[ga] [fwd] [alac] WIPO2 comments and preliminary analysis -- DRAFT (from: roessler-mobile@does-not-exist.net)

[Thomas Roessler <roessler@does-not-exist.org>]

And another ALAC draft which will show up in our archives later
tonight.

Once again, if you feel 
-- 
Thomas Roessler                        http://log.does-not-exist.net/

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• From: Thomas Roessler <roessler-mobile@does-not-exist.net>
• Date: Tue, 22 Apr 2003 23:25:46 +0200
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Please find attached a draft for possible comments this committee
might wish to make on the WIPO 2 recommendations.  The draft was
prepared by your GNSO liaisons, i.e., Wendy and myself.

One thing we could try with this particular document is to put up
draft advice for public comments -- this would seem consistent with
our mission of reaching out further to the general community.

Comments or flames are, as usual, welcome.

Regards,
-- 
Thomas Roessler			<roessler-mobile@does-not-exist.org>

Title: Interim At-Large Advisory Committee Comments on WIPO2

(Interim) At-Large Advisory Committee Comments on the "WIPO2 recommendations" NN April 2003

DRAFT

Please click here to comment on this draft.
Please click here to read the comments submitted.

Comments will be most useful when received before May 5,
but can be submitted until May 10.

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Introduction

The Interim At-Large Advisory Committee thanks the Board for the opportunity to comment on the recommendations concerning the protection of the names and acronyms of intergovernmental organizations (IGOs) and of country names in the DNS, communicated to ICANN by the World Intellectual Property Organization (WIPO) on February 21, 2003.

The present comments focus on the ALAC's basic concerns with the subject matter of these recommendations, which appears to be out of scope of ICANN's limited mission. We therefore provide only a preliminary analysis of the recommendations proper, and would submit a more detailed analysis if and when WIPO's recommendations are subject to policy-development processes.

Subject Matter Concerns

ICANN's mission and core values have a clear focus on the organization's technical coordination function -- ICANN is clearly not intended to be an international law-making body. Rather, ICANN acts within a framework of national and international laws. It serves to provide architectural support for existing laws, not to make new laws.

Both ICANN and WIPO have followed this principle relatively successfully in the past, when establishing the UDRP as an inexpensive method to address the bad faith registration of others' trademarks as domain names, while deferring to the courts in situations in which several parties may have legitimate claims to a domain name. Underlying the UDRP is a body of law which is reasonably uniform, internationally.

The Committee is concerned to observe that WIPO's recommendations on the protection of the names of IGOs and countries seem to affect an area of law where no such uniformity can be found. Indeed, paragraphs 168 and 284 - 289 of the Report of the Second WIPO Internet Domain Name Process (The Recognition of Rights and the Use of Names in the Internet Domain Name System, September 3, 2001, "WIPO Report") suggest that the extension of special rights to these identifiers in the domain name system might effectively amount to the creation of new international law.

We believe that it would be inappropriate for ICANN to assume the role of an international legislator, and to try to establish such new law through its contracts and policy processes. For this reason, any policy-making processes which are based upon WIPO's recommendations in the areas of the protection of IGOs' and countries' names must pay close attention to staying within the confines of supporting existing, internationally uniform law.

In view of these new difficulties -- which are less evident in the trademark-centric review of the UDRP currently underway -- the Committee supports the GNSO Council's recommendation to separate the UDRP's review from discussions about implementation of WIPO's recommendations, and to address the additional WIPO requests in a separate policy-making process.

Annex: Preliminary Analysis of the Recommendations

We note that a more precise analysis will be necessary for a final assessment of the extent to which an implementation of WIPO's recommendations would indeed amount to the creation of new international law. We do not provide that analysis in this document, but will focus on a number of remarks on the merits of the individual recommendations.

We would ask in the first instance whether there is any real problem of mis-registration of names of IGOs and Countries, or whether perceived problems can be solved without new ICANN intervention, for example through use of the existing restricted .int TLD and countries' own ccTLDs. Where such a minimally disruptive alternative is available, that should be examined thoroughly before more extensive regulation is proposed.

Names and Acronyms of IGOs

• The committee notes that the WIPO Report disparages the .int top-level domain for its internal limitations and lack of public awareness. Rather than reshaping the rest of the domain name system to solve those deficiencies, the Committee proposes that the .int TLD should be re-examined as a dedicated TLD for IGOs.

• The language proposed by WIPO seems to apply to past and future registrations. The committe notes that, given that most IGOs' acronyms are short, there is a high likelihood that these might be used as good-faith acronyms for other entities, and may have been registered in good faith. The settled expectations of existing domain name holders should not be upset.

• Recommendation 1.A suggests a complaint system based on "registration or use" of a domain name which need to be of a certain "nature" in order to justify a complaint. This wording, and the subjectivity of the determination it entails, bears a considerable risk of extending policy-based dispute resolution mechanisms to areas touching upon the regulation of net content. We recommend that such disputes be left to regular courts.

• Recommendation 1.B's wording is rather comprehensive -- as presented, this recommendation would not be limited to IGOs' names and acronyms as registered according to Paris Convention art. 6ter, but may cover any names and acronyms covered by any international contract. The right to complain would be given to any IGO. This recommendation may be misread as an attempt to use ICANN policies as an instrument for the enforcement of arbitrary international contracts. The Committee suggests that ICANN should seek clarification of this recommendation from WIPO.

Country Names

• The language on country names once again relies upon criteria applied to the "registration or use" of domain names. The same concerns as above apply.

• Once again, it seems more appropriate to give each country control of its name (and any other character strings it chooses) in its unique ccTLD, not to grant it monopoly rights in strings across all TLDs.

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