Academic journal article William and Mary Law Review

A New Deal for End Users? Lessons from a French Innovation in the Regulation of Interoperability

Academic journal article William and Mary Law Review

A New Deal for End Users? Lessons from a French Innovation in the Regulation of Interoperability

Article excerpt

ABSTRACT

In 2007, France created the Regulatory Authority for Technical Measures (l'Autorite de Regulation des Measures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Societe de l'Information" (DADVSI). ARMT is both a traditional independent regulatory agency and a novel attempt to develop a new governance structure at the national level to address global information economy challenges. The fear that other national governments might follow suit seems to have helped to cool enthusiasm for TPM among some businesses. This Article notes parallels between the limitations imposed on ARMT and those imposed on the first modern independent regulatory agencies that emerged in the United States in the late nineteenth and early twentieth centuries. Using history as a guide, it is not surprising that the ARMT's exercise of authority has been limited during its early years; it remains possible that ARMT may become a model for legislation in other countries. It took decades before the first American independent regulatory agencies exercised real authority, and their legitimacy was not established beyond question until Roosevelt's "New Deal." Even though information society institutions may evolve quickly, national governments are sure to require more time to develop effective, legitimate ways to ensure that global information and communication technology (ICT) standards conform to their national social policies.

TABLE OF CONTENTS

INTRODUCTION

  I. REGULATORY AUTHORITY FOR TECHNICAL MEASURES
     A. The Interoperability Requirement
     B. The Inadequacy of Existing Institutions
     C. The ARMT: Its Inherent Limitations and Impact

 II. INDEPENDENT REGULATORY AGENCIES IN
     AMERICA AND FRANCE
     A. Independent Regulatory Agencies in America
     B. Independent Regulatory Agencies in France

III. TECHNICAL STANDARDS AND REGULATION

CONCLUSION

INTRODUCTION

In 2007, France created the Regulatory Authority for Technical Measures (l'Autorite de Regulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting interoperability of media technologies used by French consumers. (1) ARMT is both a traditional independent regulatory agency and a novel attempt to develop a governance structure to address information economy challenges. (2) The growth of digital media and the expansion of global electronic communications networks have revolutionized the ways in which information is created, distributed, and accessed. (3) Although these changes have made possible many new forms of creativity and processes for exchanging ideas, they have also dramatically facilitated the unauthorized reproduction and distribution of copyrighted works. The ensuing mass copyright infringement threatened traditional business models in the music, film, broadcasting, and video game industries. In an attempt to stifle such piracy, the media industry has implemented various strategies with a predilection for technological solutions and for the toughening of copyright laws. Indeed, content producers have embedded technologies in media software and hardware to control the way in which consumers can access, use, and copy digital media. These technologies are commonly known as "Digital Rights Management" systems (DRMs) but are referred to in legal instruments as 'Technological Protection Measures" (TPMs). (4) Unfortunately, for the media industry, TPMs are inherently fallible as ingenious hackers always find ways to circumvent them. …

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