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Analysis of Copyright Expansion in the India-EU FTA (July 2010)

Posted by Snehashish Ghosh at Feb 20, 2012 08:21 AM |
In this blog post, Snehashish Ghosh examines the copyright clauses in the July 2010 leak of the India-EU FTA, and points out how the EU's demands go beyond India's international obligations, and necessitate harmful changes in Indian law.

In the current intellectual property rights (IPR) chapter of the India-EU FTA (the July 2010 leaked version), the European Union demands for a TRIPS plus protection. The scope of obligations in the agreement demanded by EU between the parties is beyond the rights and obligations under the TRIPS Agreement and other international treaties with respect to IPRs, which India is party to.

The covenants in the copyright and related rights are of specific interest in the agreement. The protection granted by the parties should be in compliance with the Berne Convention, Rome Convention, WIPO Copyright Treaty (WCT) and the WIPO Performance and Phonogram Treaty (WPPT).1 It has to be considered here that Rome Convention is not ‘in force’ in India2 and India is not a party to the WCT3 or the WPPT4. This clearly shows that the demands of EU in the FTA surpass all the obligations of India with respect to the other multilateral international agreement dealing with intellectual property rights.

One of the changes to be welcomed in the current draft is that the minimum duration of author’s rights has been changed in the recent amendment and it has been reduced to life of the author and fifty years from his death. This has been done in accordance with the Berne Convention.

In case of photographic works, the duration of protection is not expressly mentioned in the agreement. However, the agreement casts obligation on the parties to comply with the Berne Convention. All ‘literary and artistic’ work under the agreement is construed to be the same as in the Berne Convention. Literary and artistic work under Berne Convention includes photographic works. Under the Berne Convention, rights of an author in case of photographic works should be protected for a minimum period of twenty five years. However, the agreement stipulates that rights of an author with respect to ‘literary and artistic’ works as defined under the Berne Convention shall be given protection for the duration of life of the author plus fifty years after the death of the author. The India-EU FTA also mentions that works for which period of protection is not calculated from the death of the author5 “and which have not been lawfully made available to the public within at least 50 years from their creation protection shall terminate”6. So, the term of protection of photographic works in unclear in the agreement.

Problems still exists in relation to reproduction rights, the covenant in the agreement requires that the parties should provide ‘exclusive rights to authorize or prohibit indirect or direct, temporary or permanent reproduction by any means or any form’. The limitation and exception under the proposed amendments to the India Copyright Act, 1957 allows for ‘transient and or incidental’ storage of works or performances for the purposes of ‘communication to the public’. The covenant in the India-EU FTA gives exclusive rights to the author with respect to temporary or permanent reproduction. The limitation and exception in the agreement allows temporary acts of reproduction only in case of use of technological process for transmission and non-commercial purposes. This narrows down the scope of the proposed amendment to the copyright law in India.

The covenants as to ‘Protection of Technological Measures’ are beyond the measures proposed by the Indian Copyright (Amendment) Bill, 2011. The parties in the current draft of the India-EU FTA agree to provide legal protection against ‘manufacture’ of devices, products or components which can be used for circumvention of technological protection measures. However, this is contrary to the proposed amendments to the Copyright Act, 1957 in India.7 The proposed amendment allows for the circumvention of technological protection measures, for research and other purposes. It also allows for manufacture of devices used for circumvention of the technology protection measures. The liability is on the person who requests the circumvention and not on the person who actually manufactures and causes the circumvention provided that such person should maintain a register as to the identification details of the person requesting such circumvention.

  1. India has agreed to comply with Article 1 through 21 of the Berne Convention for the Protection of Literary and Artistic works and appendix thereto (1971). However, EU stipulates compliance with Articles 1 through 22 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Articles 1 through 14 of the WIPO Copyright Treaty – WCT (Geneva, 1996), Articles 1 through 23 of the WIPO Performance and Phonograms Treaty – WPPT (Geneva, 1996)

  2. Status of Contracting Parties of the Rome Convention available at (last visited on 11/02/2012)

  3. Contraction Parties of the WIPO Copyright Treaty – WCT (Geneva, 1996) available at (last visited on 11/02/2012)

  4. Contracting Parties of the WIPO Performance and Phonograms Treaty- WPPT (Geneva, 1996) available at (last visited on 11/02/2012)

  5. Under Article 7.4 of the Berne Convention, the minimum protection provided to author of photographic works is twenty five years and such time period is not calculated from the death of the author

  6. Article 7.2, Draft India-EU FTA (July, 2010)

  7. Section 65A, Copyright Amendment Bill, 2011.