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

Abstract

In 2007, France created the Regulatory Authority for Technical Measures (l’Autorité de Régulation des Mesures 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 Société 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.

Keywords: DRM, ICT, interoperability, DADVSI, ARMT, HADOPI, TPM, ICC, administrative authority, France

JEL Classification: K11, K23, K33