Jonathan Band
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.
