Re: [alac] Re: [alac-admin] suggested WIPO edits

[Esther Dyson <edyson@xxxxxxxxxxxxx>]

Yes, very solid!  thanks!

Esther

At 03:01 PM 4/29/2003, Sebastian Ricciardi wrote:
> Works for me.
>
> Sebastian
> ----- Original Message -----
> From: <mailto:denisemichel@xxxxxxxxxxxxx>Denise Michel
> To: <mailto:alac-admin@xxxxxxxxx>ALAC members
> Sent: Tuesday, April 29, 2003 3:20 PM
> Subject: FW: [alac-admin] suggested WIPO edits
>
> Thanks, Wendy.  Looks good to me.  Are others comfortable soliciting 
> comments on this version?  Again, this would be a draft for 
> posting/comment -- subject to further ALAC revision -- *not* a final 
> version you need to approve.
>
> Let me know.
>
> Thanks.
> Denise
> -----Original Message-----
> From: Wendy Seltzer [mailto:wendy@xxxxxxxxxxx]
> Sent: Tuesday, April 29, 2003 11:05 AM
> To: Denise Michel
> Cc: ALAC members
> Subject: Re: [alac-admin] suggested WIPO edits
>
> Thanks Denise,
> I think your edits strengthen the piece overall.  I've made a few changes, 
> toning down the praise for UDRP (I still don't like it!) and clarifying a 
> few sentences. On the appendix, I'm of mixed minds.  Since, as you note, 
> the Board is already on track to have the GNSO initiate policy 
> development, I thought we might get a jump start on having our substantive 
> thoughts on the PDP considered at this time.  Others' thoughts?
>
> I've pasted suggested revised text below and attached a Word doc.
>
> --Wendy
>
> Introduction
> The Interim At-Large Advisory Committee <http://alac.icann.org/>  thanks 
> the Board for the opportunity to comment 
> <http://forum.icann.org/mail-archive/alac/msg00179.html>  on the 
> recommendations 
> <http://www.icann.org/correspondence/gurry-letter-to-cerf-lynn-21feb03.htm> 
> concerning the protection of the names and acronyms of intergovernmental 
> organizations 
> <http://www.icann.org/correspondence/gurry-letter-to-cerf-lynn-21feb03.htm#ANNEX1> 
> (IGOs) and of country names 
> <http://www.icann.org/correspondence/gurry-letter-to-cerf-lynn-21feb03.htm#ANNEX2> 
> 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 would submit a more detailed analysis of the 
> recommendations proper if and when WIPO's recommendations are subject to 
> policy-development processes. 
> <http://www.icann.org/general/archive-bylaws/bylaws-25feb03.htm#AnnexA>
>
>
>
> Subject Matter Concerns
> ICANN's mission and core values 
> <http://www.icann.org/general/bylaws.htm#I>  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 <http://www.icann.org/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 any 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 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 <http://wipo2.wipo.int/process2/report/html/report.html> , 
> September 3, 2001, "WIPO Report") recognizes that there is no basis in 
> existing law for the rights in domain names that the current 
> recommendations seek to have implemented 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 the "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:
> (i) The question of the appropriateness of the registration of country 
> names in the gTLDs is inextricably linked by some governments to what they 
> perceive to be their national sovereign interest.
>
> (ii) Protecting country names in the gTLDs would require or amount to the 
> creation of new law, a function traditionally reserved for States.
>
> 287. Both points lead us to conclude that we have reached the limits of 
> what can be achieved legitimately through consultation processes, such as 
> the WIPO Internet Domain Name Processes or any similar ICANN 
> processes.  In other words, we agree with those commentators who are of 
> the view that this particular question is more appropriately dealt with by 
> governments.
>
>
> 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: 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.
>
>
>
>
> At 10:34 -0700 4/28/03, Denise Michel wrote:
> > I think the ALAC has a powerful statement/position on the WIPO letter 
> > (thank you Thomas & Wendy), and an opportunity for taking a leadership 
> > position and directly effecting Board action on this issue.  Based on 
> > conversations and research, some changes are suggested (below -- 
> > additions in blue, deletes in red, notes w/ ***) that are intended to 
> > strengthen the ALAC's case and provide the Board specific and usable 
> > advice about how the policy-development process might proceed in a way 
> > that is compatible with the ALACâs concerns.  Please share your thoughts ASAP.
> >
> > Thanks.
> > Denise
>
>
> --
> --
> Wendy Seltzer -- wendy@xxxxxxxxxxx || wendy@xxxxxxx
> Staff Attorney, Electronic Frontier Foundation
> Fellow, Berkman Center for Internet & Society at Harvard Law School
> http://cyber.law.harvard.edu/seltzer.html



Esther Dyson                    Always make new mistakes!
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