Reply Comments of Intellectual Property Constituency
The Intellectual Property Constituency (IPC) offers the following reply comments concerning the staff discussion paper on "Policy versus Implementation - Draft Framework." 1. We believe the Google comment commendably focuses on the need to adhere rigorously to sound "Notice and comment" procedures when ICANN considers imposing new obligations on parties. These procedures can play an important role in the "middle terrain" that we identified in our initial comments. Most of ICANN's critical work makes place in this territory between developing broad policy formulations and determining narrow implementation steps to meet those formulations. We agree that ICANN must do a better job of providing meaningful opportunities to comment. In particular, it should acknowledge that a 21-day comment period is an inappropriately short deadline for considering and commenting on any significant matter, especially when comments are sought from stakeholder groups or constituencies that themselves consist of scores or hundreds of companies, associations, or other organizations. (This position is shared, at least as to the present comments, by Non-Commercial Stakeholder Group.) ICANN also must improve in promptly summarizing and evaluating comments and in explaining how they have or have not factored into the final decision. 2. We continue to think that developing standardized procedures for "middle terrain" decision-making should be a priority, beginning with a cataloging of the methods that have been used in the past. A similar process could be used to develop a standardized protocol for "Community Implementation Review Teams", as discussed in the Registry Stakeholder Group comment and supported by Valideus and Fairwinds. Our initial comment proposes establishing Standing Implementation Oversight Teams that could help staff properly carry out implementation over a longer period of time. Whatever they are called and however they are structured, we believe that implementation teams would be a useful tool for navigating the "middle terrain," and reiterate our position that they should consist of subject matter experts as well as informed community representatives. The usefulness of independent subject matter experts in any type of review is also acknowledged by Valideus, 3. Approaching this question pragmatically, as we believe it should be approached, so long as PDP remains a process that takes on average years to complete (and even longer when the time required for implementation is taken into account), the threshold for when a PDP should be deemed necessary before ICANN can act needs to be set quite high. Standards that equate the imposition of any obligation on any party with the "policy" threshold, as the Internet Commerce Association seems to do, and as the Registrar and Registry Stakeholder Groups also appear to do, are unrealistic. At the very least, as the Business Constituency points out, such obligations must be "material" to warrant consideration as triggering policy concerns. The current PDP framework should be reserved for overarching questions which do not require a rapid resolution. 4. The comments overwhelmingly focus on the need for better definition and enumeration of the situations in which a full PDP is deemed necessary, as well as those for which "notice and comment" or other processes may be adequate. IPC agrees, though we also caution the need for flexibility in light of the rapid and unanticipated changes ICANN must be able to address. Respectfully submitted, Steve Metalitz, Vice President On behalf of the GNSO Intellectual Property Constituency .