Ground Rules for New TLDs: Copyright Industry Perspective
builds on the views expressed by CCDN in its April 13 public comments on the report
of Working Group C. It should also be read in connection with the IPC submission,
http://ipc.songbird.com/IPC-Resp-final.htm, which CCDN supports.
asked for expressions of interest from entities that would like to manage new TLDs,
and responses are starting to come in. Rather than prolonging debate on the
number or type of new TLDs, it is time to focus attention on the ground rules that
must be incorporated in the operating principles of every new TLD, if these new domain
spaces are to be rolled out in a manner, as recommended by the Names Council on April
19, that minimizes the threat of their misuse to infringe intellectual property rights
or other unacceptable behavior.
The goal is to define the issues which
must be addressed in proposals made to ICANN by those who wish to establish and manage
new TLDs. While there undoubtedly are many such issues, several are particularly
relevant to achieving the "infringement minimization" criterion identified by the
Some of the ground rules that are needed in this sphere are
by now well established and familiar from the existing gTLDs. The ICANN staff,
in soliciting proposals, and the ICANN Board of Directors, in evaluating them and
making a policy decision on new TLDs, should insist that all proposals address the
(a) Registrant contact data
registrants of Second Level Domains (SLDs) within the new TLDs should be required
to provide complete and accurate contact data, and to keep it current. Failure
to fulfill this obligation should result in termination or cancellation of the SLD.
(b) Whois (registrant contact data accessibility)
Managers of each new TLD must provide free, real-time access, via the World Wide
Web, to a current database of contact data on all registrants in the TLD. This
data should be fully searchable and should be available to the public without substantial
restrictions on use (other than those restrictions required to protect the integrity
and availability of the database or its exploitation for purposes such as inappropriate
mass commercial solicitations). The new TLDs must also participate in
cross-registry Whois services that facilitate access to registrant contact data in
as many TLDs as possible.
[c] Effective dispute resolution
An effective dispute resolution policy for the new TLD must be in place
before it begins taking any registrations. CCDN looks forward to the evaluation
of the Uniform Dispute Resolution Policy now operative for all gTLDs. The dispute
resolution policy for a new TLD need not necessarily be the same one that has been
adopted for the existing gTLDs, but however it is structured it should be capable
of delivering resolution of disputes over the registration and use of domain names
swiftly, in a transparent manner, at low cost, and as efficiently as possible.
There must be an effective mechanism whereby ICANN can verify
that each new TLD imposes and enforces these ground rules, including a mechanism
for receiving and resolving complaints that a specific TLD manager is not doing so.
The four preceding ground rules are applicable to all proposed new TLDs, regardless
of whether they are open, chartered, non-commercial, or personal. The fifth
ground rule should also be mandatory, although, as the Names Council noted, the specific
mechanism for its implementation may vary depending upon the species of TLD involved.
(e) Mechanism for the protection of trademarks
See the discussion of
this issue in the responses submitted by the DNSO Intellectual Property Constituency.
Those TLD proposals that contemplate a chartered domain, open only to registrants
engaged in a certain kind of business or other activity, or meeting other stated
qualifications, must also address a critical sixth ground rule:
Charter Specification and Compliance
Any proposal for a chartered TLD must include
clear and specific rules about who is and is not entitled to register Second Level
Domains in that space, and about what activities are and are not appropriate or acceptable
on the corresponding sites. Efficient and speedy mechanisms for deciding who
complies with the charter's requirements must be included. Finally, a mechanism
must be provided for the expeditious cancellation of any Second Level Domain which
is used in violation of the charter's restrictions.
For the purposes of
this paper, CCDN considers a "noncommercial" or "personal" TLD as a particular species
of chartered TLD. However, proposals for such TLDs may require special
scrutiny. Ensuring compliance with a charter requirement that a Second Level
Domain in such a TLD may be registered and used only for "noncommercial" or "personal"
purposes will be extremely difficult, and perhaps impossible, to achieve.
(Indeed, the most recent attempt to impose a similar restriction - the Acceptable
Use Policy promulgated by the National Science Foundation in the early 1990's - was
a short-lived failure, even though the Internet activity it sought to regulate was
much smaller, in volume and in complexity, than what is encountered today.)
Perhaps more significantly, copyright piracy carried out in a "noncommercial"
or "personal" venue on the Internet can be just as destructive of intellectual property
rights as piracy that takes place in a more conventionally commercial manner.
Indeed, a pirate who makes available unauthorized copies or performances of copyrighted
materials on a website may plausibly claim that her activity is "noncommercial" (or
even "personal") even though it inflicts damage that is indistinguishable from that
caused by a commercial pirate. Accordingly, since all the ground rules summarized
in this paper are aimed at achieving the Names Council's stated goal of minimizing
intellectual property infringements in any new TLDs, there is no justification for
omitting or relaxing any of these requirements simply because a proposed chartered
TLD is described as "noncommercial" or "personal" in nature.
Submitted on 7/10/00
by Steve Metalitz, counsel to the Copyright Coalition on Domain Names
American Film Marketing Association
American Society of Composers,
Authors and Publishers
Association of American Publishers
Business Software Alliance
Interactive Digital Software Association
Picture Association of America
National Music Publishers' Association
Industry Association of America
Software and Information Industry Association