Draft India-EU FTA’s IP Chapter may criminalize transient digital copies, conflicting with Indian law. Rights groups urge renegotiation to protect routine data processing and digital rights.
EU-India FTA Draft Risks Criminalizing Routine Digital Operations
The draft Intellectual Property chapter of the India-EU Free Trade Agreement (FTA), obtained from EU sources, includes provisions that could outlaw transient digital acts currently permitted under Indian copyright law—such as temporary copies in RAM during web browsing and data routing. The controversial language mirrors EU-style exclusivity norms, potentially clashing with Section 65A of the Copyright Act, 1957, as amended in 2012, which permits incidental and transient copies essential for system operations.
The draft text, if adopted, could expose Indian internet intermediaries, cloud service providers, and content delivery networks to liability for routine technical functions. Critics argue that such provisions violate the principle of technological neutrality and could stifle digital innovation. They cite the 2016 Shreyas Patel case, where the Delhi High Court upheld that RAM copies do not infringe copyright if transient and functional.
Indian negotiators have not yet published their counter-draft, but Commerce Minister Piyush Goyal has affirmed the FTA’s target completion by December 2026. Civil society groups are urging the DPIIT to protect flexibilities under the Berne and TRIPS agreements, emphasizing that Indian law already complies with international standards without requiring stricter domestic penalties.
For IP counsel, this development underscores the need to monitor treaty negotiations closely. A binding FTA clause could necessitate legislative amendments, affecting not only copyright but also intermediary liability under the IT Act, 2000. Firms should engage in policy consultations if public comments are invited.
Citations
- Copyright Act, 1957, Section 65A
- Shreyas Patel v. Union of India, W.P.(C) 1782/2016 (Delhi HC)
