Comment of Intellectual Property Constituency

["Metalitz, Steven" <met@xxxxxxx>]

COMMENT OF INTELLECTUAL PROPERTY CONSTITUENCY

February 21, 2013


        The Intellectual Property Constituency of ICANN's Generic Names 
Supporting Organization offers the following comments on the staff discussion 
paper entitled "Policy versus Implementation - Draft Framework."  See 
http://www.icann.org/en/news/public-comment/policy-implementation-31jan13-en.htm.

*       The paper is a good starting point for discussion of an issue critical 
to ICANN's future viability.  In the very brief time allotted for public 
comment we can offer only the following general observations.
*       ICANN's Policy Development Process is unwieldy, exceptionally slow, and 
impractical for all but the biggest, most overarching policy questions - i.e., 
those that can tolerate a multi-year process with multiple and highly 
repetitive opportunities for public input.   At the other end of the spectrum, 
some narrow implementation decisions on established policies are properly 
entrusted to ICANN staff with minimal public input. The problem is that there 
is a vast terrain in between where most of ICANN's critical work takes place.  
The status quo is that this terrain is populated with ad hoc, one-off or 
customized procedures, whose re-assembly or re-jiggering engenders enormous 
waste of efforts, resources (especially volunteer time and energy) and 
bandwidth that could better be applied to substance, not process.
*       The challenge is for ICANN and its SOs and SGs to fashion procedures 
that will provide for swifter public input and implementation-building, and for 
including the perspectives of subject matter experts, in a uniform and 
consistent manner on issues occupying this "middle terrain."  To do so, ICANN 
should consider:
o       Systematically cataloging the various customized methods that have been 
employed, with an eye toward discerning best practices (for example, at least 
four such distinct methods have been used with regard to the single issue of 
Rights Protection Mechanisms  seeking to implement the broad policy statements 
about new gTLDs respecting the rights of third parties);
o       Considering whether to establish for each set of overarching policies 
adopted through the PDP standing "Implementation Oversight Teams" of experts 
and informed community representatives to provide oversight of staff work on 
implementation, and thus to ensure that policies are not implemented in a 
manner that risks undermining the achievement of policy goals.
Arguments over "policy v. implementation" are not likely to prove fruitful.  
Instead ICANN and its constituent entities should be taking a pragmatic 
approach to find the best procedures - or the best set of procedures - for 
addressing issues and implementation in the middle terrain.  The staff paper is 
helpful in kicking off that conversation.  IPC looks forward to participating 
in it.
Respectfully submitted,
Steve Metalitz, IPC Vice President