[gtld-council] RE: PDP Dec 05: Updated Work Program

[Robin Gross <robin@xxxxxxxxxxxxx>]

Liz,

I'm troubled by the continued lack of attention given to the free 
expression concerns in this policy development process.    This policy 
still expands trademark rights beyond what trademark law grants and it 
attempts to regulate non-commercial speech as if it were commercial 
speech.  Trademark rules do regulate non-commercial speech, so the 
prominence given to that special interest in this policy is not in 
conformity with law.   This policy not only violates international legal 
standards about intellectual property rights, it would also not 
withstand a Free Expression challenge in the US and many other national 
jurisdictions.   We need to hear from legal experts about how this 
policy deviates from international law before we go any further.
A few thoughts on the last draft recommendations:

Recommendation #3 still privileges trademark holders against 
non-commercial speakers by giving them an advantage as a "prior third 
party".   Speakers who want to be critical of a trademark should have 
just as much right and opportunity as those who have registered the words.
Recommendation #6 continues to impose 'polite dinner manners' on 
everyone since the strings can't be contrary to morality or public 
order.  It will be impossible for controversial ideas to become included 
in new gtlds under #6.   Its deeply troubling that the recommendation 
makes no mention of the fundamental freedom of expression guarantees in 
article 19 of UDHR, while it cites the UDHR in order to impose 
politeness on everyone.   So no new gtlds can be offensive, under 
ICANN's interpretation of UDHR.
Under Rec. #8, any opposition from any sector of the world would prevent 
the approval of the domain.  How is this going to open-up the process?   
Why should everyone in the world have to agree before there can be a new 
domain?   This is also where an objection from the catholic church can 
prevent a domain from being issued.   This is a policy of censorship.
Rec. #9 does not explain how public policy and morality issues can be 
translated into objective and measurable criteria that is known in 
advance.   Who's public policy goals?   Who's standard of morality?
Rec. #11 is where ICANN staff will be charged with the first cut at 
deciding who is the appropriate sponsor for an idea and which ideas are 
contrary to public policy and morality.    What criteria will the staff 
use in evaluating applications for .god?
These recommendations remain entirely unworkable from a practical 
standpoint.   And they will create an enormous workload and legal 
liability for ICANN for its determinations.
These recommendations have to be reformed, or we will impose a terrible 
policy of censorship on the entire world.
At the very least, we need to receive input from qualified outside legal 
experts on many of the important issues that are being swept under the 
rug.   This policy is too important to rush it through before most of 
the world even knows it is in development.
Robin




-------- Original Message --------
Subject:     [gtld-council] PDP Dec 05: Updated Work Program
Date:     Sat, 12 May 2007 09:31:09 +0200
From:     Liz Williams <liz.williams@xxxxxxxxx>
To:     gtld-council@xxxxxxxxxxxxxx



Dear Colleagues

The work of the GNSO Committee on new TLDs has been continuing since the 
Lisbon meeting most notably with redrafting the Final Report to include 
all the Lisbon inputs; completing the work of the RN and PRO WGs and 
maintaining the internal implementation planning that ICANN staff have 
been involved with for many months.  Particular work has been done on 
dispute resolution models to deal with contention between applicants and 
to developing objection resolution models where there are objections to 
an application or applicant.
In terms of the next steps for the work of the Committee, an updated 
work plan is set out below.
1.  Please read the attached simplified document which sets out the 
Principles, proposed Recommendations and Implementation Guidelines and 
prepare for each of your Constituencies an "impact statement" which 
addresses the following guidelines.  Note that it includes reference to 
the GAC Principles as well as to ICANN's Mission and Core Values.
2.  Refer to Section 11 of the GNSO Policy Development Bylaws which 
talks about the impact on constituencies of the proposed policy 
recommendations 
(http://www.icann.org/general/archive-bylaws/bylaws-28feb06.htm#AnnexA).  
The Council Report to the Board needs to include the following: 
/The Staff Manager will be present at the final meeting of the Council, 
and will have five (5) calendar days after the meeting to incorporate 
the views of the Council into a report to be submitted to the Board (the 
"Board Report"). The Board Report must contain at least the following:/
/a. A clear statement of any Supermajority Vote recommendation of the 
Council;/
/b. If a Supermajority Vote was not reached, a clear statement of all 
positions held by Council members. Each statement should clearly 
indicate (i) the reasons underlying each position and (ii) the 
constituency(ies) that held the position;/
/c. An analysis of how the issue would affect each constituency, 
including any financial impact on the constituency;/
/d. An analysis of the period of time that would likely be necessary to 
implement the policy;/
/e. The advice of any outside advisors relied upon, which should be 
accompanied by a detailed statement of the advisor's (i) qualifications 
and relevant experience; and (ii) potential conflicts of interest;/
/f. The Final Report submitted to the Council; and/

/g. A copy of the minutes of the Council deliberation on the policy 
issue, including the all opinions expressed during such deliberation, 
accompanied by a description of who expressed such opinions./

3.  A meeting of the GNSO Committee is proposed for 7 June to review the 
proposed recommendations  for the Final  Report.
4.  The Final Report to the Council will be completed after the San Juan 
meeting to enable the Chairs of the Reserved Names Working Group and the 
Protecting the Rights of Others Working Group to present their Final 
Reports to the Committee on Saturday 23 June.
5.  Preparations are underway for the 24 June GNSO GAC session at which 
we will have another information exchange with GAC members about how 
their principles have been reflected in Committee's output.
6. Schedule a Council teleconference after the San Juan meeting to 
formally vote on the Recommendations in the Final Report.
Of course, any questions or clarifications, please ask.

Kind regards.

Liz
.....................................................

Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob