The Internet offers its users endless possibilities. However, just because anything is possible, it does not necessarily mean it is permitted. Indeed, certain online actions may result in copyright infringement. In 2006 in France, for example, several users were given a fine or even suspended prison sentence for having reproduced or distributed protected works, whether films, video games or music files, without the proper authorisation.
Though there have been no such convictions in Luxembourg, it is important to note that Luxembourg’s courts often tend to follow the precedents established in French and Belgian courts because on a number of points, Luxembourg’s laws are almost identical to legislation in these two countries and that there is harmonised Community legislation governing various aspects of copyright. In Luxembourg, the amended Law of 18 April 2001 on copyright, related rights and databases constitutes the statutory benchmark in this matter.
Under the law, the reproduction of copyright-protected works is only lawful with the author’s consent. For example, to legally use reproductions of photographs on a website, the author of these photographs must give their consent. Where the reproduction of photographs or videos of people (famous or not) is concerned, there is also the potential issue of invasion of privacy. This is because all individuals have the exclusive rights to their image and the use thereof, and may oppose its unauthorised distribution. It is, therefore, illegal to feature a person’s photograph on a website without their consent. This rule also applies to the uploading of videos in which they appear. Certain exceptions exist for famous people during public appearances.
The right to protection of privacy, a basic principle about image rights, is established by several texts, including:
Uploading or downloading protected works, including music, films or video games, is only permitted with the author’s consent. The act of saving files onto a computer hard drive is classed as an act of reproduction. In order to avoid illegal downloading, we advise you to visit websites with legal, paid content, where part of the money paid is sent to the authors in exchange for their copyright.
Some peer-to-peer network users claim that downloading protected works is authorised by law due to a derogation made for private copying. Private copying consists of the right granted to an individual to make copies for personal, non-commercial use and supposes ownership of the original.
It is worth bearing in mind that there are certain websites on which some artists offer to the public free access to download and share their music, legally and without limit.
Where trademark reproduction is concerned, whether it is, for example, a logo (figurative trademark) or a name distinguishing the brand (verbal trademark) (for example, for the Nike brand, the tick is the figurative trademark and ‘Nike’ is the verbal trademark), the Benelux Convention on Intellectual Property applies. This convention first refers to the notion of using a sign in business (Article 2.20 points 1.a.-c.).
This means that anyone who wishes to reproduce a trademark in business, in other words, for general trade purposes, must request and obtain permission from the licence holder, namely the brand owner. From this, it can be deduced that the reproduction of a brand on a personal website would not require prior authorisation from the trademark owner, as long as it is not used for commercial purposes. Nevertheless, the use of the brand on the website must not take unfair advantage of the brand’s reputation, nor cause prejudice to it in any way whatsoever.