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A Guide to Key IPR Provisions of the Proposed India-European Union Free Trade Agreement

The Centre for Internet and Society presents a guide for policymakers and other stakeholders to the latest draft of the India-European Union Free Trade Agreement, which likely will be concluded by the end of the year and may hold serious ramifications for Indian businesses and consumers.
In its ongoing negotiation for a FTA with the EU, a process that began in 2007 and is expected to end sometime this year, India has won several signicant IP-related concessions. But there remain several IP issues critical to the maintenance of its developing economy, including its robust entrepreneurial environment, that India should contest further before ratifying the treaty. This guide covers the FTA's IP provisions that are within the scope of CIS' policy agenda and on which India has negotiated favorable language, as well as those provisions that it should re-negotiate or oppose.
 
Download the guide here, and please feel free to comment below.
 
You may also download a chart comparing the language proposed by India and the EU respectively with that included in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
 
Following is a summary of CIS' findings:
 
  • India has become a de facto leader of developing countries at the WTO, and an India-EU FTA seems likely to provide a model for FTAs between developed and developing states well into the future.
  • The EU has proposed articles on reproduction, communication, and broadcasting rights which could seriously undermine India's authority to regulate the use of works under copyright as currently provided for in the Berne Convention, as well as narrowing exceptions and limitations to rights under copyright.
  • The EU asserts that copyright includes "copyright in computer programs and in databases," without indicating whether such copyright exceeds that provided for in the Berne Convention. Moreover, by asserting that copyright "includes copyright in computer programs and in databases," the EU has left open the door for the extension of copyright to non-original databases.
  • India should explicitly obligate the EU to promote and encourage technology transfer -- an obligation compatible with and derived from TRIPS -- as well as propose a clear definition of technology transfer.
  • The EU has demanded India's accession to the WIPO Internet Treaties, the merits of which are currently under debate as India moves towards amending its Copyright Act, as well as several other international treaties that India either does not explicitly enforce or to which it is not a contracting party.
  • In general, the EU's provisions would extend terms of protection for material under copyright, within certain constraints, further endangering India's consumer-friendly copyright regime.
  • An agreement to establish arrangements between national organizations charged with collecting and distributing royalty payments may obligate such organizations in India collect royalty payments for EU rights holders on the same basis as they do for Indian rights holders, and vice versa in the EU, but more heavily burden India.
  • The EU has proposed a series of radical provisions on the enforcement of IPRs that are tailored almost exclusively to serve the interests of rights holders, at the expense of providing safety mechanisms for those accused of infringing or enabling infringers. 
  • The EU has proposed, under cover of protecting intermediate service providers from liability for infringement by their users, to increase and/or place the burden on such providers of policing user activity.

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