UK-India Trade Agreement – Centre on Knowledge Governance

Balanced Copyright Protection in the UK-India CETA

Jonathan Band / 24 July, 2025

The full text of the Intellectual Property Chapter of the United Kingdom-India Comprehensive Economic and Trade Agreement, signed on July 24, 2025, is now available for review. Overall, it is much more favorable to balanced copyright protection and user rights than previously released drafts and summaries. The provision for copyright exceptions is the same limited language that first appeared in the UK’s proposed text for the IP chapter leaked in 2022. Article 13.68 Limitations and Exceptions 1. A Party may provide limitations or exceptions in its law to the rights provided for in this Section, but shall confine those limitations or exceptions to certain special cases that do not conflict with a normal exploitation of covered subject matter, and do not unreasonably prejudice the legitimate interests of the right holder. 2. This Article is without prejudice to the scope of applicability of the limitations and exceptions to any rights permitted by the TRIPS Agreement and WIPO administered treaties to which a Party is party. However, the Chapter contains other important language that promotes balance. Thus, Article 13.2(a), setting forth the Objectives of the Chapter, states: the objectives of this Chapter are … that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations…. (Emphasis supplied.) The Chapter then sets forth Principles the Parties may follow in formulating amending their laws. First, the Article 13.3(1) provides that a Party may adopt measures necessary “to promote the public interest in sectors of vital importance to its socio-economic and technological development….” Presumably these sectors would include cultural heritage, research, and education. Second, Article 13.3(2) incorporates language similar to TRIPs Article 40 that appropriate measures may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology. Next, Article 13.4 recites a list of Understandings in respect of the Chapter: [T]he Parties recognise the need to: (a) promote innovation and creativity; (b) facilitate the diffusion of information, knowledge, technology, content, culture and the arts; (c) foster competition and open and efficient markets; (d) maintain an appropriate balance between the rights of intellectual property right holders and the legitimate interests of users and the public interest; (e) establish and maintain transparent intellectual property systems; and (f) promote and maintain adequate and effective protection and enforcement of intellectual property rights to provide confidence to right holders and users, through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including right holders, service providers, users, and the general public. (Emphasis supplied.) The parties reached these Understandings “having regard to the underlying public policy objectives of their national systems, while recognizing the different levels of economic development and capacity and differences in national legal systems….” As noted above, the Agreement does not contain detailed obligations concerning copyright exceptions. Nonetheless, Article 13.71 requiring each Party to provide adequate legal protection against unauthorized circumvention of effective technological measures does permit the Parties to take appropriate measures to ensure that beneficiaries may enjoy exceptions and limitations provided for them. Similarly, Article 13.103 requires each Party to maintain a system to limit the liability of Online Service Providers for infringements of copyright committed by users of their services. Moreover, the language concerning Objectives, Principles, and Understandings provide both the UK and India with sufficient flexibility to adopt robust exceptions that effectively balance the interests of all stakeholders.

The Unclear Status of Copyright Exceptions and Limitations in the UK-India Free Trade Agreement

On May 6, 2025, the United Kingdom (UK) and India announced that they had reached agreement on a bilateral free trade deal that includes a chapter on intellectual property.However, no agreement text was released. Rather, the UK Department for Business & Trade issued a summary of the agreement’s terms, and the summary acknowledged that “work is continuing to finalise the legal text and resolve the last issues.” In other words, at this point there is just an agreement to agree, rather than a real agreement. According to the summary, the IP chapter “will support our economies through effective and balanced protection and enforcement of IP rights.” The chapter will cover copyright and related rights, designs, trademarks, geographical indications, patents, and trade secrets, as well as the enforcement of IP rights. The summary provides little detail concerning copyright and related rights. It simply states that India will also commit to engaging on aspects of copyright and related rights, addressing the interests of UK creators, rights holders, and consumers. This includes around public performance rights and artist’s resale rights, which acknowledge the importance of royalty rights. India will also conduct an internal review of their copyright terms of protection. Further, the summary notes that the chapter “will not commit the UK to domestic legislative change, nor will it undermine the UK’s own IP system or our international positions on IP.” Significantly, the summary is silent on copyright exceptions and limitations. In 2022, a draft of the UK’s proposed text for the IP chapter was leaked. The language concerning copyright exceptions and limitations was limited to the Berne Three Step Test and other treaties: Article H.7: Limitations and Exceptions 1. Each Party may introduce limitations or exceptions in its domestic law to the rights provided for in this Section [H]. but shall confine such limitations or exceptions to certain special cases that do not conflict with a normal exploitation of covered subject matter, and do not unreasonably prejudice the legitimate interests of the right holder. 2. This Article is without prejudice to the limitations and exceptions to any rights permitted by international agreements such as the TRIPS Agreement, the Berne Convention, the Rome Convention, the WCT. or the WPPT. The summary asserts that the agreement would support the economies of the UK and India through “balanced protection” of IP rights, but nothing in the summary, or the UK’s 2022 draft text, reflects balanced protection with respect to copyright. The Three Step Test, by itself, is too ambiguous to provide meaningful balance. Hopefully India insisted upon language that clarified that both parties had the flexibility to adopt more open-ended fair dealing or fair use provisions, like those recently adopted by former British colonies such as Singapore, Malaysia, and Nigeria. For example, the agreement could include language similar to Article 11.18 of the Regional Cooperation for Economic Partnership (RCEP), signed in 2020. That language provides that 3. Each Party shall endeavour to provide an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions consistent with paragraph 1, for legitimate purposes, which may include education, research, criticism, comment, news reporting, and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled. 4. For greater certainty, a Party may adopt or maintain limitations or exceptions to the rights referred to in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in paragraph 1. India initially participated in the RCEP negotiations, but withdrew in 2019 over issues unrelated to intellectual property.