LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre and Florentine Frias, Elvinger Hoss Prussen
3.2 Essential Elements of Copyright Protection A work must be original and must be fixed in a tangible medium (which can be digital or dema - terialised) in order to qualify for authors’ rights protection. The originality criterion is not defined by the Authors’ Rights Law, but is defined by case law. A work is original when it bears the imprint of its author’s personality and goes beyond technical know-how. This is a subjective notion, different from novelty, and is assessed by the courts on a case-by-case basis. The origi - nality of a work must not be confused with its artistic value, which should be irrelevant. 3.3 Copyright Authorship Pursuant to the Authors’ Rights Law, authorship belongs to the person or persons under whose name the work is disclosed, in the absence of proof to the contrary. The Authors’ Rights Law provides that where a computer program is created by an employee in the performance of their duties or on the instruc - tions of their employer, the employer alone shall be entitled to exercise all economic rights in the computer program so created. Parties may pro - vide otherwise by contract. The Luxembourg courts have not yet given a rul - ing (at least published) on the question of wheth - er someone may claim authorship of a work that was not created by a human (eg, works created by artificial intelligence software or an animal). Joint Authorship Joint authorship may arise in the context of col - laboration projects to which several authors contribute. There is no specific requirement for joint authorship of an original work, except that individual contributions of two or more authors can be traced within a joint work.
trade mark owner may also prohibit the use of a subsequent sign as a trade or company name if such use infringes its exclusive rights (see 2.3 Trade Mark Rights ). 2.5 Notices and Symbols Under the Benelux Convention, there is no requirement to use a symbol denoting that a trade mark is registered. The use of a symbol like ® does not provide any protection and has no legal value in Luxembourg. 2.6 Related Rights A trade mark can also be protected by copyright or related rights – eg, in the case of logos. The corresponding legislation will apply indepen - dently. A trade mark owner cannot prohibit the use by an individual of his/her name in the course of trade if such use is made in accordance with honest practices in industrial or commercial matters. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Pursuant to the Authors’ Rights Law, “authors’ rights protect original literary and artistic works, whatever their type, form or expression, includ - ing photographs, databases and computer pro - grams”. To mention just a few examples, musi - cal works, choreography and architectural works may therefore be protected under authors’ rights. Industrial designs are also entitled to authors’ rights protection to the extent they are original. The protection will be automatic (as for all original works).
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