Indian Copyright Law and the Berne Convention

International intellectual property law rests on a web of multilateral treaties and conventions that establish minimum standards of protection, define reciprocal obligations among member states and create the framework within which domestic copyright systems operate. At the centre of this web, for copyright, is the Berne Convention for the Protection of Literary and Artistic Works the oldest, most widely ratified and most substantively important international copyright instrument in existence. Adopted in 1886 and revised through a succession of diplomatic conferences over more than a century, the Berne Convention has shaped the copyright law of virtually every country in the world, including India, in ways that are both foundational and pervasive.

India’s relationship with the Berne Convention is long and consequential. As a British colony, India was brought within the Berne Union through the accession of the United Kingdom and following independence, India continued as a member state of the Convention in its own right. The Copyright Act, 1957 was drafted with explicit reference to Berne obligations and successive amendments most significantly the Copyright (Amendment) Act, 1994 and the Copyright (Amendment) Act, 2012 have been driven in part by the need to align Indian law with evolving international standards rooted in or related to the Berne framework. Understanding the Berne Convention and its relationship to Indian copyright law is therefore not an exercise in comparative law detached from domestic practice it is a prerequisite for understanding why Indian copyright law is structured as it is, what obligations it fulfils and where it may require further development.

This article offers a comprehensive examination of Indian copyright law and the Berne Convention moving through the history and structure of the Convention, its foundational principles of national treatment and automatic protection, its minimum standards for the protection of different categories of works, its moral rights provisions, its flexibility mechanisms, the relationship between Berne and the TRIPS Agreement, the WTO dispute settlement implications, the areas in which Indian law satisfies Berne obligations, the areas of potential concern and the direction of future development.

The History and Development of the Berne Convention

The Berne Convention was adopted on the 9th of September 1886 at a diplomatic conference in Berne, Switzerland, convened at the initiative of the Swiss Federal Council and driven intellectually by the advocacy of Victor Hugo and the International Literary Association he led. The Convention was the culmination of several decades of effort to establish a multilateral framework for reciprocal copyright protection among nations, replacing the patchwork of bilateral treaties that had previously governed the international recognition of authors’ rights.

The original Berne Convention of 1886 was a modest document by the standards of its successors, providing for the reciprocal recognition of copyright among member states and establishing some minimum standards for the term and scope of protection. It has been revised at diplomatic conferences in Paris (1896), Berlin (1908), Berne (1914), Rome (1928), Brussels (1948), Stockholm (1967) and Paris (1971). Each revision extended the Convention’s substantive standards, added new categories of works to its scope, strengthened minimum protections and addressed emerging technological challenges.

The 1928 Rome revision introduced Article 6bis the moral rights provision for the first time, recognising the right of paternity and the right of integrity as minimum international standards for the protection of authors’ personal interests in their works. The 1948 Brussels revision strengthened several minimum standards and is the version to which India has historically been most closely aligned in its domestic legislation. The 1971 Paris Act is the current version of the Convention and is the text to which new accessions are made.

The 1967 Stockholm revision was the occasion of a significant diplomatic controversy that shaped India’s relationship with the Berne Convention for many years. Developing countries, led by India, sought the inclusion of an appendix to the Convention that would permit developing nations to apply compulsory licensing for translation and reproduction of copyrighted works for educational and research purposes a mechanism they argued was necessary to make copyright-protected educational materials available in their own languages at affordable prices. The Stockholm Protocol that resulted was rejected by developed country members and was not incorporated into the 1971 Paris Act in the form originally sought. The 1971 Paris Act included a more limited Appendix addressing developing country special provisions for translation and reproduction, which India has invoked in part.

The total membership of the Berne Union now exceeds one hundred and eighty states, making it one of the most widely ratified international agreements of any kind. Every significant country in the world is a member and the Berne framework effectively defines the minimum standards of copyright protection globally.

The Foundational Principles – National Treatment and Automatic Protection

The Berne Convention rests on two foundational principles whose influence on Indian copyright law is pervasive and fundamental: the principle of national treatment and the principle of automatic protection.

The principle of national treatment is established in Article 5(1) of the Convention, which provides that authors shall enjoy, in respect of works for which they are protected under the Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by the Convention. The national treatment principle means that India must give foreign authors whose works attract Berne protection in India the same rights that Indian law grants to Indian authors. An American novelist, a French filmmaker, a Japanese composer each is entitled, in India, to the same copyright protection as an Indian creator of equivalent works, without discrimination based on nationality.

This principle has been implemented in Indian law through Section 40 of the Copyright Act, which provides that the Central Government may, by order, direct that all or any of the provisions of the Act shall apply to works first made or published in any foreign country or to works of authors who are nationals or domiciled in any foreign country, as if such works were made or published in India and as if such authors were citizens of India. The International Copyright Order, 1999, made under Section 40, extends protection to works of authors who are nationals of countries that are members of the Berne Convention, the Universal Copyright Convention or the World Trade Organization effectively ensuring that Indian copyright law’s national treatment obligations are fulfilled with respect to all major copyright-producing countries.

The principle of automatic protection is established in Article 5(2) of the Convention, which provides that the enjoyment and the exercise of rights guaranteed by the Convention shall not be subject to any formality. Copyright must arise automatically upon the creation of a qualifying work, without registration, deposit, notice or any other formality as a condition of protection. This principle has been fully implemented in Indian copyright law copyright in India arises at the moment of creation of an original work and does not require registration or any other formality. The Copyright Office’s registration system is voluntary and declaratory rather than constitutive it creates a presumption of ownership but is not required for copyright to subsist.

The corollary of the automatic protection principle is that India cannot impose formality requirements on foreign works as a condition of their protection. A foreign work that qualifies for protection under the Berne Convention and the International Copyright Order is automatically protected in India from the moment of its creation, regardless of whether it has been registered anywhere or carries a copyright notice. The © symbol and copyright notice that many works carry are relics of the pre-Berne American copyright system, which historically required notice as a condition of protection they have no legal significance in India or in other Berne Convention countries.

The Minimum Standards Framework – What Berne Requires

The Berne Convention establishes a set of minimum standards that all member states must meet in their domestic copyright law. These standards define the floor below which no member state may fall, while leaving member states free to provide more generous protection if they wish. India’s compliance with these minimum standards and the areas where Indian law exceeds or falls short of them is the central concern of the compliance analysis.

The minimum term of protection required by Article 7(1) of the Convention is the life of the author and fifty years after the author’s death. India provides sixty years post mortem auctoris under Section 22 of the Copyright Act ten years more than the Berne minimum. India therefore exceeds the Berne minimum term requirement for authorial works.

For cinematographic works, Article 7(2) permits member states to provide that the term expires fifty years after the work has been made available to the public with the author’s consent or fifty years after the making of the work if it has not been made available. India provides sixty years from publication under Section 26 again exceeding the Berne minimum.

For anonymous and pseudonymous works, Article 7(3) requires a minimum term of fifty years from the date on which the work was lawfully made available to the public. India provides sixty years from publication under Section 23 exceeding the Berne minimum.

For photographic works and works of applied art, Article 7(4) permits a term of not less than twenty-five years from the making of the work. India treats photographs as artistic works under the standard sixty-year post mortem term, providing substantially more protection than the Berne minimum for this category.

The Berne Convention requires protection for literary and artistic works in Article 2, which defines these categories broadly to include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression. Article 2(1) specifically lists books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

Indian law’s definition of literary work, artistic work, dramatic work, musical work and cinematograph film collectively covers all of these categories. The definition of literary work in Section 2(o) is broad enough to encompass every form of written expression. The definition of artistic work in Section 2(c) covers paintings, sculptures, drawings, engravings, photographs, works of architecture and works of artistic craftsmanship. The definition of cinematograph film in Section 2(f) covers any visual recording from which moving images can be produced.

The Berne Convention’s treatment of derivative works in Article 2(3) requires that translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. Indian law protects translations and adaptations as derivative works under Section 14(a)(v) and (vi) and the creation of a translation or adaptation requires the authorisation of the original copyright owner under the adaptation right.

The Moral Rights Provision – Article 6bis

Article 6bis of the Berne Convention is the international foundation of moral rights protection and represents one of the Convention’s most significant contributions to copyright doctrine. It provides that independently of the author’s economic rights and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of or other derogatory action in relation to, the said work, which would be prejudicial to the author’s honour or reputation.

Article 6bis(2) requires that the rights granted in paragraph (1) shall, after the death of the author, be maintained, at least until the expiry of the economic rights and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed.

India’s implementation of Article 6bis through Section 57 of the Copyright Act is broadly compliant with the Convention’s requirements. Section 57 grants both the right of paternity and the right of integrity and provides that they subsist independently of and after the assignment of the copyright. Section 57 goes beyond the minimum required by Article 6bis(2) in one respect it provides that the integrity right persists even after the expiry of the copyright term, whereas Berne only requires maintenance until expiry of the economic rights. This post-expiry moral right is an Indian legislative choice that exceeds the Berne minimum.

The performers’ moral rights introduced by Section 38B of the Copyright Act, 2012 go beyond what Berne requires the Berne Convention does not address performers’ rights at all, which are instead governed by the Rome Convention and the WIPO Performances and Phonograms Treaty. The introduction of performers’ moral rights in Indian law reflects an alignment with the broader international framework of performers’ rights instruments rather than specifically with Berne.

The Economic Rights Provisions

The Berne Convention specifies a range of economic rights that member states must provide to authors. These rights define the minimum scope of copyright protection and Indian law’s implementation of each requires examination.

The right of reproduction in Article 9(1) requires that authors have the exclusive right of authorising the reproduction of their works in any manner or form. Indian law implements this through Section 14(a)(i) for literary, dramatic and musical works, Section 14(c)(i) for artistic works and the equivalent provisions for other work categories. The reproduction right in Indian law is broadly drafted and technology-neutral it extends to storing a work in any medium by electronic means, which covers digital reproduction and therefore satisfies the digital extension that the WIPO Copyright Treaty requires.

The right of public performance in Article 11 requires that authors of dramatic, dramatico-musical and musical works have the exclusive right of authorising the public performance of their works, including by any means or process and the public transmission of the performance. Indian law implements this through the right to perform the work in public or communicate it to the public under Section 14(a)(iii).

The right of broadcasting in Article 11bis requires that authors have the exclusive right of authorising the broadcasting of their works by radio or any other wireless diffusion of signs, sounds or images and the communication to the public by wire or by rebroadcasting of the broadcast of the work and the public communication by loudspeaker or any other instrument transmitting signs, sounds or images of the broadcast of the work. Indian law implements this through the communication to the public right under Section 14(a)(iii) read with the definition of “communication to the public” in Section 2(ff), which encompasses broadcast, satellite transmission, cable communication and any other means of simultaneous communication.

The right of recitation in Article 11ter requires that authors of literary works have the exclusive right of authorising the public recitation of their works and the public transmission of such recitation. This is subsumed within the communication to the public right in Indian law.

The right of adaptation in Articles 12 and 14 requires that authors have the exclusive right of authorising adaptations, arrangements and other alterations of their works and the cinematographic adaptation and reproduction of their works. Indian law implements this through the adaptation right under Section 14(a)(vi) and the right to make a cinematographic film in respect of the work under Section 14(a)(iv).

The translation right in Article 8 requires that authors of literary and artistic works have the exclusive right of authorising the translation of their works throughout the term of protection of their rights in the original works. Indian law implements this through the translation right under Section 14(a)(v).

The Three-Step Test – Article 9(2)

One of the most influential provisions in the Berne Convention is Article 9(2), which establishes what has come to be known as the “three-step test” for permissible limitations and exceptions to the reproduction right. Article 9(2) provides that it shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

The three-step test that an exception must be confined to (1) certain special cases, (2) not conflict with the normal exploitation of the work and (3) not unreasonably prejudice the legitimate interests of the author has been incorporated into the TRIPS Agreement as a general standard applicable to all copyright exceptions and limitations, extending it beyond the reproduction right where Berne first introduced it.

The three-step test has been used by Indian courts as an interpretive guide for the application of Section 52 exceptions. The Delhi High Court’s analysis in the Rameshwari Photocopy Services litigation made reference to international standards including the three-step test in assessing whether the educational exception under Section 52 was compatible with India’s international obligations. The test operates as a limiting principle on the interpretation of Indian copyright exceptions even where a use nominally falls within a listed exception under Section 52, a court may consider whether the exception satisfies all three steps of the Berne test and refuse to extend it to uses that would fail.

The interaction between the three-step test and the closed list structure of Section 52 is significant. The three-step test is a framework for assessing whether exceptions are permissible under international law it does not itself create exceptions. India’s Section 52 exceptions, read in light of the three-step test, should be interpreted in a manner that satisfies all three conditions. Where a proposed application of a Section 52 exception would conflict with normal exploitation or unreasonably prejudice the author’s legitimate interests, the exception should not be extended to cover that application even if it falls within the section’s literal language.

The Berne Appendix – Special Provisions for Developing Countries

The Berne Convention’s 1971 Paris Act includes an Appendix that permits developing countries to avail themselves of compulsory licensing provisions for translation and reproduction of works, subject to conditions designed to limit these provisions to genuine educational and research purposes and to ensure that rights holders are compensated.

The Appendix allows a developing country to declare, by notification to the Director General of WIPO, that it will avail itself of the faculty provided by Article II (for translation licences) or Article III (for reproduction licences) or both. A country that avails itself of these faculties may grant compulsory licences for the translation of works into its national language or languages for educational purposes or for the reproduction of works in copies for use in connection with systematic instructional activities.

India has declared its entitlement to use the Appendix provisions but has not fully implemented them in its domestic copyright legislation. The Copyright Act’s compulsory licensing provisions under Section 31 and Section 31A address related but distinct circumstances compulsory licensing for works withheld from public circulation and for unpublished works whose authors cannot be traced. The specific Appendix licensing mechanisms for translation and reproduction in educational contexts have not been legislated into Indian domestic law with the comprehensiveness that the Appendix permits.

The question of whether India’s domestic copyright framework adequately implements the flexibilities available under the Berne Appendix and whether developing country flexibility mechanisms should be more extensively used to promote access to educational and scientific works is a matter of ongoing policy discussion. The negotiation of the Marrakesh Treaty, which India has ratified and which was implemented through the 2012 amendment’s accessible format provisions, represents a more recent and more successful instance of India using international treaty mechanisms to advance access to copyrighted works for specific categories of users.

Berne and the TRIPS Agreement – The Relationship

The Agreement on Trade-Related Aspects of Intellectual Property Rights, concluded as part of the Uruguay Round of GATT negotiations in 1994, fundamentally transformed the relationship between international trade law and intellectual property. TRIPS incorporated by reference the substantive provisions of the Berne Convention Articles 1 through 21 and the Appendix and made compliance with Berne standards an obligation of WTO membership enforceable through the WTO’s dispute settlement mechanism.

Article 9(1) of TRIPS provides that WTO members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto, with the exception of Article 6bis (moral rights) and the rights derived therefrom. The exclusion of moral rights from TRIPS obligations reflects the resistance of the United States which has historically limited moral rights protection to accepting international enforceable moral rights standards. India, however, provides moral rights protection through Section 57 as a matter of domestic policy that exceeds TRIPS requirements.

TRIPS adds to Berne requirements in several important respects. Article 10(1) of TRIPS provides that computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention explicitly requiring copyright protection for software in a provision that Berne’s open-ended definition of literary works only impliedly covers. India implemented this requirement through the 1994 amendment to Section 2(o), expressly including computer programmes within the definition of literary work.

Article 10(2) of TRIPS provides that compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations, shall be protected as such. This provision embeds the creativity-based originality standard for compilations in the international framework, supporting the approach adopted by the Indian Supreme Court in Eastern Book Company v. D.B. Modak.

Article 14 of TRIPS extends protection to performers, producers of phonograms and broadcasting organisations categories not covered by the Berne Convention. India’s implementation of Article 14 through the performers’ rights provisions of Sections 38 to 39A and the broadcast reproduction right under Section 37 satisfies these TRIPS obligations, though the 2012 amendment was required to bring the performers’ rights provisions fully up to the TRIPS standard.

The enforcement obligations of TRIPS Articles 41 to 61 require WTO members to provide effective civil, administrative and criminal enforcement mechanisms for intellectual property rights, including copyright. India’s enforcement framework under the Copyright Act, providing for injunctive relief, damages, account of profits, delivery up of infringing copies and criminal penalties under Sections 63 to 66, broadly satisfies TRIPS enforcement requirements, though the practical effectiveness of that framework in the digital environment continues to be questioned by rights holders.

The WIPO Internet Treaties – The Digital Extension of Berne

The rapid growth of the internet in the 1990s created urgent pressure to update the Berne framework to address digital copyright issues that the Convention’s existing text did not clearly cover. The WIPO Copyright Treaty, 1996 (WCT) and the WIPO Performances and Phonograms Treaty, 1996 (WPPT) together known as the WIPO Internet Treaties were adopted to provide this digital extension.

The WIPO Copyright Treaty clarifies and extends Berne standards in several significant respects. Article 4 requires that computer programs be protected as literary works within the meaning of Article 2 of the Berne Convention. Article 5 requires that compilations of data be protected as intellectual creations based on the selection or arrangement of their contents. Articles 6 and 7 establish distribution and rental rights for authors. Article 8 establishes the “making available” right the right of authors to authorise any communication to the public of their works, including in a manner that members of the public may access from a place and at a time individually chosen by them which is the right most directly applicable to on-demand internet distribution and streaming.

Articles 11 and 12 of the WCT require member states to provide adequate legal protection against the circumvention of effective technological measures and against the removal or alteration of rights management information. India implemented these obligations through Sections 65A and 65B of the Copyright Act, introduced by the 2012 amendment.

India signed the WIPO Copyright Treaty in 1997 and ratified it with the 2012 amendments that brought domestic law into compliance with the Treaty’s requirements. The making available right was incorporated into the definition of “communication to the public” in Section 2(ff), which now encompasses making any work available by any means of display or diffusion a formulation broad enough to cover on-demand internet streaming and other forms of digital transmission at the user’s individual selection.

The WIPO Performances and Phonograms Treaty similarly extends international standards to performers and sound recording producers. Articles 6 through 10 establish economic rights for performers in their unfixed performances, in fixed performances (phonograms) and in broadcasts. Articles 18 and 19 establish corresponding rights for producers of phonograms. India’s 2012 amendments to the performers’ rights provisions and the expansion of the broadcast reproduction right brought Indian law substantially into alignment with WPPT standards, though the full implementation of all WPPT requirements continues to be assessed.

Areas of Compliance – Indian Law and Berne Standards

India’s copyright framework satisfies Berne Convention requirements in the following principal respects.

The term of protection, at sixty years post mortem auctoris, exceeds the Berne minimum of fifty years for all categories of authorial works. The automatic subsistence of copyright without any formality requirement fully implements Article 5(2). The national treatment obligation is fully implemented through the International Copyright Order, 1999, which extends protection to works of authors from Berne Union member states on the same terms as Indian works.

The full range of economic rights required by Berne reproduction, translation, adaptation, public performance, broadcasting and recitation is implemented through Section 14’s comprehensive rights catalogue. The moral rights provisions of Section 57 implement Article 6bis and exceed its minimum requirements in several respects, including the post-expiry persistence of the integrity right.

The three-step test, while not expressly incorporated into the Copyright Act, has been applied by Indian courts as an interpretive standard for the Section 52 exceptions, ensuring that those exceptions are not extended beyond the boundaries that Berne permits.

The digital extension requirements of the WCT are implemented through the 2012 amendments the making available right through Section 2(ff), the anti-circumvention provisions through Section 65A and the rights management information protection through Section 65B.

Areas of Potential Concern – Where Indian Law May Fall Short

While India’s copyright framework is broadly compliant with Berne and TRIPS obligations, several areas of potential concern have been identified by international partners and commentators.

The rental right under Article 7(2) of TRIPS, which requires rental rights for computer programs, cinematographic works and phonograms in circumstances where such rental leads to widespread copying that would materially impair the exclusive right of reproduction, is implemented in Indian law for computer programs under Section 14(b) and for films and sound recordings through the sale or hire right under Sections 14(d)(ii) and 14(e)(ii). The adequacy of these provisions in the context of digital rental and streaming services has not been tested in WTO dispute settlement.

The making available right under Article 8 of the WCT the right to authorise on-demand communication to the public is implemented through the broad definition of “communication to the public” in Section 2(ff). However, the Bombay High Court’s decision in Tips Industries Ltd. v. Wynk Music Ltd. holding that the statutory licence under Section 31D does not extend to on-demand streaming has implications for the licensing landscape that may create compliance concerns if the statutory licence were interpreted to defeat the making available right in other contexts.

The adequacy of enforcement mechanisms particularly in the digital environment is a recurring concern raised by developed country trading partners in the context of TRIPS compliance reviews. The Special 301 Report of the United States Trade Representative has repeatedly listed India on its Priority Watch List, citing concerns about digital copyright enforcement, camcording in cinemas, commercial-scale piracy and the effectiveness of the legal framework for online infringement. India has consistently disputed these characterisations, arguing that its enforcement framework satisfies TRIPS requirements and that Special 301 assessments reflect commercial interests rather than objective compliance evaluation.

The treatment of Internet Service Provider liability and the notice-and-takedown framework under Section 79 of the IT Act has been questioned by rights holders who argue that the framework does not provide sufficiently effective remedies against large-scale online infringement. The TRIPS Agreement’s enforcement obligations require that remedies be available that constitute a deterrent to further infringement a standard that may not be consistently met in the context of large-scale digital copyright infringement by platforms and their users.

The TRIPS Dispute Settlement Dimension

One of the most significant consequences of the incorporation of Berne standards into TRIPS is that non-compliance with Berne obligations can be challenged through the WTO’s binding dispute settlement mechanism. A WTO member that believes India has failed to comply with Berne-derived TRIPS obligations may bring a dispute settlement proceeding before the WTO Dispute Settlement Body, potentially resulting in authorised retaliation if India fails to bring its domestic law into compliance.

No WTO dispute settlement proceeding has been brought specifically against India’s copyright framework, though the United States and European Union have consistently raised concerns about Indian intellectual property protection in the context of bilateral trade discussions and TRIPS Council reviews. The TRIPS Agreement’s minimum standards provide a baseline below which India may not fall and the WTO dispute settlement mechanism provides a legal enforcement mechanism that bilateral pressure does not.

The prospect of WTO dispute settlement has been a significant driver of Indian copyright reform. The 1994 amendments, which among other things introduced computer program protection and sound recording rights, were motivated in part by the need to satisfy TRIPS obligations that were being negotiated contemporaneously. The 2012 amendments similarly reflected awareness of TRIPS compliance requirements, particularly with respect to performers’ rights and the digital extension provisions of the WCT.

The Universal Copyright Convention – India’s Parallel Membership

India is also a member of the Universal Copyright Convention, concluded in Geneva in 1952 and revised in Paris in 1971 under the auspices of UNESCO. The UCC was designed as a complementary instrument to Berne less demanding in its minimum standards and intended to accommodate the United States’ formality requirements at a time when the United States was not a Berne member and it provides an alternative framework for the international protection of works by authors from countries that are not Berne Union members.

The UCC’s practical significance has been substantially reduced by the near-universal membership of the Berne Convention and by the United States’ eventual accession to the Berne Convention in 1989. Most copyright relationships that previously depended on UCC protection are now governed by Berne or TRIPS. India’s dual membership provides a belt-and-suspenders approach to international copyright protection, ensuring that works by Indian authors are protected in the remaining UCC-only countries.

India’s Contribution to the International Copyright Framework

India’s engagement with the international copyright system has not been purely passive. India has been an active participant in the negotiation of international copyright instruments and its position on several significant issues has shaped the development of international standards.

India was among the leading advocates for the inclusion of exceptions and limitations for developing countries in the WIPO Copyright Treaty negotiations and it played a significant role in the negotiations that produced the Marrakesh Treaty the first international copyright treaty specifically dedicated to expanding access rather than strengthening protection. India’s signature and ratification of the Marrakesh Treaty and the implementation of its accessible format provisions through the 2012 amendment, demonstrate that India is capable of constructive engagement with international copyright norm-setting when the resulting instrument aligns with domestic policy priorities.

India has also been an active participant in WIPO’s ongoing discussions about the relationship between copyright and genetic resources, traditional knowledge and traditional cultural expressions areas where the standard copyright framework does not adequately protect the intellectual and cultural heritage of indigenous and local communities. While these discussions have not yet produced a binding international instrument, India’s advocacy for sui generis protection of traditional knowledge and folklore reflects a domestic policy concern about the adequacy of the Berne framework for protecting non-Western forms of creative expression.

The Future – International Copyright Developments and India

The international copyright landscape continues to evolve in ways that will require India to assess and potentially update its domestic framework. Several developments deserve monitoring.

The ongoing discussion at WIPO of a potential treaty on broadcasting organisations a long-delayed update to the Rome Convention’s broadcasting provisions would create new international obligations in respect of broadcast rights. India’s current broadcast reproduction right under Section 37 may require review depending on the final form of any broadcasting treaty.

The WIPO discussions on artificial intelligence and intellectual property, discussed in the dedicated article on AI and copyright, are likely eventually to produce some form of international guidance or treaty instrument addressing AI authorship, training data and the copyright status of AI-generated outputs. India will need to position itself in these discussions and ultimately to implement whatever standards emerge.

The proposed WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, if concluded, would create new obligations in areas where Indian domestic law currently provides limited protection and its implementation would require legislative attention to copyright’s relationship with traditional knowledge and folklore.

Conclusion

The Berne Convention is not a historical document of purely academic interest it is the living international framework within which Indian copyright law operates, the source of the minimum standards that Indian domestic law must satisfy and the foundation of the reciprocal international protection that Indian authors and rights holders receive in foreign markets. Understanding the relationship between Indian copyright law and the Berne Convention is therefore understanding the international dimension of copyright that shapes domestic law in ways both visible and invisible.

India’s copyright framework is broadly compliant with Berne and TRIPS obligations and in several respects the post mortem auctoris term, the post-expiry moral rights, the performers’ moral rights it provides more than the minimum international standards require. The areas of concern digital enforcement, the treatment of ISP liability, the adequacy of the anti-circumvention framework are real but contested and India’s position that its framework satisfies international obligations is defensible even if not universally accepted.

The forward-looking challenge for Indian copyright law is to continue engaging with the international framework constructively satisfying existing obligations, participating actively in the development of new standards, using available flexibilities to serve domestic policy priorities and ensuring that the domestic copyright framework keeps pace with technological developments that the Berne Convention’s framers could not have imagined. The Berne Convention will not resolve the questions raised by artificial intelligence, generative content and the data economy but it provides the foundational framework within which those questions will be addressed internationally and India’s engagement with that framework will shape both the international standards that emerge and the domestic legislation that implements them.

References

Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) https://www.wipo.int/treaties/en/ip/berne/
The Copyright Act, 1957 https://copyright.gov.in/Documents/CopyrightRules1958.pdf
The Copyright (Amendment) Act, 2012 https://copyright.gov.in/Documents/Amendment_Act2012.pdf
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994 https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
WIPO Performances and Phonograms Treaty, 1996 https://www.wipo.int/treaties/en/ip/wppt/
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, 2013 https://www.wipo.int/treaties/en/ip/marrakesh/
Universal Copyright Convention, 1952 (revised 1971) https://en.unesco.org/creativity/sites/creativity/files/passeport-berne-convention-web.pdf
Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1
Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services, CS(OS) 2439/2012 (Delhi High Court, 2016)
Tips Industries Ltd. v. Wynk Music Ltd. (2019), Bombay High Court
Amarnath Sehgal v. Union of India, 117 (2005) DLT 717 (Delhi High Court)
Indian Performing Right Society v. Eastern India Motion Pictures Association, AIR 1977 SC 1443 https://indiankanoon.org/doc/553674/
WIPO Berne Convention Overview https://www.wipo.int/copyright/en/
Copyright Office of India https://copyright.gov.in
WTO TRIPS Agreement Overview https://www.wto.org/english/tratop_e/trips_e/trips_e.htm

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