In an era defined by the velocity of digital innovation and the transnational flow of creative works, India finds itself at the crossroads of tradition and globalisation in the field of intellectual property (IP). The twin pillars of the international copyright architecture — the Berne Convention for the Protection of Literary and Artistic Works (Berne) and the Agreement on Trade‑Related Aspects of Intellectual Property Rights (TRIPS) — remain central to India’s obligations and aspirations. This article explores how India has fared in aligning its domestic legal framework with these treaties, particularly in the digital age, and examines the enforcement challenges facing Indian creators whose works gain international traction.
1. Setting the Scene: Berne and TRIPS in Brief
The Berne Convention, first adopted in 1886 and subsequently revised, established the principle that literary and artistic works deserve protection across borders, without the need for formalities, and that authors should enjoy certain minimum rights. ([scribd.com])
The TRIPS Agreement, which entered into force on 1 January 1995 under the aegis of the World Trade Organization (WTO), brought IP rights into the trade sphere — mandating that member states must implement minimum standards for copyright (and related rights) and ensure enforceability. ([journal.lawmantra.co.in])
Critically, the link between them is explicit: TRIPS Article 9(1) obliges WTO members to comply with Articles 1–21 of Berne. ([worldwidejournals.com])
Thus, for India — as a WTO member and a party to Berne — the expectation is dual: first, to implement the substantive standards of Berne; second, to reinforce those standards with effective enforcement under the TRIPS regime.
2. India’s Legal Alignment: Domestic Law and Treaty Standards
2.1 Historical accession and foundational laws
India ratified the Berne Convention (as revised at Paris) on 7 October 1974. ([worldwidejournals.com]) The foundational domestic statute — the Copyright Act, 1957 — built a regime for literary, dramatic, musical and artistic works, cinematograph films and sound recordings, and provided for protection of foreign works by virtue of the international treaty obligations.
2.2 Amendments in the light of TRIPS
The Copyright Act was amended over the years (notably in 1994, 1999, and 2012) to reflect evolving standards — for instance, to include computer programmes as literary works, to extend broadcasting rights, to strengthen performer rights, and to provide for rights in the digital environment. ([worldwidejournals.com]) A notable commentary observes:
“The Copyright (Amendment) Act,†2012 … the law on copyright is in consonance with the TRIPS Agreement.” ([worldwidejournals.com])
2.3 Core standards: automatic protection, national treatment & minimum terms
Under Berne and TRIPS, several principles are critical:
- Automatic protection: Works are protected upon creation, without formalities (registration etc.). ([ijfmr.com])
- National treatment: A contracting party grants to nationals of other parties treatment no less favourable than that granted to its own nationals. ([ijfmr.com])
- Minimum term of protection: For example, Berne (Art 7) demands life of the author +50 years; TRIPS mirrors that requirement. ([worldwidejournals.com])
India’s law does adopt these notions: registration is not required for protection; foreign works benefit; and minimum terms reflect the international standard.
2.4 Coverage in the digital age and related rights
TRIPS extends minimum standards to related rights (performers, phonograms, broadcasting) under Article 14, though it is acknowledged that the minimum rights in performers/phonograms are somewhat narrower than under older treaties. ([worldwidejournals.com]) Indian law responded with amendments to include rights of performers, broadcasters, and reproduction rights in the 1990s and 2000s. ([worldwidejournals.com])
Moreover, TRIPS Article 10 mandates computer programmes be protected as literary works — a requirement which India incorporated. ([worldwidejournals.com])
3. India’s Performance: Strengths and Shortfalls
3.1 Strengths: A robust foundation
- India was comparatively ahead among developing countries in ratifying Berne and adopting its standards in the Copyright Act. ([scribd.com])
- The 2012 Amendment strengthened author and performer rights, and dealt with emerging digital uses — a positive step towards bringing Indian law into alignment with treaty obligations.
- Many of the minimum standards under TRIPS (for example, the term of protection, rights in computer programmes, broadcast reproduction rights) have been transposed into Indian law.
3.2 Shortfalls and grey areas
- Moral rights: Berne Article 6bis confers moral rights (e.g., right of attribution, to object to derogatory treatment). TRIPS does not require protection of Article 6bis rights (see TRIPS Art 9(2)). ([mckinneylaw.iu.edu]) While Indian law recognises moral rights (in authorship and integrity) via the Copyright Act (Section 57), the jurisprudence remains embryonic and the practical enforceability in the digital context is complex.
- Digital enforcement/parallel imports: While the law provides rights, enforcement in the age of the internet — streaming, global platforms, cross‑border infringement — poses practical challenges. Scholarly analyses flag India’s ongoing work in adapting to enforcement in the digital environment. ([spicyip.com])
- Exceptions & limitations: TRIPS Article 13 allows exceptions/limitations provided they do not conflict with normal exploitation nor unreasonably prejudice rights‑holders. Indian law’s fair dealing provisions and other limitations (Section 52 etc.) reflect this balance, but some commentators argue that the balance tilts in favour of access rather than optimal reward for creators. ([ijfmr.com])
- Transnational protection for Indian creators: While India protects domestic works, ensuring Indian creators gain protections (and enforce them) internationally remains harder — given differing national laws, platform challenges, and jurisdictional hurdles.
4. Digital Globalisation: New Frontiers, New Challenges
The digital era throws a fresh set of questions into the mix. When an Indian author’s work attains visibility in multiple jurisdictions (via streaming, digital publishing, online platforms), treaty‑based protection becomes necessary—but not sufficient.
4.1 Cross-border enforcement
A creator in India may find their work exploited on a foreign platform or by a foreign user. While Berne and TRIPS provide the framework (automatic protection, national treatment), the practicalities of enforcing rights across borders—identifying infringers, securing judgments, executing them—pose obstacles.
4.2 Platform liability and intermediary safe-harbour
The global platforms (video streaming, user‑generated content, social networks) often fall under intermediary regimes. Indian law is still evolving in how it holds intermediaries accountable for infringements of copyright; the treaties themselves provide only minimal normative standards, and much depends on national implementation.
4.3 Adaptation of treaties for new mediums
The original formulations of Berne and TRIPS did not anticipate AI‑generated content, user‑remix culture, streaming‑only models, or blockchain‑based distribution. Indian law must continue to evolve to ensure creators’ rights are protected in these novel contexts.
5. Implications for Indian Creators with International Reach
- Opportunity: From the moment of creation, their works are protected in India (thanks to automatic protection) and, by virtue of national treatment under Berne/TRIPS, in other contracting states. This opens the door to international exploitation, licensing, cross‑border collaborations.
- Caveat: Protection abroad is only meaningful if enforcement mechanisms are workable. Creators must be aware of the varying IP regimes in target countries, the cost of enforcement, and the digital intermediaries’ role.
- Licensing & market access: The treaties support a structure where works can be licensed transnationally; Indian creators need to strategically leverage this by partnering with global intermediaries or rights‑management bodies.
- Digital vigilance: With the proliferation of digital channels, creators must monitor exploitation worldwide, use modern rights‑management tools (digital rights management, metadata, content identification systems) and engage in proactive contract drafting (territories, platforms, formats).
- Public interest balance: Indian law’s limitations/exceptions (for education, research, libraries) reflect a public‑interest balance. Creators should be aware that not every use is strictly exclusive, and they must design contractual and commercial strategies accordingly.
6. Looking Ahead: Policy and Strategic Recommendations
- Strengthen enforcement capacity: India must invest further in digital‑age enforcement (digital forensics, takedown mechanisms, cross‑border cooperation) so that treaty‑based protection yields practical outcomes for creators.
- Enhance platform liability frameworks: Clarifying intermediary obligations under Indian law will help creators by ensuring that platforms can be held accountable for widespread infringing use of their works.
- Harmonise with emerging treaties: India may consider accession or alignment with newer treaties (for example WIPO Copyright Treaty (WCT) or the WIPO Performances and Phonograms Treaty (WPPT)) which better address digital use‑cases.
- Creator awareness & capacity‑building: Indian creators must be educated about international rights, licensing models, digital monetisation, rights‑management technologies and cross‑border risks.
- Balance access and reward: Policy must continue to strike the twin goals of rewarding creators (as the treaties envisage) and ensuring public access (particularly in a developing country context). Development‑sensitive provisions must remain calibrated.
- Continuous legal reform: As technology evolves, the law must keep pace — covering issues such as user‑generated content, artificial intelligence, global streaming, blockchain, non‑fungible tokens (NFTs). The foundational treaties offer minimum standards but not exhaustive solutions.
7. Conclusion
India’s journey under the twin stars of the Berne Convention and the TRIPS Agreement has been commendable in establishing a robust domestic copyright regime, aligning key standards, and offering protection to creators both at home and, in principle, abroad. Yet the real test now lies in the digital age: can Indian creators truly exploit their rights globally, and can the legal and enforcement ecosystem adapt swiftly to protect them?
For creators whose work transcends borders — whether a novelist in Delhi, a filmmaker in Mumbai distributing globally, a digital artist in Bengaluru monetising via international platforms — the international treaty framework is a powerful enabler. But it also demands vigilance, strategy, and global awareness.
As India continues to integrate into the global creative economy, the interplay of treaty compliance, domestic reform, digital architecture and enforcement effectiveness will determine whether Indian creativity commands its rightful place — not just in India, but on the world stage.
About The Author
I am Adv. Tarun Choudhury, Supreme Court advocate with 25 years’ experience and a prominent Intellectual Property lawyer in India. My practice spans copyrights, trademarks, patents and
