The copyright stakes in the EU FTA

GS-II – International Relations

Why in News?

• European Commission: Demanded that EU member states formally approve signing and conclusion of the India-EU FTA.
• IP Chapter: Contains copyright provisions which can impact the digital policy landscape in India.

The Structural Asymmetry

A. International Treaties

• India’s Copyright Framework: The Indian Copyright Act, 1957, based on international treaties including WIPO Copyright Treaty (WCT) and TRIPS Agreement.
• WCT omission: The draft reiterates commitments to these treaties but omits the WCT from National Treatment (Article 10.8).
• WCT Solitary Purpose: To safeguard creators, paper works and rights in the digital environment, particularly software application as well as data sources; and also establish protection measures (TPMs).
• Copyright Exceptions: If the WCT is not included in National Treatment exceptions, its limitations, and exceptions for digital works would be unavailable to India.
• Article 10.21: Contains a limited three-step copyright limitation and exception test.
• Section 52: As written, foreign rightsholders could attack user exceptions such as fair dealing and use of transient or incidental storage during electronic transmission, putting users at risk of civil and criminal remedies.
• TPM Enforcement: Yes, footnotes 1 of Article 10.8(1) is enforcement against circumvention of TPMs (Article 10.18) and Rights Management Information (Article 10.19).
• Maintains enforcement obligations while omitting the WCT’s balance between authors’ rights and education and research exceptions.
• Section 65A: TPMs, and Section 65A(2) gives permission to get around it but only in specified cases such as lawful acts protected under, for instance, Section 52.

Chilling Effect on Class rooms and Labs

• Software Research: We restrict it to limits like Software Research, in which clause 52(1)(ab) and (ac) allow for observation testing and reverse-engineering for interoperability and security research.
• Legal Risk: Idealized anti-circumvention laws might put students and researchers who circumvent digital restrictions to examine code for compatibility or security vulnerabilities at risk.
• Libraries & Archives: The examination of format-shifting assists in preserving access to out-of-print works and fragile digital collections; strict rules may hamper preservation efforts by restricting time frames under which bypassing digital locks for preservation would still be permitted.
• Higher ed: Paywalls and DRM controls risk undermining public-interest protections found in the DU Photocopy Case.

Threat to Internet Service Providers

• Safe Harbours already in place: Sections 52(1)(b) and (c) provide a shield against liability for temporarily copying content to RAM or server caches as part of normal data forwarding operations.
• Notice-and-Take Down: The relevant regime is laid out in Rule 75 of the Copyright Rules, 2013.
• Article 10.11(a): Provides the rightsholders with an exclusive right on any temporary or permanent reproduction.
• Potential Conflict: This may conflict with the Agreed Statements of the WCT to Articles 8 and 10, which exempt from copyright liability transient network copies.
• Intermediary liability: An exception for WCT from national treatment could result in larger body of Indian intermediaries being subject to greater risks and systemic liability.
• Legislative Effects: It warns that the draft would force the Parliament to delete such exceptions for digital works, potential examples of which include those backing honest-to-god research.

A Call for Recalibration

• Specific Modifications: Negotiators could negotiate to re-establish the WCT in the National Treatment article.
• Retaining Flexibilities: Statutory copyright exceptions supporting education, research, libraries and digital innovation should be preserved by India.
• Open access, research-oriented education and impartial technical research are some of the elements that India needs to facilitate its digital advancement.

Mains Question

Q. Discuss the problems/concerns related to the provisions on intellectual property and copyright in relation to intellectual property rights in India-EU free trade agreement. How goes (over or away) India on copyright protection in the digital era?