The Draft India-EU FTA, dubbed the “mother of all deals”, includes a Chapter on Intellectual Property (IP) (Chapter 10), which has sparked concern about outlawing activities that Indian law allows for, such as Digital Archiving or creating temporary copies in RAM while routing web data. While India has not yet published the draft, the EU made it available on 15th September. Commerce Minister Piyush Goyal recently reiterated that the FTA remains on track for finalisation by December 2026, with formal implementation and enforcement anticipated to start by February or March 2027. There seem to be two issues with the Draft Chapter on IP: first, the FTA attempts to create new reproduction rights that are not present in the Copyright Act, 1957 (in Part I of the post, I will be focussing on this issue); second, the broadcasting organisations’ rights provided in the FTA clash with the existing TRAI and OTT platforms guidelines (which I will examine in Part II).
Articles 10.11, 10.12, and 10.13 of the Draft FTA’s IP Chapter cover the rights of authors, performers, and producers of phonograms (audio recordings), respectively. These articles expand copyright reproduction rights to include temporary reproduction, which is not consistent with the domestic copyright law of India. To understand its applications, we must first examine how these provisions compare against the Copyright Act
Article 10.11 (Rights of Authors): Section 14(a)(i) of the Copyright Act grants the exclusive right to reproduce the work in any material form, including storing it in any medium by electronic means. It does not explicitly mention “temporary or permanent” or “direct or indirect” reproduction, as Article 10.11 does. Including these terms would extend copyright enforcement into transient digital processes such as:
- RAM Loading:
Each time a user views a webpage, streams a video, or opens a PDF, the Operating System of the user’s computer stores a copy of such data from the hard drive or the internet into the Random Access Memory (RAM). Such copies are stored temporarily in memory, often only for seconds or minutes. This is to make the digital experience smooth and is not intentional “copying” of the work. RAM is a volatile memory, so it holds data only while the computer is active. Once the task is done or the computer is shut down, the OS clears the RAM and deletes the copy to make space. If storing such temporary copies would be a copyright infringement, then that would mean that our routine activities while surfing the internet, like opening a new article, watching a YouTube video, etc., would attract liability for the end-user.
- Internet Caching & Routing:
When a browser requests a webpage, the device saves a temporary copy, i.e., a cache, to prevent re-downloading text and images every time one clicks back. In the same manner, Internet Service Providers store transient copies of data packets to route internet traffic smoothly. Making such an act a copyright infringement would have a catastrophic effect because, let’s say an ISP is to stream an educational video smoothly to millions. In such a scenario, their local servers automatically cache data packets. To refrain from attracting any liability, an ISP would explicitly require a license for the streaming region. Without that, it would be liable for millions of ‘unauthorised’ temporary reproductions of such video.
These technical digital processes involve making numerous temporary copies across servers. Without specific exceptions in place, a “temporary” reproduction right would mean that reading or viewing unauthorised material on a screen could be a copyright infringement by the end-user. It would also mean that ISPs are making unauthorised temporary copies of copyrighted work as data moves across the web. Understanding how such computing works, the Indian Parliament enacted exceptions under Section 52(1)(b) and 52(1)(c) to protect such functions like RAM loading and Internet caching. So, Article 10.11 clashes with existing exemptions provided in the Copyright Act.
Article 10.12 (Rights of Performers): The Indian statute does not grant performers the expansive rights found in the Draft FTA. Instead, S. 38A(1)(a) limits the reproduction rights to material forms and electronic storage, omitting transient and indirect processes. Article 10.12(b) provides performers with the exclusive right to authorise or prohibit the reproduction, including direct or indirect, temporary or permanent, by any means or in any manner or form, in whole or in part, of fixations of their performances; Section 38A(1)(a) of the Copyright Act, 1957, on the other hand grants performers the exclusive rights to make a sound recording or a visual recording of the performance, including reproduction of it in any material form including the storing of it in any medium by electronic or any other means.
Further, Section 39 provides explicit statutory shields that exempt private use, teaching, research, and fair dealing excerpts, while also incorporating copyright exemptions under Section 52, extending transient storage and caching safe harbours under Section 52(1)(b) to both performers and broadcasters. By expanding performers’ rights to cover temporary reproductions, this article attempts to neutralise public interest exceptions in Section 39 and Section 52. Everyday activities such as a student streaming a copyrighted play for their project would turn into copyright infringement via RAM loading. This would alter the legislative balance India has built to protect education and fair dealing.
Article 10.13 (Rights of Producers of Phonograms): The Copyright Act limits and balances producers’ reproduction rights, whereas the Draft FTA tries to bring in expansive temporary reproduction rights. Article 10.13(a) grants producers of phonograms the exclusive right to authorise or prohibit the reproduction, including direct or indirect, temporary or permanent, by any means or in any manner or form, in whole or in part, of their phonograms. Whereas Section 14(e) covers rights to make any other sound recording embodying it, including storing it in any medium by electronic or other means. Further, while Article 10.13(c) and Section 14(e)(ii) mention commercial rental rights, Section 2(fa) defines commercial rental and carves out non-profit libraries and educational institutions. So the Act makes an effort to balance producers’ rights and public access, whereas the Article doesn’t come with internal safeguards.
This would have serious implications for public libraries and digital archiving. Because FTA doesn’t have a safeguard like Section 2(fa), a non-profit library hosting digitised audio recordings for research would be sued simply because temporary electronic copies of such recordings are created when a student hits play. Similarly, preserving audio heritage could be blocked by global phonogram producers, locking public history behind private paywalls.
Therefore, we see that these FTA Articles are trying to introduce new rights to the Indian Copyright Act. However, the Act’s Section 16 strictly states no copyright or a similar right except as provided in the Act. Therefore, under Section 16, temporary and indirect reproduction rights won’t be recognized unless amendments are made to the Act itself. Article 253 of the Constitution gives the government clear, sovereign authority to negotiate international trade treaties, agreements, and conventions with any other country/countries. However, it follows a dualist approach, meaning that for these particular FTA Articles to take effect, Parliament must explicitly step in and pass domestic legislation to rewrite the Copyright Act. However, strictly incorporating what the Draft Articles provide to the Act would run directly against what the Parliament intended when it created India’s internet safe harbours. Doing so, Parliament will also be forced to dismantle its own carefully created internet protections.
This also contradicts the government’s recorded stance concerning the FTA. In a January 2026 FAQ press release by PIB on behalf of the Ministry of Commerce & Industry, it was assured that: “There is no obligation on India under the IP Chapter in the India-EU trade deal that requires India to change or modify any of its intellectual property laws, as the provisions in the chapter are consistent with India’s existing intellectual property regime.” If the government moves forward with these terms, unchanged by the December 2026 deadline, it will demonstrate a surrender of Indian digital sovereignty and directly attack the foundations of a Digital India.
