The Requirement of Rights Protections Mechanisms

[Avri Doria <avri@xxxxxx>]

To whomever may read comments and pay attention to them:

One of the myths circulating is that the GNSO never made a decision  
concerning whether RPMs should be required during the new GTLD process.
This is  false.

The GNSO most definitely did make a decision.  After the PRO WG came  
to the conclusion that there was no set of RPMs that fits all  
circumstances, the Committee of the Whole on new GTLDs make a very  
specific decision that there would not be a required RPM, but rather  
that a set of Best Case examples would be sent out with the RFP with  
the recommendation that applicants consider including a RPM and  
consider whether one of the examples was appropriate for their  
application.
In defining a required RPM, the IRT went against the policy decisions  
of the GNSO Council as approved by the Board.
In implementing a point advantage for those who offered an RPM, the  
Staff went against the policy decisions of the GNSO Council as  
approved by the Board because giving an advantage is a back door way  
to making something a requirement.
In implementing any part of the IRT recommendation or a derivative as  
a requirement, the Staff, and the Board if it approved, would be  
contravening the policy as developed in the bottom-up process,.
And in offering the GNSO Council an ultimatum of - either come up with  
a better solution or we will go with the staff solution - the Board  
has further encouraged an end run around the policy making process.   
The Board could have required an issues report on the question, and  
could have pressured the GNSO carry out a high speed PDP, i.e. one  
strictly according to the Bylaw time requirements, without further  
delaying the already continually delayed Final Application Guide.  
Instead, as with the IRT, they once again choose to go outside the  
process.  But at least they asked the GNSO council, and for that we  
should be grateful.
Personally I am in favor of recommendations for a variety of voluntary  
RPM options, and I think the book "A Perfect Sunrise' is a fine  
ancillary to the Final Applicant guidebook.
While we are talking about the protection of rights and Recommendation  
3 - which requires the protection of rights without mandating that  
there is only one way to do it, I would like to quote from the text:
> Recommendation 3
>
> Strings must not infringe the existing legal rights of others that  
> are recognized or enforceable under generally accepted and  
> internationally recognized principles of 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 Industry Property (in particular  
> trademark rights), the Universal Declaration of Human Rights (UDHR)  
> and the International Covenant on Civil and Political Rights (ICCPR)  
> (in particular freedom of expression rights).
As is obvious from the second paragraph, many more rights then just  
the rights of IP holders were to be free of infringement.  And while  
we have filled thousands of hours with discussion on the protection of  
IP rights, I have heard very few mainstream discussions on the other  
rights of others.  What does the DAG say about Human Rights as well as  
Civil and Political Rights?  What steps are being taken to protect  
these rights?  If we are going to devote so much time to the rights of  
IP owners, shouldn't we spend at least some fragment of our time as a  
public interest corporation talking about the human civil and  
political rights of applicants and registrants?
I suggest to the GNSO Council that whatever recommendation it makes  
regarding the questions asked by the Board, one thing be certain - any  
RPM must be optional and voluntary.  Anything else will constitute a  
negation of the policy process.  I also recommend that we leave  
"enforceable under generally accepted and internationally recognized  
principles of law" to the applicable laws in each locality.  Finally I  
recommend to the implementation team that they spend some effort on  
making sure the new procedures protect all rights at least as  
stringently as they protect commercial IP rights.
a.


The following is an excerpt from relevant materials showing the result  
of the decision to not mandate any particular RPM, or even that an RPM  
be included at all.  Further evidence can be gained from the recording  
of the GNSO Committee of the Whole Meetings of October and November of  
2007.

> During the new gTLD process, the GNSO was unable to reach a  
> consensus requiring any new Right Protection Mechanisms (RPM). A  
> working group, the Protecting the Rights of Others (PRO) had been  
> formed, and though the PRO working group did recommend a possible  
> range of RPMs, neither the PRO WG nor the GNSO committee of the  
> whole was able to reach consensus mandating that any RPMs be  
> required for new gTLDs.  Rather,  the GNSO suggested that RPMs be  
> considered by the applicants and endorsed an effort by the  
> Intellectual Property Constituency to create a set of possible RPM  
> that would be included as part of the application package.
> In final report it states[1]:
>
> v) The Committee also benefited from the work of the Protecting the  
> Rights of Others Working Group (PRO-WG). The PRO-WG presented its  
> Final Report to the Committee at the June 2007 San Juan meeting. The  
> Committee agreed that the Working Group could develop some reference  
> implementation guidelines on rights protection mechanisms that may  
> inform potential new TLD applicants during the application process.  
> A small ad-hoc group of interested volunteers are preparing those  
> materials for consideration by the Council by mid-October 2007.
> In response to which the IPC and others produced the very helpful  
> guide: ?The Perfect Sunrise - A short guide for new gTLD applicants  
> by the Intellectual Property Constituency. It is interesting to  
> quote from the preface to this guide[2]:
> However, there is no consensus on what constitutes ?Best Practice?  
> when it comes to measures to protect intellectual property and the  
> rights of others during the launch phase of a new gTLD. (The Uniform  
> Dispute Resolution Policy is a universal curative measure that  
> enables rights owners to tackle bad faith gTLD registration post- 
> launch). As one of ICANN?s goals is to encourage diversity of both  
> registry services and service providers, a wide variety of gTLD  
> registry models will develop. In 2007, the Generic Names Supporting  
> Organization?s ?Protecting the Rights of Others? Working Group  
> concluded in a 114 page report for ICANN that Best Practice  
> guidelines that would be suitable for one registry model may not be  
> appropriate for another. It therefore declined to recommend ?an  
> approved model Rights Protection Mechanism?.
> Despite this, it has been the experience of members of both the  
> Intellectual Property Constituency of ICANN and MARQUES that  
> potential registry operators welcome impartial guidance on measures  
> to protect the rights of others. In both the 2000 and 2004 new gTLD  
> rounds, applicants requested meetings with the IPC to discuss this  
> subject. Individual members of the two organisations have also been  
> consulted by registry operators and government agencies with  
> responsibility for TLD projects.
> Therefore the IPC decided to produce this guide to assist potential  
> gTLD applicants and possibly some ccTLD registry operators to  
> identify and assess pre-launch Rights Protection Mechanisms (RPM).
> So even the Intellectual Property Constituency admitted in public  
> documents that there was no consensus for mandating rights  
> Protection Mechanisms.  To require them now, would run counter to  
> that lack of consensus.
>
> [1] http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm
>
> [2] http://www.icann.org/en/topics/new-gtlds/perfect-sunrise-jun08-en.pdf