Copyright and Commercial Speech: An Uncharted Relationship UNIVERSITAT POMPEU FABRA Facultat de Dret Ramon Trias Fargas, Barcelona European Policy for Intellectual Property (EPIP) 10th Annual Conference September 2nd 2015 University of Glasgow Antoni Rubí Puig

Legal protection of advertising and other forms of commercial speech by freedom of expression. Mapping the relationships between copyright law and commercial speech: Commercial speech can be copyrightable The expressive content of commercial speech may be infringing copyright The products and services that are promoted in the commercial speech may infringe copyright. Summary

Commercial Speech in Europe Article 10 of the European Convention on Human Rights: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Commercial Speech in Europe European Court of Human Rights. Case-law: ECtHR 20 November 1989, Markt intern Verlag GmbH and Klaus Beermann v. Germany and ECtHR 24 February 1994, Casado Coca v. Spain. Other relevant cases: Barthold v. Germany, Hertel v. Switzerland, Stambuk v. Germany, Vereinigung Gegen Tierfabriken SchweizVGT v. Switzerland, and Peta Deutschland v. Germany Test (Casado Coca v. Spain): Prescribed by law, Pursuing one or more of the legitimate aims set out in the second paragraph of Art. 10 ECHR and, Necessary in a democratic society to achieve such aims

Commercial Speech in Europe European Court of Justice Case-law: ECJ Judgment of 25 March 2004, Case C-71/02, Herbert Karner Industrie-Auktionen GmbH v. Troostwijk GmbH; and ECJ Judgment of 2 April 2009, Case 421/07, Criminal proceedings against Frede Damgaard. But See: ECJ Judgment of 5 April 2011, Case C ‑ 119/09, Société fiduciaire nationale d’expertise comptable v. Ministre du Budget, des Comptes publics et de la Fonction publique; and ECJ Judgment of 5 May 2011, Case C ‑ 249/09, Novo Nordisk AS v Ravimiamet. “Necessary in a democratic society to achieve such aims” -  “reasonable and proportional”

Relationships between Commercial Speech and Copyright Commercial Speech is copyrightable Too much incentives? Differents interests at stake Different speakers at stake (work for hire and similar doctrines). The expressive content of commercial speech may be infringing copyright Commercial Speech’s Expressive Content as Copyright Infringement Limitations, fair use, fair dealing. Balancing between two fundamental rights –property and freedom of expression- Subordinate position? Risk with hybrid speeches.

Ludwig Mies van der Rohe Relationships between Commercial Speech and Copyright The products and services that are promoted in the commercial speech may infringe copyright. Commercial Speech’s Promoted Products and Services as Copyright Infringement ECJ Judgment of 13 May 2015, Case C-516/13, Dimensione Direct Sales Srl, Michele Labianca v. Knoll International SpA Precedents: ECJ Judgment of 17 April 2008, Case C-456/06, Peek & Cloppenburg KG v Cassina SpA; ECJ Judgment of 21 June 2012, Case C ‑ 5/11, Titus Alexander Jochen Donner; and ECJ Judgment of 6 February 2014, Case C ‑ 98/13, Martin Blomqvist v. Rolex SA, Manufacture des Montres Rolex SA. Marcel Breuer

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