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

Jane K. Winn, University of Washington - School of Law, and Nicolas Jondet, University of Edinburgh

10/16/2009
(Original Publish Date: 9/18/2009)

In 2007, France created the Regulatory Authority for Technical Measures (l'Autorit' de Regulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed subject to "technical protection measures" (TPM) (also known as "digital rights management" technologies (DRM)), and used by French consumers. 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 Socit' 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 paper 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 19th and early 20th centuries. Using that 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 now evolve at a faster pace, national governments are sure to require more time to develop effective, legitimate ways to insure that global information and communication technology (ICT) standards conform to their national social policies.