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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.
... Current technology certainly offers many ways to ensure some level of interoperability [4,13], but "the conventional means of achieving interoperability in ICT markets is through standards" [19] 13 , i.e., "a set of technical specifications that seeks to provide a common design for a product or process" [21]. ...
... Guaranteeing interoperability through the definition of standards, however, has its drawbacks. These include, for example, "problems of obsolescence and inefficiency" that standardization may create, "because technological innovation may proceed at a faster pace than law reform" [19]; a reduction of investments in innovation [22]; and issues in granting access to proprietary standards [23]. ...
... Article 81 TFEU provides in particular that cooperation on civil matters "may include the adoption of measures for the approximation of the laws and regulations of the Member States" 19 and, "particularly when necessary for the proper functioning of the internal market, aimed at ensuring: . . . effective access to justice" 20 , which is a new noteworthy part added in the TFEU, in addition to the existing objective aimed at "the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States" 21 . ...
The paper addresses the problem of intra-European services provided to professionals in the legal sector. Through a brief overview of the main services that are or may be offered in the internal market in this field, the author identifies the lack of interoperability as one of the most critical barriers currently preventing effective intra-community competition. The author wonders to what degree and under which rules of the treaties a European intervention could be justified and, therefore, what purposes could be pursued through European legislation. The author analyses the rail transport sector to assess if, and to what degree, existing barriers to entry could be reduced and innovation could be fostered by defining certain standards at a European level for the interoperability of IT systems in the field of law. In particular, the example of the rail sector is analyzed to determine the degree to which the solutions already in place for the “telematics applications for the passenger services subsystem” could be replicated in the context of the services addressed by the paper. In conclusion, the author suggests that addressing the issues of interoperability in the legal services sector could be a useful first step towards the digitalization of the internal market, as advocated by the Commission in its recent Communication on the digital single market.
... Nonetheless, in France, the United Kingdom, Ireland, Sweden and now in Spain they are, by law, obliged to cooperate in protecting intellectual property. 14 Individuals, as users of goods protected by intellectual property rights, tend to consume these goods in leisure activities. They have their own rights, such as the right to access culture, the right to freedom of expression and the right to freely receive and impart information (Art. ...
The digital age has transformed the leisure experiences and the way we access and consume cultural goods. Spain has been pointed to as a country with one of the highest levels of infringement of intellectual property rights on the Internet. Constant pressure has forced Spain to develop a new regulatory instrument that complies with both European directives and international obligations on protecting intellectual property rights against violations on the Internet. Thus, amidst great controversy, a law popularly known as the Sinde Law was adopted and came into effect in March 2012. The Sinde Law created a new procedure aimed at enhancing protection of intellectual property rights on the Internet. However, it is widely questioned for both legal aspects and for failing to recognise how Internet architecture can be used to avoid its consequences. It shows a disregard for digital leisure practices based on the freedom of creation, transformation and consumption that the Internet technology offers to users. The rights of the parties are in disequilibrium, the demand for digital leisure is not acknowledged and a burden is imposed on intermediaries. Critical analysis of this instrument for regulating intellectual property in the digital environment reveals it to be a formal legal solution that fails to provide a suitable response to either the complexity of the phenomenon or the different rights and interests involved. It is committed to defending just one of the parties at all costs and is unable to meet the challenge of regulating the consumption of digital content on the Internet. However, despite questions regarding its legality and effectiveness, the Sinde Law has one clear achievement: the US has recognised Spain's efforts in fighting digital piracy and has removed it from the Watch List where it had been listed since 2008.
... Similarly , though far more restricted in scope , ( the controversial ) Article L . 331 - 31 of the French Intellectual Property Code authorizes Hadopi to further define the content of the private copying exception , and how many copies users should be entitled to make ( Winn and Jondet 2009 ) . In conclusion , consumer information is an important tool , but it can also backfire and negatively influence the position of digital consumers . ...
The application of consumer law to digital content contracts encounters a number of obstacles. Some of these are rather typical for digital content markets, e.g., the legal consequences of the classification of digital content as “goods” or “services”, and more importantly, the absence of general benchmarks to evaluate the conformity of digital content. Other problems, such as the limited usefulness of consumer information and the position of underage consumers, are not as such reserved to digital consumers, but they are amplified in the digital content markets. Moreover, particular attention is paid to the complex relationship between copyright law and consumer law. This paper explores the extent to which consumer (contract) law is fit to address the problems faced by digital consumers wishing to enjoy the benefits of digital content and examines whether the on-going initiatives at national and European level are likely to provide relief. Finally, recommendations for improvement are put forward in cases where the analysis shows that the problems identified are not or are insufficiently solved by these initiatives.
... This might partly be explained by the fact that consumers and consumers groups are excluded from the possibility of bringing interoperability cases before the authority. As Winn and Jondet argued, this could prove to become an important shortcoming for the authority to protect consumers effectively, as technology companies might enter into a "tacit pact of non-aggression" (Winn and Jondet, 2009). There are also concerns about a possible bias towards the industry, since one of the other tasks of the authority is to discourage, and if need be, also punish unauthorized filesharing. ...
Purpose – The purpose of this paper is to make suggestions of how to improve the legal standing of consumers of digital content products. Design/methodology/approach – The analysis in this paper is based on desk research and comparative legal research, among others in the context of research performed in the context of a grant from the Netherlands Organization for Scientific Research (NWO) and, in parts, on a study performed for the European Commission by Loos et al. Findings – This paper demonstrates that the legal and technical complexities of digital content products and the resulting lack of a clear notion of which product characteristics are still reasonable and normal can result in uncertainty for consumers and businesses, or even a lower level of protection for digital content consumers, as compared to consumers of more conventional products. In order to improve the protection of digital content consumers, defaults for the main functionalities and characteristics of digital content products may be needed. The article describes possible routes to create such defaults and concludes with suggestions for the way forward. Originality/value – The article suggests a new approach to improving the legal standing of digital consumers, one that takes into account the situation of digital consumers as well as the need for flexibility and room for innovation for digital content businesses. It is based on extensive legal and comparative research into the present legal framework and develops a new approach of conceptualizing the legal obstacles that digital consumers can be confronted with.
While blockchain technology is best-known for cryptocurrencies, some chains also tout their ability to implement so-called "smart contracts." Ethereum, which bills itself as a "blockchain app platform," defines smart contracts as applications that run exactly as programmed without any possibility of downtime, censorship, fraud or third-party interference (http://www.ethereum.org).
The global integration of markets has both eroded the sovereignty of national governments in regulating their domestic economies and also given rise to distinctive new forms of regulation whose authority may be largely independent of any national government. Information and communication technologies (ICT) contribute to this trend by supporting the development of self-regulatory systems that are embedded in global ICT networks subject to strong network effects. Self-regulating ICT networks are one example of a new type of governance that is growing in importance as a result of globalization. This paper focuses on electronic commerce as a form of commercial activity mediated by ICT networks. In recent decades, national governments have used direct regulation, co-regulation and self-regulation in response to the growth of a global information infrastructure and electronic commerce. This paper considers three case studies: electronic signature laws as a form of direct regulation; the Single Euro Payment Area as a form of co-regulation, and the Payment Card Industry Data Security Standard as a form of self-regulation. These case studies suggest that electronic commerce law in global markets is based on a form of legal pluralism that is reminiscent in some ways of the traditional law merchant, and that if its role in regulating commercial transactions is more clearly recognized, that may aid national regulators in retaining their authority over their domestic markets.
The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of “prescriptive parallelism” according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment. Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity in Canada's copyright balance.
On April 2, 2007, Apple Inc. and EMI Music held a joint press conference in London that may be the harbinger of significant changes in the digital music arena. This press conference, whose attendees included EMI Group CEO Eric Nicoli and Apple CEO Steve Jobs, unfolded in an environment of significant technological and commercial changes in the music industry. The shift to the digital era has been a turbulent one for many players in the music industry, particularly as a result of the widespread distribution of unauthorized digital music files and the concurrent significant decline in record industry sales. The Apple-EMI agreement permits Apple to sell EMI Music's entire digital music catalog without digital rights management (DRM), which represents a significant shift from the previous policy of the major record companies. The Apple-EMI announcement should be considered in light of the recent developments in the broader digital music market. Although Apple has now agreed to distribute music from the EMI catalog without DRM, many believe the technological choices that Apple has made in the past surrounding DRM technology have laid the foundation for Apple's market dominance. Until now, Apple has facilitated its market dominance by deliberately limiting interoperability with non-Apple devices and non-Apple online music stores for iPod device and iTunes Music Store ("iTMS") users. Apple's bundling of the iPod and iTMS, which together form a network, has led to lawsuits against Apple alleging antitrust violations ranging from tying to attempted monopolization; some foreign jurisdictions have gone so far as to threaten to ban certain Apple technologies on consumer protection grounds. This Article lays out the topography of the Apple FairPlay controversy, looking closely at the business and market environment within which the iPod/iTMS network arose. This Article outlines some ways in which existing legal frameworks may be applied to the structures and behaviors associated with companies' development of technological and business innovations. It also analyzes the antitrust allegations against Apple and examines Apple's behavior and success in light of the network effects produced by the iPod/iTMS bundle.
Over the last ten years, legislators and courts worldwide have created a comprehensive legal framework surrounding Digital Rights Management (DRM). Starting from a description of the technologies underlying DRM, the article analyzes the implications of this legal framework in the U.S. and the European Union. Compared to other contributions in the field, the article stresses that the real innovation of DRM systems is not the protection of content by technology or some other means of protection alone. Rather, it is the intertwining of different means of protection (technology, contracts, technology licenses, anti-circumvention regulations and traditional copyright protection) that leads to the unique problems of DRM. Furthermore, the article analyzes several patent and know how license agreements that deal with DRM technologies in detail. The article demonstrates that, both in the U.S. and the European Union, this intertwining of different means of protection may lead to a new property right making copyright protection obsolete. It also highlights that there is a danger of over-protection: questions of fair use and droit d'auteur limitations to traditional copyright law have to be addressed. If competition is not able to solve this tension between the interests of content providers and the interests of users or the society at large - which seems doubtful at least - it is the law that must provide a solution. The article analyzes and compares the different solutions the U.S., the European Union and Germany have adopted concerning the relationship between copyright limitations and the protection by technology, contracts, and technology licenses. In particular, the article compares the solutions provided in 1201 of the U.S. Digital Millennium Copyright Act of 1998 and Art. 6 (4) of the European Copyright Directive of 2001.
Among the most important technical barriers to trade are the different standards, testing and certification measures for products and services. Efforts to co-ordinate these within Europe - including the EU’s increasing reliance on private sector standards bodies - are now underway. The EU’s single market has not only integrated national markets, but has also shaped trading principles at the international level. The EU has exported its trade principles to third country markets and European companies have gained strategic advantages in influencing standards both internally within Europe and externally at the international and transatlantic level. Firms should invest resources and actively participate in setting standards to protect and increase their competitive advantage.
Le M6diateur du cindma is an independent regulatory authority established in 1982 to oversee competition among cinemas in France. Le Mddiateur du cin6ma
Le M6diateur du cindma is an independent regulatory authority established in 1982
to oversee competition among cinemas in France. Le Mddiateur du cin6ma, Crdation et
Statuts, http://www.lemediateurducinema.fr/Mediateur/creation-et-status.htm (last visited
Oct. 18, 2009).
- Des Autoritt De Rtgulation
- Ann Mesures Techniques
AUTORITt DE RtGULATION DES MESURES TECHNIQUES, ANN. REP. 3 (2008).
With regard to modern French regulation of producer-distributor relations as part of commercial law, see James Q. Whitman, Consumerism Versus Producerism: A Study in Comparative Law, 117 YALE L
With regard to modern French regulation of producer-distributor relations as part of
commercial law, see James Q. Whitman, Consumerism Versus Producerism: A Study in
Comparative Law, 117 YALE L.J. 340, 364-65, 375 (2007).
The French government helpfully lists all the independent regulatory authorities now 108. AFNOR was formerly known as Association Fran~aise de Normalisation
The French government helpfully lists all the independent regulatory authorities now
108. AFNOR was formerly known as Association Fran~aise de Normalisation. Afnor
Groupe, http://www.afnor.org (last visited Oct. 18, 2009).