Copyright and Commercial Speech: An Uncharted Relationship

Author: Antoni Rubi-Puig (Universitat Pompeu Fabra)

Abstract
Whereas the relationship between copyright law and freedom of speech has been thoroughly discussed both by courts and legal scholars, the relationship between copyright law and commercial speech has not received the same attention. This article aims at filling this gap by providing a detailed discussion of the relations between copyright and commercial speech and their analytical implications, as well as their impact on policy considerations. After providing a comprehensive account of the European Court of Justice and the European Court of Human Rights’ case law on commercial speech, three dimensions of its relationship with copyright law and policy are unveiled: i) commercial speech can be copyrightable; ii) the expressive content of commercial speech may be infringing copyright; and iii) the products and services that are promoted in the commercial speech may infringe copyright. Each of these dimensions involves distinctive analytical and policy implications that are discussed separately. Understanding these implications and the links between copyright and marketing of goods would result in a more nuanced approach to the regulation of the digital single market.

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