The draft India-EU Free Trade Agreement’s IP chapter could criminalise temporary digital copies and restrict archiving practices, conflicting with current Indian law and fair use principles.
Concerns Over IP Provisions in Draft India-EU FTA
The leaked draft of the India-EU Free Trade Agreement (FTA), particularly Chapter 10 on Intellectual Property, has raised alarms among digital rights and IP experts. Key provisions appear to require India to outlaw routine digital activities such as temporary copies in Random Access Memory (RAM) and digital archiving by libraries—actions currently permitted under Section 52 of the Copyright Act, 1957 as fair dealing exceptions.
The EU-proposed text aligns with the EU Copyright Directive, which treats transient technical copies as requiring authorization. However, India’s jurisprudence, including the landmark McMillan v. Bipin Shantilal and Open Source Geospatial Foundation rulings, protects ephemeral copies essential for internet functionality. Experts warn that adopting such provisions could disrupt cloud services, search engines, and academic research repositories.
Risks to Innovation and Access
If finalised as proposed, the FTA could force India to amend its Copyright Act, undermining domestic exceptions and increasing liability for internet intermediaries. Practitioners should monitor negotiations closely, especially with Commerce Minister Piyush Goyal targeting finalisation by December 2026. The tension between international treaty obligations and India’s innovation-friendly exceptions may require carve-outs or interpretive protocols to preserve digital freedoms.
Citations
- Copyright Act, 1957, Section 52
