The INDIA – EU Free trade agreement whose negotiation concluded on 27 January, 2026 has mostly been discussed for its tariff concessions. Chapter 10 on Intellectual property deserves equal attention. One caveat that applies throughout is that the text is not FINAL. The European Commission released it for information, subject to legal revision, and it binds the parties only after each completes its internal procedures. Article numbers below follow that published text and may change. The analysis rests on published text and on the Indian provisions cited.
At, first reading, Chapter 10 looks like it tightens IP protection across the board but, it doesn’t. Most of it just restates TRIPS or what Indian law already provides. This blog argues that the real friction lies in in places: broader measures, especially goods in transit; anti-circumvention rules against Section 65A of the Copyright Act, trade-secret procedure, and plant variety protection. Elsewhere India either already complies or has secured concessions, notably on public health, exhaustion and genetic resources.
Legal effect: what “requires” means
India follows a dualist approach. Article 253 of the constitution empowers Parliament to legislate to implement international obligations and Article 73 gives the executive the power to enter them. In Gramophone Co. of India v. Birendra Bahadur Pandey, 1984 2 SCC 241 the supreme court established the principle that international law can inform and guide Indian courts, but where international law conflicts with clear domestic legislation, domestic law prevails. Where there is no conflict, courts read domestic law consistently with India’s international obligations to fill up vacuum as held in Vishaka v. State of Rajasthan (1997) 6 SCC 241. Chapter 10 therefore binds India as a state; it does not create rights that Indian courts apply directly. Article 10.3 lets each party grant more extensive protection provided it does not conflict with the Chapter, mirroring TRIPS Article 1(1). The question for each provision is thus whether existing Indian law and practice already satisfies it.
Public health and Patents
Chapter 10 has no dedicated patent section. Article 10.6 reaffirms the Doha Declaration and preserves Articles 31 and 31bis of TRIPS. India’s compulsory licensing powers under Sections 84, 92 and 92A of the Patents Act and its government used power under Section 100, are untouched. Articles 10.1(2) and 10.2 also import TRIPS Articles 7 and 8, the provisions the Supreme Court reproduced in Novartis Ag vs Union Of India & Ors when refusing a patent on a new form of a known substance under Section 3(d). Protection, in short, is a balance between innovation, competition, public health and access, not simply stronger rights for holders.
The silence on patents matters because of history. The EU was widely reported to seek data exclusivity and patent-term extension, which drew sustained generic-medicine opposition. The 2008–09 seizures in Europe of Indian generics in transit led India and Brazil to bring WTO disputes (DS408 and DS409), that were alter settled. Against that background, a text without patent-term or exclusivity commitments is a substantive outcome for India, not a drafting gap.
Copyright terms
Article 10.20 requires protection for life plus at least 60 years, which Section 22 of the copyright Act already provides, and which is below the EU’s own 70-year term and above Berne/TRIPS minimum plus 50 . The minimum term for performers which is at least 50 years matches exactly with the copyright act section 38(2), the protection for producers of phonograms / sound recording in the IP chapter is 50 years which in India exceeds more the than the FTA i.e. 60 years , while for broadcasting organisations the protection meets exactly the same criteria of 25 years in chapter 10 and section 37(2) respectively.
Resale right
Article 10.16 requires a resale royalty that is “inalienable” and “cannot be waived, even in advance”. Section 53A already gives a share, capped at 10%, where an original painting, sculpture, drawing or manuscript is resold for over ₹10,000, “notwithstanding any assignment of copyright”. Two gaps remain. First, Section 53A is silent on waiver, which is what Article 10.16 targets. Second, it benefits only an author who was first owner under Section 17, so commissioned paintings and portraits (Section 17(b)) fall outside it, whereas Article 10.16 speaks of “the author of an original work of art”.
Two features favour India. Article 10.16(2) sets a floor, resales involving “at least” art-market professionals, so India’s wider coverage is no problem, and Article 10.16(3) leaves amounts and collection to domestic law. The weakness is operational: the Commercial Court, which replaced the IPAB under the Tribunals Reforms Act, 2021, merely “may fix” the share, and no scale or collection mechanism appears to exist.
TECHNOLOGICAL PROTECTION MEASURES.
This is the real copyright issue, though its scope is narrower than it first appears. Article 10.18 requires “adequate legal protection and effective legal remedies” against circumventing effective technological measures that restrict acts “not authorized by the right holder or permitted by law”, where the person acts “in the knowledge, or with reasonable grounds to know” of that objective. The wording tracks Article 6(1) of the EU’s InfoSoc Directive (2001/29/EC). Article 10.19 does the same for rights management information, which Section 65B broadly mirrors, although Section 65B also turns on “knowingly”, so the mental-element question arises there too.
Section 65A differs in two ways. It penalises circumvention only “with the intention of infringing”, a subjective test narrower than reasonable grounds to know, and it is purely criminal, whereas Article 10.18 speaks of legal remedies. The words “permitted by law” help India, because they preserve Section 52 exceptions, and Article 10.18 allows a separate regime for computer-program measures. But Section 65A(2)’s list is narrower than Section 52, which critics say protects education, research, interoperability, library preservation and accessible formats. India acceded to the WCT and WPPT in 2018, so baseline obligations exist, and the FTA will not itself amend the Copyright Act. India’s task is to align the mental element, arguably add civil remedies, and write Section 52’s exceptions into Section 65A expressly, using the three-step test in Article 10.21 as the benchmark.
TRADE SECRETS
Article 10.37 defines a trade secret by secrecy, commercial value and reasonable protective steps, tracking TRIPS Article 39(2), which already binds India. The weight falls on Articles 10.37(1) and 10.38: civil remedies against acquisition, use or disclosure “contrary to honest commercial practices”, provisional measures, injunctions, damages, confidentiality during proceedings and sanctions for breaching confidentiality orders. The text is drawn from the EU Trade Secrets Directive (2016/943) but is softer. Reverse engineering and independent discovery are not treated as unfair (Article 10.37(4)), employee mobility is protected (Article 10.37(5)), and whistleblowing may defeat a claim (Article 10.38(4)). Article 10.41(1) excludes trade secrets from the general enforcement provisions, so Articles 10.37–10.38 are the whole obligation.
India has no standalone statute; protection rests on contract and breach of confidence. Delhi High Court decisions such as Burlington Home Shopping v. Rajnish Chibber (1995) and Diljeet Titus v. Alfred Adebare (2006) protect customer databases and client information through copyright and confidence, and courts supply many Article 10.38 remedies through Order XXXIX of the CPC, confidentiality clubs and contempt. Because Article 10.3(2) leaves the method of implementation to each Party, case-by-case practice may satisfy the treaty without codification. The Law Commission’s 289th Report (2024), Trade Secrets and Economic Espionage, nonetheless recommended standalone legislation, which would have to address Section 27 of the Contract Act and Section 8(1)(d) of the RTI Act.
Test data, plant varieties and genetic resources
Article 10.39 reproduces TRIPS Article 39.3 almost verbatim: undisclosed test data for pharmaceutical and agricultural chemical products using new chemical entities is protected against unfair commercial use and disclosure. It sets no exclusivity period. Whether “unfair commercial use” demands exclusivity is contested: the EU and US say yes, India says TRIPS requires none. Nothing in Article 10.39 forecloses India’s reading.
Article 10.40 requires plant variety protection through patents, an effective sui generis system, or both, with at least 18 years for trees and vines and 15 for other varieties (footnote 9 even permits shorter terms subject to review and renewal). India’s PPVFR Act, 2001 (Section 24(6)) provides exactly 15 and 18 years, and Section 3(j) of the Patents Act excludes plants and seeds, so the sui generis route is already India’s. These terms sit below UPOV 1991’s minimums of 20 and 25 years, so the FTA does not import UPOV 1991. Article 10.40 is silent on farmers’ rights under Section 39 of the PPVFR Act.
Article 10.10 affirms the importance of the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge and, in 10.10(4), acknowledges that disclosing origin in patent applications promotes transparency, recognising databases such as India’s TKDL. India already requires disclosure under Section 10(4)(d)(ii) of the Patents Act and Section 6 of the Biological Diversity Act, so the cost is low, but the Treaty’s benefit depends on its entry into force. Article 10.7 also leaves exhaustion to each Party, preserving India’s international exhaustion for patents under Section 107A(b) and parallel imports.
Enforcement and border measures
Article 10.41 requires effective, proportionate and dissuasive remedies, and further provisions cover evidence preservation, information on the origin and distribution of infringing goods, damages and costs. Indian courts already grant Anton Piller and John Doe orders, Norwich Pharmacal disclosure, dynamic injunctions against rogue websites as held in UTV Software v. 1337x, Delhi HC 2019 and costs under Section 35 of the Commercial Courts Act. Much of the enforcement text codifies existing judicial practice.
Border measures look more novel. Article 10.55 covers goods infringing trademarks, copyright, geographical indications and designs. TRIPS makes border measures mandatory only for counterfeit trademark and pirated copyright goods. But India’s IPR (Imported Goods) Enforcement Rules, 2007, issued under Section 11 of the Customs Act, already cover imports infringing trademarks, copyright, patents, designs and GIs. For imports the delta is therefore small; the real questions are exports, goods in transit and ex officio action. Patents’ exclusion from Article 10.55 is itself significant for generics.
9. WHAT DOES CHAPTER 10 ACTUALLY CHANGE?
| Issue | Chapter 10 | Position for India |
| Copyright terms | Minimum terms including life + 60 years for authors. | India already meets the relevant minimums. |
| Resale right | Inalienable resale royalty right in specified art-market transactions. | India already has Section 53A; precise compliance questions remain. |
| TPMs and rights management information | Articles 10.18–10.19: legal protection and remedies against circumvention. | Partial gap: Section 53A is silent on waiver, excludes commissioned works (s.17(b)), and has no operational scale. |
| Trade secrets | Detailed definition and procedural remedies. | Potential need for additional statutory/procedural architecture. |
| Pharma data | Protection against unfair commercial use/disclosure; no fixed exclusivity period. | No new mandatory data-exclusivity term identified. |
| Plant varieties | At least 15/18 years; patents or sui generis. | Already compliant (PPVFR Act). |
| Border measures | Mandatory coverage extends to GIs and industrial designs. | A clearer TRIPS-plus enforcement obligation. |
| Patents | No dedicated patent section. | Patent regime remains principally under existing TRIPS/domestic framework. |
Conclusion
Chapter 10 is a selective TRIPS-plus text, not a rewrite of Indian IP law. India’s negotiators kept its public-health flexibilities, avoided data exclusivity and preserved exhaustion. Three tasks follow. First, clarify Section 65A so that its exceptions survive any wider anti-circumvention duty. Second, decide on trade-secret legislation, using the Law Commission’s 289th Report as the starting point. Third, audit Section 53A, the plant variety terms and the customs rules against the final text. Because the agreement is not yet in force, the transitional periods and the final wording will decide how much of this becomes obligation.
Authored by: Mr. Kartik D. Verma