Page 30 of the Final Report Part A:
http://gnso.icann.org/drafts/pdp-dec05-fr-a-18jun07.pdf
states that "Three main elements have emerged in relation to string criteria
- "string" criteria, "applicant" criteria, and "process" criteria.
Recommendation 1 pertains to process criteria:
"The evaluation and selection procedure for new gTLD registries should
respect the principles of fairness, transparency and non-discrimination."
This recommendation cites relevant sections of ICANN's mission and core
values in support of this committee recommendation.
The work of the committee produced Recommendations 2, 3, 4, 5 & 6 that
pertain to "string" criteria, not "process" criteria.
I believe the NCUC is confusing Recommendation 3 to be about "process"
criteria when this was not the original intent or purpose for this committee
recommendation. While it is tempting to word smith and outright challenge
high level recommendations at this late stage dating back to December 2005,
I believe it is important for all participants to be very familiar with the
comprehensive documents produced by staff that underlie the current status
of the committee recommendations and implementation guidelines (notably
Final Reports A & B).
Recommendation 1 pertains to "process" criteria. I do not believe we should
be debating at this stage that the origin of Recommendation 3 pertains to
"string" criteria. While I do not want to speak for Liz, I can agree that
morphing Rec 3 into "process" criteria adds subjectivity that was not
originally intended by the committee from this recommendation. In this
light, I see Liz's comment as facilitating the discussion at this late stage
based upon comprehensive documentation produced by ICANN staff of the
committee's work.
Ray Fassett
-----Original Message-----
From: owner-gtld-council@xxxxxxxxxxxxxx
[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin Gross
Sent: Sunday, July 01, 2007 12:05 AM
To: gtld-council@xxxxxxxxxxxxxx
Cc: Milton Mueller
Subject: [Fwd: RE: [gtld-council] modifications to new gTLD recommendations
#3 and 6]
-------- Original Message --------
Subject: RE: [gtld-council] modifications to new gTLD recommendations
#3 and 6
Date: Sat, 30 Jun 2007 23:16:04 -0400
From: Milton L Mueller <mueller@xxxxxxx>
To: <robin@xxxxxxxxxxxxx>, "Liz Williams" <liz.williams@xxxxxxxxx>
CC: Mawaki <kichango@xxxxxxxxx>, Norbert Klein <nhklein@xxxxxxx>
References:
<046F43A8D79C794FA4733814869CDF0701E637AF@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx>
<9C1CACD2-472C-4B62-837B-D87D5F1EFF33@xxxxxxxxx>
<4686D958.7050906@xxxxxxxxxxxxx>
Can you forward to the Council list, please?
I am not sure what Liz is driving at by saying that "ICANN itself would
become part of the objection process." Does she mean that ICANN would be
able to initiate objections to TLD proposals? If so, that is clearly not
what was intended nor is it implied by the phrase.
Does she mean that people could object to the outcome of an ICANN gTLD
string selection process because it violated prior rights? If so, this can
and probably will happen regardless of whether Rec. 3 includes the phrase
"string selection process" or not. There will always be debate about whether
the actual outcome of the process has met the requirements and constraints
of the policy. E.g., a trademark owner might complain that their prior
rights in a string were not respected by the process and take ICANN to
court.
We need that amendment because, as we noted in San Juan, it is impossible
for a "string" by itself to violate free expression rights. It is only the
_rejection_ of a string that can do so. If an approval or evaluation process
rejects strings that people should have a right to use, it raises free
expression concerns. Therefore, to accommodate free expression guarantees,
one must refer to "string selection process" or something like that. There
was talk in San Juan of substituting the word "approval" for "selection."
That might make it clearer. We might also say "the rejection of a string".
Liz is flat wrong that greater "subjectivity" is introduced. The level of
subjectivity is the same with or without the amendment. A "string" does not
jump out and say, "I violate trademark rights!" Whether it does or not must
be judged and interpreted. Likewise, whether or not a decision to reject a
string violates free expression rights requires the same kinds of judgments.
Inserting that term does not change the level of subjectivity in the
slightest.
Finally, it is unfortunate that this needs to be said, but we do need to
insist that under the bylaws, policy in the GNSO is made by representatives
of constituencies, not by staff. Staff is a facilitator and administrator,
not a stakeholder. When constituencies agree--as they seem to have done on
this phrase -- it is highly inappropriate for staff to insert their own
personal opinion.
-----Original Message-----
From: Robin Gross [mailto:robin@xxxxxxxxxxxxx]
Sent: Saturday, June 30, 2007 6:30 PM
To: Milton L Mueller; Liz Williams
Cc: Mawaki; Norbert Klein
Subject: Re: [gtld-council] modifications to new gTLD recommendations #3 and
6
Liz,
ICANN staff should not be urging council members to reject NCUC
proposals - at least not if you want to claim "neutrality" with a
straight face.
Robin
Liz Williams wrote:
Colleagues
I would urge you to reconsider carefully the second part of this
recommendation. Including the second part means that ICANN itself
would become part of the objection process. I am not sure that this
is what you intend or how that would be measured. Revising the
recommendation on the basis of the recommendation below would cause
some significant subjectivity being introduced into the process about
"infringement and unfairness". Of course ICANN must, in the
selection process, operate in accordance with its bylaws and mission
and core values.
We have spent a great deal of time on ensuring that we have a pre-
published, objective process that is about the applicant and the string.
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
On 29 Jun 2007, at 15:59, Gomes, Chuck wrote:
Regarding Recommendation 3, it seems to me that there are two key
elements: 1) strings that may infringe existing legal rights and 2) the
selection process that may infringe existing legal rights. If I am
correct, then we need to include both in this recommendation and I
think
we started working in that direction yesterday.
Chuck Gomes
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-----Original Message-----
From: owner-gtld-council@xxxxxxxxxxxxxx
[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin Gross
Sent: Thursday, June 28, 2007 2:14 PM
To: gtld-council@xxxxxxxxxxxxxx
Subject: [gtld-council] modifications to new gTLD
recommendations #3 and 6
NCUC proposes the following modifications to new gTLD
recommendations #3 and 6:
Rec. 3:
The process for selecting strings must not infringe existing
legal rights that are enforceable under internationally
recognized principles of law or the applicant's national law.
Examples of these legal rights that are internationally
recognized include, but are not limited to, rights defined in
the Paris Convention for the Protection of Industrial
Property (in particular trademark rights), the Universal
Declaration of Human Rights and the International Covenant on
Civil and Political Rights (in particular freedom of
expression rights).
Rec 6:
Strings must not be contrary to legal norms that are
enforceable under generally accepted and internationally
recognized principles of law.
Taking into account the aforementioned limitations, no
application shall be rejected solely because the applicant or
string is associated with an unpopular or controversial point of view.
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