[ga] ALAC comment on WIPO2 recommendations
FYI: The attached advice from the ALAC on the "WIPO2 recommendations" has been formally submitted to Louis Touton last night. Regards, -- Thomas Roessler <roessler@does-not-exist.org>Title: Introduction ALAC Comments on WIPO 2 Recommendations to ICANNIntroductionThe 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 (see Annex I below), and would submit a more detailed analysis of the recommendations if and when WIPO's recommendations are subject to policy-development processes. Subject Matter ConcernsICANN'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. In the Committee’s view, two key features of the UDRP help to keep ICANN out of a lawmaking role. First, the UDRP addresses only situations where a complainant has rights under existing trademark laws. Decisions are specifically required to be made in accordance with the rules and principles of law that the panel finds applicable. The UDRP implements existing law which has been developed by well-established governmental law-making mechanisms. It does not create new trademark law. Second, parties dissatisfied with UDRP procedure or rulings can obtain judicial review in an appropriate court. This helps to ensure that the UDRP does not supersede applicable national law. The Committee is concerned to observe that WIPO's recommendations on the protection of the names of IGOs and countries seem to contemplate creation of rights in names without support in existing law. Indeed, WIPO's September 2001 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") recognizes that there is no basis in existing law for the special rights that the current recommendations would implement through forced cancellation or transfer of domain names. In the case of the WIPO recommendations on IGOs, paragraph 138 of the WIPO Report describes the limited nature of rights of IGOs in their names and abbreviations under Article 6ter of the Paris Convention. In paragraph 168, the WIPO Report recognizes that cancellation or transfer of domain names through an ICANN-mandated administrative procedure: would involve, at least in cases not involving the use of domain names as trademarks, the creation of new international law. It would represent an extension of the principles in Article 6ter of the Paris Convention, the Trademark Law Treaty and the TRIPS Agreement. While it is believed that such an extension is desirable, it would require a legitimate source in international law. It would be for States to determine the appropriate basis for such an extension of law, either in the form of a resolution of a competent treaty organ, a memorandum of understanding duly accepted by national authorities or a treaty. Despite these observations, WIPO has now transmitted recommendations calling for creation of a mandatory administrative procedure, disregarding existing law's limitations on rights in IGO names and abbreviations. The recommendations would also remove the current UDRP's assurance that existing legal principles will be observed. Instead, the recommendations replace the right to review in a national court applying national law with only a binding arbitration mechanism applying an "extension of principles" of established law, as described in the WIPO Report. In the case of the WIPO recommendations on country names, the WIPO Report is even more direct about the lack of basis in existing law. It states in paragraphs 286 and 287: 286 . . . Rather than expressing agreement or disagreement with this position [favoring exclusive rights in country names], we draw attention to the following fundamental characteristics of the debate, as they have emerged from the Second WIPO Process: Despite this clear recognition that there is no basis in current law for recognition exclusive rights to country names, the current WIPO recommendations propose amendment of the UDRP to implement those "rights." 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. The Committee also recommends to the Board that any separate policy-making process begin with a careful review of the legal basis for rights that are proposed to be created or implemented. The September 2001 WIPO Report strongly indicates that the current WIPO recommendations propose to implement “rights” that are not supported by existing law. The Board, in common with other ICANN bodies, has a responsibility to take care that ICANN adhere to its limited mission The Committee urges the Board to ensure that ICANN’s policy development proceed only where there is a solid legal foundation and a full understanding of the limits of existing legal consensus. Annex I: Preliminary Analysis of the RecommendationsWe 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 be possible without leading 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
Country Names
Annex II: Comments receivedThe ALAC solicited public comments on a draft version of the present advice. A single comment was submitted, by Alexander Svensson. In this comment, Mr. Svensson supports the draft statement, and points out: “ICANN already had to deal with the request by its Governmental Advisory Committee (GAC) to reserve country names under the .INFO top level domain. Interestingly, it seems that only a small group of governments has put the reserved domain names to use.” |