The copyright stakes in the EU FTA, Pg8

Key Highlights:

• The European Commission has requested EU member states to approve the signing of the India-EU Free Trade Agreement (FTA).
• The draft Intellectual Property (IP) Chapter of the FTA includes provisions on copyright that could necessitate amendments to India’s Copyright Act, 1957.
• A key concern is the omission of the WIPO Copyright Treaty (WCT) from the National Treatment clause (Article 10.8) in the draft IP Chapter.
• This exclusion threatens existing exceptions for digital works under Section 52 (fair dealing) and Section 65A (Technological Protection Measures) of India's Copyright Act.
• The draft FTA could also expose Internet Service Providers (ISPs) to increased liability by granting unqualified rights over temporary reproductions.

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Detailed Insights:

• The WIPO Copyright Treaty (WCT) specifically addresses the protection of works and authors' rights in the digital environment, including software and databases.
• Excluding WCT from National Treatment implies that its provisions for limitations and exceptions to copyright for digital works would be unavailable to India.
• The FTA's "three-step test" for limitations and exceptions (Article 10.21) is narrower than current Indian provisions, potentially restricting lawful research and educational activities.
• The draft IP Chapter's enforcement mandates for Technological Protection Measures (TPMs), without corresponding exceptions, could criminalize legitimate circumvention by students and researchers.
• This could impact academic institutions, making it difficult for students to observe or reverse-engineer software for interoperability or security analysis.
• Public libraries and archives face risks as strict anti-circumvention rules could prevent them from bypassing Digital Rights Management (DRM) for preservation purposes.
• The FTA's Article 10.11(a) grants rightsholders exclusive rights over "temporary or permanent" reproductions, contradicting WCT provisions that exempt transient network copies.
• Indian negotiators are urged to re-insert the WCT into the National Treatment Clause to safeguard India's digital sovereignty and access to knowledge.

Key Concepts Involved:

• Free Trade Agreement (FTA): A pact between two or more countries to reduce barriers to imports and exports among them.
• Intellectual Property (IP): Creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
• Copyright Act, 1957: The primary legislation in India governing copyright protection for literary, dramatic, musical, and artistic works, and cinematograph films and sound recordings.
• WIPO Copyright Treaty (WCT): An international treaty that updates copyright protection for the digital age, particularly concerning digital works and technological protection measures.
• National Treatment: A principle in international law where a country treats foreign nationals and goods no less favorably than its own nationals and goods.
• Technological Protection Measures (TPMs): Technologies, devices, or components that control access to copyrighted works or prevent unauthorized copying.
• Fair Dealing: A legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
• Internet Service Providers (ISPs): Companies that provide individuals and organizations with access to the internet and other related services.