potential liabilities, challenging the statutory protections previously assured.
Recommendations
Negotiators are encouraged to reinsert the WCT into the National Treatment Clause to preserve India’s digital sovereignty and maintain statutory flexibilities in copyright laws. This is crucial to support India’s digital growth, educational access, and technological research.
