The copyright stakes in the EU FTA
The India-European Union Free Trade Agreement's draft intellectual property chapter contains copyright provisions that could require India to amend its domestic Copyright Act, 1957
The draft chapter mandates compliance with the WIPO Copyright Treaty (WCT), 1996, and the WIPO Performances and Phonograms Treaty (WPPT), 1996, treaties India has not yet ratified
The current draft omits the WCT from the agreement's National Treatment clause, a gap flagged as weakening protection for India's existing digital-copyright flexibilities
Concerns have been raised that the chapter's exceptions framework is narrower than India's current Section 52 exceptions, which cover students, libraries/archivists, and internet intermediaries
Negotiators are being urged to restore the WCT reference in the National Treatment clause and preserve India's existing copyright flexibilities before the text is finalised
WIPO Copyright Treaty (WCT), 1996 and India's Accession Status
The WCT is a special agreement under the Berne Convention, adopted in Geneva in 1996 by the World Intellectual Property Organization (WIPO) to extend copyright protection to the digital environment — covering computer programs, databases, and technological protection measures (TPMs) used to prevent unauthorised digital copying. India is a long-standing WIPO member (since 1975) but has historically not been a party to the WCT or WPPT; the Union Cabinet approved India's accession to both treaties in July 2018, though full domestic implementation has proceeded gradually alongside amendments to the Copyright Act.
Key Details
- Adopted at WIPO, Geneva, in December 1996; entered into force internationally in 2002
- Extends Berne Convention protections to the digital environment: software, databases, and anti-circumvention of TPMs
- India's 2012 Copyright (Amendment) Act already incorporated several WCT-compliant provisions (e.g., protection of TPMs and Rights Management Information) even before formal treaty accession
- Cabinet approved accession to WCT and WPPT in July 2018
Because the draft EU FTA text requires adherence to WCT standards while excluding the WCT from the agreement's National Treatment clause, India would take on treaty-level digital copyright obligations without the reciprocal non-discrimination guarantee that clause would otherwise provide — a legally significant asymmetry for a treaty India has only partially implemented domestically.
Section 52 of the Copyright Act, 1957 — Fair Dealing Exceptions
Section 52 lists specific acts that do not constitute copyright infringement, including private/personal research, criticism and review, reporting of current events, judicial proceedings, and educational use. India follows a "fair dealing" model — narrower and purpose-specific compared to the broader US "fair use" doctrine — meaning only enumerated uses are protected, not any use a court deems reasonable.
Key Details
- Section 52(1)(a): fair dealing for private use, criticism, or review
- Section 52(1)(o): non-commercial public libraries may reproduce up to three copies of a book not available for sale in India
- Section 52(1)(h)/(i): specific provisions permitting reproduction for instructional/examination purposes
- Internet intermediary (ISP) safe-harbour principles are addressed separately, largely through the Information Technology Act, 2000 (Section 79) read with Copyright Act provisions
The FTA's proposed "three-step test" restrictions on exceptions are described as more stringent than what Section 52 currently allows, potentially narrowing the exceptions available to students, libraries/archivists, and ISPs that Indian law presently protects.
The Three-Step Test — Berne Convention, TRIPS, and WCT
The three-step test originated in Article 9(2) of the Berne Convention (1967 Stockholm revision) and was generalised to all exclusive rights by Article 13 of the TRIPS Agreement. It requires that any exception to copyright: (a) be confined to certain special cases; (b) not conflict with normal exploitation of the work; and (c) not unreasonably prejudice the legitimate interests of the rights holder.
Key Details
- Berne Convention Article 9(2) (1967): applies only to the reproduction right
- TRIPS Agreement Article 13 (1995): extends the test to all copyright exclusive rights, binding on all WTO members including India
- The WCT reaffirms the three-step test in its Article 10
- A stricter contractual formulation of this test in a bilateral FTA can bind India beyond what TRIPS itself requires, since FTA commitments are enforceable through the agreement's own dispute settlement mechanism, not just WTO channels
By codifying a tighter three-step test in a bilateral treaty text, the India-EU FTA could lock in copyright exception standards stricter than TRIPS obliges, constraining India's future legislative flexibility on Section 52-type exceptions.
India-EU Free Trade Agreement — Status and Structure
Negotiations for the India-EU FTA, which trace back to the Broad-based Trade and Investment Agreement (BTIA) talks launched in 2007 and stalled in 2013, were relaunched in June 2022 and politically concluded on 27 January 2026 in New Delhi — India's largest FTA by trade value. The agreement now requires legal scrubbing, translation into EU official languages, and ratification by both sides (European Parliament consent plus Council decision, and India's domestic ratification) before entry into force, expected in early 2027.
Key Details
- BTIA negotiations began 2007; suspended 2013; relaunched June 2022
- Politically concluded 27 January 2026; not yet in force
- Covers trade in goods, services, investment, and — as this article discusses — intellectual property
- Comparable precedent: India-UAE Comprehensive Economic Partnership Agreement (CEPA), 2022, India's first CEPA-format deal with a Gulf economy
Because the FTA text is still undergoing legal review before signature and ratification, civil society and negotiators retain a window to revise the IP chapter's copyright language before it becomes binding.
- WIPO Copyright Treaty adopted: Geneva, 1996; India's Cabinet approved accession: July 2018
- Section 52(1)(o): non-commercial libraries may make up to 3 copies of an out-of-print book
- TRIPS three-step test: Article 13; Berne Convention three-step test: Article 9(2) (1967)
- India-EU FTA political conclusion: 27 January 2026; expected entry into force: early 2027
- India-UAE CEPA (comparable recent trade deal precedent): signed 2022