Comment ccNSO11: Comments from Intellectual Property Constituency

[Steve Metalitz <metalitz@xxxxxxxx>]

COMMENTS OF INTELLECTUAL PROPERTY CONSTITUENCY

The Intellectual Property Constituency appreciates this opportunity to 
comment on the "Response to Comments Received on ERC's ccNSO 
Recommendations," which was posted by the Evolution and Reform Committee 
(ERC) on May 29.

Our comments focus on the Annex to the ERC document, entitled "Framework 
for the Scope of the ccNSO." The next to last paragraph of this document 
states that policies on subjects such as "registrations, transfers, 
deletions, Whois, [and] dispute resolution" would not be developed 
within the proposed ccNSO, but rather would be set exclusively by the 
"Local Internet Community, including local government, and/or ccTLD 
Manager according to local structure."

The operative significance of the Annex is unclear. It has been 
suggested to us that it is intended simply to provide a framework within 
which questions of the scope of activities of the ccNSO would be 
discussed, and that it is not intended to definitively determine that 
scope. On the other hand, the proposal by the ERC to annex this document 
to the by-laws would appear to give it constitutional status, and would 
make it more difficult to initiate any effort to develop Whois or 
dispute resolution policies or guidelines for ccTLDs within the ICANN 
framework.

Whether the Annex is intended simply to illustrate a method of 
determining the scope of the ccNSO's activities or to be a binding 
limitation on that scope, we do not agree with the conclusion it 
expresses: that issues regarding the collection and accessibility of 
registrant contact data in ccTLDs, or regarding extrajudicial mechanisms 
for resolving disputes between trademark owners and domain name 
registrants in ccTLDs, are out of bounds for policy development within 
the proposed ccNSO (and by extension within ICANN as a whole). The 
resolution of these issues within the ccTLD environment has virtually as 
much impact on intellectual property owners, consumers, law enforcement 
officials, and members of the public as it does within the gTLD 
environment. These issues also impact on the security and stability of 
the domain name system, whether the Top Level Domains in question 
consist of two characters or more than two.

Of course the Whois and dispute resolution policies applicable to the 
ccTLDs should not necessarily be the same as for gTLDs; nor even should 
those policies necessarily be uniform across the entire diverse spectrum 
of ccTLDs. Furthermore, the ccNSO structure and governance proposal 
provides ample safeguards against the imposition of policies in this or 
any other area that are contrary to the consensus views of ccTLDs. 
However, to exclude these issues from ccTLD-related policy development 
within ICANN, whether categorically or as an "example" of the operation 
of a "framework," would, we submit, be a serious error, and would 
detract from the ongoing viability of ICANN as a forum for discussion 
and resolution of the key issues affecting the stability and security of 
the domain name system.

Thank you for considering the IPC's views.

Respectfuly submitted,

Steve Metalitz, Executive Vice President, on behalf of IPC