1. Introduction

Copyright law has always been reshaped by copying technology, from the printing press to the photocopier and the video recorder. The digital network changed the problem in kind rather than in degree: a digital copy is identical to the original, costs almost nothing to make and can travel across the world in seconds. Rights holders responded by protecting works not only through law but through technology itself, using encryption on streaming services, authentication chips in game consoles, licence keys in software and paywalls around news. These tools are collectively called Technological Protection Measures (TPMs) and are usually discussed alongside Digital Rights Management (DRM) systems, which identify works and administer the terms on which they may be used.

Technology alone proved fragile, because every lock invites a key. Rights holders therefore sought a second, legal layer of protection that would prohibit the act of breaking the lock. Charles Clark captured this idea in his well-known remark that the answer to the machine lies in the machine.¹ The WIPO Internet Treaties of 1996 obliged member states to provide such legal protection,² and India did so by inserting sections 65A and 65B into the Copyright Act, 1957 through the 2012 amendment.³

The difficulty is that a digital lock cannot tell a pirate from a student, a visually impaired reader, a librarian or a security researcher. A TPM can block acts that copyright law itself permits and can even fence off works that have entered the public domain. The legislative history of the United States statute itself described anti-circumvention rules as a form of "paracopyright", a layer of protection sitting on top of copyright that may go beyond it.⁴ This report examines how Indian law balances the legitimate interest of rights holders in securing digital works against the equally legitimate interest of the public in accessing and using them, compares the Indian model with those of the United States and the European Union, and proposes reforms suited to India's technology ecosystem.

2. Brief Analysis of the Topic

2.1 Meaning and Types of TPMs

TPMs fall broadly into two groups. Access controls decide who may reach a work at all, for example a subscription login, a console that runs only authenticated game discs, or a paywall. Copy or use controls govern what an authorised user may do once inside, such as disabling copying, printing or downloading of an e-book. A related but distinct concept is Rights Management Information (RMI), which is information that identifies the work, its author or owner and the terms of use, such as metadata or digital watermarks. The Indian Act defines RMI in section 2(xa) but, notably, contains no definition of a "technological measure" at all.⁵

2.2 International Framework

Article 11 of the WIPO Copyright Treaty (WCT) requires contracting parties to provide adequate legal protection and effective remedies against circumvention of effective technological measures that authors use in connection with the exercise of their rights, and that restrict acts not authorised by them or not permitted by law. Article 12 imposes a parallel obligation for RMI. Two features of this text matter. First, it is flexible: it does not define a TPM and does not expressly require a ban on circumvention devices. Second, it ties protection to the exercise of copyright and to acts "not permitted by law", which leaves room for states to preserve their exceptions. The United States and the European Union adopted expansive readings of this obligation, while India, which enacted its provisions in 2012 and acceded to the WCT and the WIPO Performances and Phonograms Treaty (WPPT) with effect from December 25, 2018, chose a deliberately narrower model.⁶

2.3 The Indian Legal Framework

Section 65A(1) punishes any person who circumvents an effective technological measure applied to protect rights conferred by the Act, with the intention of infringing those rights, with imprisonment of up to two years and fine. Section 65A(2) then lists what the prohibition does not prevent: circumvention for any purpose not expressly prohibited by the Act (subject to a proviso requiring anyone who facilitates circumvention for another to keep a complete record of that person's identity and purpose); encryption research on a lawfully obtained copy; lawful investigation; security testing of a computer system or network with the owner's authorisation; circumvention of measures meant to identify or surveil a user; and measures necessary for national security.⁷ Section 65B makes knowing removal or alteration of RMI, and knowing distribution of copies from which RMI has been removed, punishable in the same manner, and its proviso preserves civil remedies under Chapter XII.

These provisions operate alongside section 52, which permits, among other things, fair dealing for private use including research, criticism and review, reverse engineering for interoperability, observation and testing of computer programs, and conversion of works into accessible formats for persons with disabilities.⁸ The Statement of Objects and Reasons of the 2010 Bill expressly linked the amendments to harmonising Indian law with the WCT and WPPT.⁹ Table 1 compares the Indian model with its principal counterparts.

Table 1: Comparative overview of anti-circumvention regimes

3. Present Context and Issues

TPMs are now everywhere in India's digital economy: streaming platforms encrypt content, e-book and e-learning platforms restrict downloading and printing, games are tied to authenticated devices and news publishers operate paywalls. Yet reported prosecutions under section 65A are rare. Rights holders have preferred civil suits for infringement and "dynamic" website-blocking injunctions against piracy sites.¹⁰ Against this background, the following issues stand out.

1. Undefined core concepts. The Act does not define "technological measure", "effective" or "circumvent". It is unclear whether a weak password or an easily bypassed region code is "effective", which leaves both users and rights holders uncertain.
2. Fair dealing behind the lock. On paper, Indian law is user-friendly because circumvention for a lawful purpose is not an offence. In practice, most users cannot circumvent a lock without help, and the record-keeping proviso requires anyone who helps to log the user's identity and purpose. This burdens libraries, disability organisations and technicians, and sits uneasily with the purpose-limitation and data-minimisation principles of the Digital Personal Data Protection Act, 2023.¹¹
3. Access to knowledge. Education, libraries and persons with disabilities depend most on exceptions. The Delhi High Court's broad reading of the educational exception in the DU photocopy case shows how access-friendly Indian courts can be,¹² but if course material is supplied only as locked digital files, that exception becomes hollow unless the lock can lawfully be bypassed. India was the first country to ratify the Marrakesh Treaty, Article 7 of which requires that TPM protection not prevent visually impaired persons from enjoying its exceptions.¹³
4. Contractual override. Click-wrap licences can forbid what the Act allows, and the Act has no rule preventing contracts from overriding statutory exceptions. A TPM combined with a restrictive licence can thus remove fair dealing in practice.
5. Repair, interoperability and competition. Software now runs cars, phones and farm equipment. Locks can be used to block independent repair or to tie consumers to branded consumables rather than to protect creative expression. The Department of Consumer Affairs launched a Right to Repair Portal in 2022, but copyright law has not yet been aligned with that policy.
6. Privacy. Some DRM systems monitor users. Section 65A(2) sensibly allows circumvention of measures intended for identification or surveillance of a user, which is more privacy-protective than many foreign regimes.
7. Generative AI and lawful access. In ANI Media v. OpenAI, the Delhi High Court refused an interim injunction, holding prima facie that storage of publicly available news content for training could fall within fair dealing. The Court noted that ANI had not alleged that its works were obtained by breaking through a paywall, and left open the position of paywalled or access-controlled sources.¹⁴ Similarly, the DPIIT committee's working paper proposes a mandatory blanket licence for training on "lawfully accessed" works.¹⁵ TPMs may therefore become the dividing line between lawful and unlawful training data.

4. Future Challenges and Way Forward

Several developments will test the present framework. AI developers need large datasets, which increasingly sit behind access controls. Connected devices embed copyrighted software in ordinary goods. "Purchases" of digital content are increasingly licences that can be withdrawn, weakening any sense of ownership. Libraries and archives need to preserve digital works whose locks may outlive the companies that made them. Circumvention tools are distributed across borders, beyond the reach of national enforcement. The following reforms are suggested:

1. Define key terms. Amend the Act or frame rules to define "technological measure", "effective" and "circumvention", and correct the drafting slip in section 65A(2)(e).
2. Retain the infringement link. India should keep its requirement of intention to infringe and resist pressure in trade negotiations to adopt the strict United States model.
3. Periodic review. Empower the Registrar of Copyrights or DPIIT to hold periodic public consultations and notify additional user exemptions, learning from the United States rulemaking but with a pro-access presumption.
4. Access-enabling duty. Following Article 6(4) of the EU Directive, require rights holders to provide means for beneficiaries of exceptions for education, disability, libraries and research, including text and data mining, to exercise those exceptions.
5. Proportionate record-keeping. Replace the blanket record-keeping proviso with a lighter obligation consistent with the DPDP Act, exempting libraries, educational institutions and disability organisations.
6. Repair and interoperability exemption. Expressly permit circumvention for repair, maintenance and interoperability, in line with the Right to Repair policy.
7. Clarity on AI training. Legislate on whether circumventing a paywall or TPM to gather training data takes the use outside "lawful access", while providing a safe harbour for bona fide research.
8. Graded remedies. Add civil remedies for section 65A so that minor or commercial disputes need not be criminalised.

5. Relevant Case Analysis

Sony Computer Entertainment Europe Ltd. v. Harmeet Singh (Delhi High Court, 2012). The defendants modified PlayStation consoles using "jailbreak" software to bypass Sony's protection and sold them loaded with pirated games. The Court granted an ex parte injunction and appointed local commissioners to seize infringing material, treating the circumvention as integral to the infringement.¹⁶Relevance: it is the leading Indian authority on console circumvention and shows that relief turned on actual infringement, consistent with section 65A's intention requirement.

Universal City Studios, Inc. v. Corley (2d Cir. 2001). The defendant posted and linked to DeCSS, a program that decrypts DVD encryption. The Court upheld an injunction under the anti-trafficking provisions and rejected fair use and free-speech defences.¹⁷Relevance: it illustrates how a regime without an infringement link can prevent lawful uses and restrict the spread of code.

Chamberlain Group, Inc. v. Skylink Technologies, Inc. (Fed. Cir. 2004) and MDY Industries, LLC v. Blizzard Entertainment, Inc. (9th Cir. 2010). In Chamberlain, a rival's universal garage-door remote was held lawful because the plaintiff showed no nexus between the circumvention and copyright infringement. In MDY, the Ninth Circuit rejected any such nexus requirement and held a game "bot" maker liable.¹⁸Relevance: this split shows why India's statutory infringement link is valuable; it settles by legislation what US courts still dispute.

Lexmark International, Inc. v. Static Control Components, Inc. (6th Cir. 2004). Lexmark used an authentication chip to stop third-party toner cartridges from working. The Court refused a preliminary injunction, finding that the chip did not effectively control access to a protected work.¹⁹Relevance: it warns against using TPMs to control aftermarkets and supports a repair and interoperability exemption.

Stevens v. Kabushiki Kaisha Sony Computer Entertainment (High Court of Australia, 2005). The Court held that mod chips enabling play of imported and copied games were not circumvention devices, because Sony's regional access code did not itself prevent acts of infringement.²⁰Relevance: it demonstrates a narrow, purpose-based interpretation of TPMs that protects consumers' use of lawfully bought goods.

Nintendo Co. Ltd. v. PC Box Srl (CJEU, 2014). The Court held that TPMs may cover both consoles and game cartridges, but legal protection must be proportionate: national courts must consider whether less restrictive measures exist and how circumvention devices are actually used in practice.²¹Relevance: the proportionality test is a useful model for Indian courts interpreting "effective" measures.

ANI Media Pvt. Ltd. v. Open AI OpCo LLC (Delhi High Court, 2026). Discussed in Part 3, this interim ruling treated training on publicly available content as prima facie fair dealing, while expressly noting the absence of any allegation of paywall circumvention. Relevance: it signals that in the AI era, whether content was behind a TPM may decide whether its use is lawful.

6. Conclusion

TPMs are a legitimate response to the ease of digital copying, and legal protection against their circumvention is now an international obligation for India. The real question is not whether to protect digital locks but how far. The United States and European models protect the lock almost for its own sake, and their case law shows the costs in lost interoperability, repair, research and access. India's section 65A takes a more balanced path by linking liability to an intention to infringe, allowing circumvention for lawful purposes and protecting users against surveillance. That balance is, however, incomplete: key terms are undefined, the record-keeping proviso is burdensome, contracts can override exceptions and there is no mechanism to update exemptions as technology changes. As generative AI, connected devices and licence-based consumption reshape the digital economy, India should refine rather than abandon its model, ensuring that copyright in the digital age rewards creators without locking the public out of knowledge.

7. References

Statutes and Treaties

• The Copyright Act, 1957 (Act 14 of 1957), ss. 2(xa), 52, 65A, 65B.
• The Copyright (Amendment) Act, 2012 (Act 27 of 2012).
• The Digital Personal Data Protection Act, 2023 (Act 22 of 2023).
• Digital Millennium Copyright Act, 17 U.S.C. §§ 1201–1204 (1998).
• Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society, art. 6.
• WIPO Copyright Treaty, 1996; WIPO Performances and Phonograms Treaty, 1996; Marrakesh Treaty, 2013.

Books, Articles and Reports

• Charles Clark, "The Answer to the Machine is in the Machine" in P. Bernt Hugenholtz (ed.), The Future of Copyright in a Digital Environment (Kluwer Law International, The Hague, 1996).
• Jessica Litman, Digital Copyright (Prometheus Books, New York, 2001).
• Pamela Samuelson, "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised", 14 Berkeley Technology Law Journal 519 (1999).
• Parliamentary Standing Committee on Human Resource Development, 227th Report on the Copyright (Amendment) Bill, 2010 (Rajya Sabha Secretariat, 2010).
• U.S. Copyright Office, Section 1201 of Title 17: A Report of the Register of Copyrights (2017).
• Library of Congress, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies (Final Rule), 89 Fed. Reg. 85437 (Oct. 28, 2024).
• Department for Promotion of Industry and Internal Trade, Working Paper on Generative AI and Copyright, Part I (2025).

Footnotes

1. Charles Clark, "The Answer to the Machine is in the Machine" in P. Bernt Hugenholtz (ed.), The Future of Copyright in a Digital Environment 139 (Kluwer Law International, The Hague, 1996).

2. WIPO Copyright Treaty, 1996, arts. 11, 12; WIPO Performances and Phonograms Treaty, 1996, arts. 18, 19.

3. The Copyright (Amendment) Act, 2012 (Act 27 of 2012), in force from June 21, 2012.

4. H.R. Rep. No. 105-551, pt. 2 (1998) (House Committee on Commerce); see also Pamela Samuelson, "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised", 14 Berkeley Technology Law Journal 519 (1999).

5. The Copyright Act, 1957 (Act 14 of 1957), s. 2(xa).

6. Press Information Bureau, Government of India, "Cabinet approves accession to WIPO Copyright Treaty, 1996 and WIPO Performances and Phonograms Treaty, 1996" (July 4, 2018); the treaties entered into force for India on December 25, 2018.

7. The Copyright Act, 1957, s. 65A(2), cls. (a)–(g). Clause (e) consists only of the word "operator", an apparent drafting slip carried over from clause (d).

8. Id., s. 52(1)(a), (ab), (ac), (zb).

9. The Copyright (Amendment) Bill, 2010 (Bill No. 24 of 2010), Statement of Objects and Reasons; Department-related Parliamentary Standing Committee on Human Resource Development, Two Hundred Twenty-Seventh Report on the Copyright (Amendment) Bill, 2010 (Rajya Sabha Secretariat, November 2010).

10. UTV Software Communication Ltd. v. 1337x.to, 2019 SCC OnLine Del 8002.

11. The Digital Personal Data Protection Act, 2023 (Act 22 of 2023), ss. 4–6.

12. The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services, RFA (OS) 81 of 2016 (Del HC (DB), decided on Dec. 9, 2016).

13. Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, 2013, art. 7 (India ratified on June 24, 2014).

14. ANI Media Pvt. Ltd. v. Open AI OpCo LLC, I.A. 45300/2024 in CS(COMM) 1028/2024, 2026:DHC:5900 (Del HC,

decided on July 24, 2026).

15. Department for Promotion of Industry and Internal Trade, Working Paper on Generative AI and Copyright, Part I (December 8, 2025).

16. Sony Computer Entertainment Europe Ltd. v. Harmeet Singh, CS(OS) 1725 of 2012 (Del HC, order dated May 31, 2012), reported in (2012) 51 PTC 419 (Del).

17. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).

18. Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 (Fed. Cir. 2004); MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Cir. 2010).

19. Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004).

20. Stevens v. Kabushiki Kaisha Sony Computer Entertainment, (2005) 224 CLR 193; [2005] HCA 58.

21. Nintendo Co. Ltd. v. PC Box Srl, Case C-355/12, EU:C:2014:25 (CJEU, decided on Jan. 23, 2014).

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