English 
1. Introduction
Luxembourg has implemented the Copyright Directive on April 18, 2026 by amending the Copyright Act. A new Part 7bis of the Act deals with the protection of technological measures and of rights-management information. Neither effective technological measure may be circumvented nor devices or services that ease circumvention of such technological measures may be provided.
2. Definition of Technological Measures
Section 71ter of the Act contains the definition of protected technological measures. Those are:
· Technologies, devices or components which
· in the normal course of their operation
· is designed to prevent or restrict acts,
· in respect of protected works or performance
· which are not authorised by the right holder of any copyright, related right or database right.
This provision reproduces Article 6 of the Directive almost verbatim (see however the opinion of the Council of State that suggests using, as in the Directive, the terms “subject-matter” instead of “performances”)
However, the explanatory memoranda of the Bill exclude the application of Section 71ter of the Copyright Act to the circumvention of technological measures in order to make an act that does not “come within” copyright (such as mere accessing of a work). The explanatory memoranda points out that: “the circumvention of a regional code of a DVD in order to view a film does not fall a priori under the application of Part 7bis of the Copyright Act”.
Protection against circumvention is only provided to technological measures where the work is protected by copyright, related rights or database rights (this is not the case for instance where the copyright has expired) and where the circumvention is likely to infringe these rights (hence, the permission of the right holder is required).
3. Effectiveness
According to Section 71quater of the Copyright Act, only “effective” technological measures are protected against circumvention. A technology is considered to be “effective”, in the meaning of Section 71ter, paragraph 2, of this Act, if:
· The use of a protected work or performance is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or performance or a copy control mechanism, which achieves the protection objective.
Again, the wording is almost identical to the Copyright Directive (see however again the opinion of the Council of State that suggests using, as in the Directive, the terms “subject-matter” instead of “performances”).
This provision institutes a test of effectiveness but the requirement is not defined precisely. Ultimately, the courts will therefore have to apply this criterion of effectiveness taking into account that, as outlined by the explanatory memoranda with the Bill, technological measures may not prevent the normal operation of electronic equipment and its technological development.
4. Restricted Acts, Sanctions and Remedies
Circumvention
Section 71quater, paragraph 1, of the Copyright Act restricts acts circumventing an effective technological measure, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
Following the explanatory memoranda of the Bill, the violation of this provision constitutes an unlawful act (a tort) in the meaning of Sections 1282 and 1283 of Civil Code and anyone committing such an unlawful act may be held liable under civil law.
Paragraph 3 of this provision introduces also penal liability where the person does not act for a strictly private purpose. In this case, there is a fine from 251 to 250.000 euros. On the other hand, where a person is acting for strictly private purposes, the legislator of Luxembourg considers that it is disproportionate in comparison with the trouble caused to public order to penalize this person with such a fine.
Paragraph 4 of this provision finally underlines that any interested person, including an authorized body to manage copyright, related rights or database rights may start injunction proceedings under Section 81 of the Copyright Act for cessation of the unlawful activity.
Circumvention Devices and Services
Section 71quater, paragraph 2, of the Copyright Act concerns the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of circumvention devices, products or components and the provision of promoted, advertised or commercialized circumvention services.
All these devices and services may be used as cracks for technological measures and the above-mentioned acts are therefore restricted if:
· they are promoted, advertised or marketed for the purpose of circumvention, or
· they have only a limited commercially significant purpose or use other than to circumvent, or
· they are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
The same sanctions and remedies that are mentioned above are applicable.
5. Exemptions and Exemption Procedure
The right holder who applies technological measures statutorily in order to control use and access of the support for the protected work might jeopardize the benefit of legal exemptions on copyright.
Indeed, inasmuch as circumvention of technological measures is not permitted under Section 71quater of the Copyright Act if the right holder has not given his permission, the beneficiary of a legal exemption might not take advantage of it.
However, in accordance with Article 6 (4) of the Directive, Section 71quinquies, paragraph 1, of the Copyright Act obliges the right holders to take the necessary measures, in particular by contract, to ensure an exercise without restriction to beneficiaries accessing lawfully a protected work or performance, for certain exemptions such as for instance exemptions in respect of reproduction in favour of disabled persons, or in respect of reproduction for educational use, private use, preservation purposes, judicial or administrative purposes. In some cases, a fair compensation must be given to the right holders by the beneficiaries of the exception.
If such necessary measures are not set up voluntarily by the right holders, the beneficiaries of the exemption, a professional association or an association representing their interests may under paragraph 2 of this proposed provision take injunction proceedings at the courts in accordance with Section 81 of the Copyright Act for the cessation of the application of technological measures impeding the exercise of the exceptions. However, as regard to reproduction for private purpose, the explanatory memoranda of the Bill state that “the right holders may not be prevented from taking and keeping adequate technological measures in order to limit the number of copies”.
It is finally worthy to note that both the first and second paragraphs of Section 71quinquies of the Copyright Act do not apply to works or performances made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them. An outstanding example is the movie on demand online service, as the Internet user may view the film wherever and whenever he wants.
6. Neighboring Rights & Database Rights
The protection of technological measures in respect of subject matter protected by related rights or database rights is very similar to the protection introduced for copyrighted works.
7. Technological Protection of Software
Section 71sexies of the Copyright Act states that its Part 7bis does not apply to technological measures used in connection with computer programs.
Actually, Section 37 of the Copyright Act already sets up their protection: any person allowing the circulation or possession for commercial purposes of any means the sole intended purpose of which is to facilitate the unauthorized elimination or disablement of possibly built-in technical devices for the protection of a computer program commits an infringement involving civil or criminal liability.
Section 37 mainly differs from Sections 71ter to 71quinquies in that only a person who intentionally offers the means by which technical devices can be circumvented (cracks) is targeted. In addition, the circumvention of these technical devices and the provision of circumvention service are not covered.
8. Miscellaneous & Controversial Subjects
Levies and Technological Measures
The right holders must only ensure some exemptions to their beneficiaries on the condition that a “fair compensation” is received. However, the Copyright Act does not define this notion. Following the explanatory memoranda of the Bill, it seems that the solution will be alternative mechanisms to set a fair compensation rather than lump sum compensation. Contrary to its continental neighbouring countries, Luxembourg has not levied a tax on recording media (e.g. CD-R or DVD-R) in favour of the right holders.
As the Copyright Act does not specify these alternative mechanisms, they will depend on an agreement between the right holders and the beneficiaries of exemptions. Once such an agreement is concluded, the right holder takes voluntary measures to ensure the benefit of exemptions. However, until such a conclusion, the right holder might deny the benefit of an exemption
Encryption Research
Any person who engages in research on encryption systems may violate Sections 71ter to 71quinquies of Copyright Act. However, the explanatory memoranda of the Bill, expressly asserts that the protection of technological measures by these provisions may not impede research on cryptography. In other words, such a protection must respect the proportionality principle and acts and devices that have, from a commercial point of view, another purpose than circumvention are not restricted. The solution remains unclear since it is not easy to draw the line between what can be done and what cannot (e.g as regards publication in an academic journal).
Author:
Corentin Poullet
Laboratoire de Droit Economique
Centre de Recherche Public - Gabriel Lippmann
Last Update:
May 10, 2026
The legislation texts with the proposed provisions are also available in French and English. The explanatory memoranda is available only in French.
Click here for the legislation page
Click here for the explanatory memoranda
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