Reply Comments of Intellectual Property Constituency

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

      The Intellectual Property Constituency (IPC) offers the following reply 
comments concerning the staff discussion paper on "Policy versus Implementation 
- Draft Framework."
      1.   We believe the Google comment commendably focuses on the need to 
adhere rigorously to sound "Notice and comment" procedures when ICANN considers 
imposing new obligations on parties.  These procedures can play an important 
role in the "middle terrain" that we identified in our initial comments. Most 
of ICANN's critical work makes place in this territory between developing broad 
policy formulations and determining narrow implementation steps to meet those 
formulations.  We agree that ICANN must do a better job of providing meaningful 
opportunities to comment. In particular, it should acknowledge that a 21-day 
comment period is an inappropriately short deadline for considering and 
commenting on any significant matter, especially when comments are sought from 
stakeholder groups or constituencies that themselves consist of scores or 
hundreds of companies, associations, or other organizations.  (This position is 
shared, at least as to the present comments, by Non-Commercial Stakeholder 
Group.)  ICANN also must improve in promptly summarizing and evaluating 
comments and in explaining how they have or have not factored into the final 
decision.
      2. We continue to think that developing standardized procedures for 
"middle terrain" decision-making should be a priority, beginning with a 
cataloging of the methods that have been used in the past.  A similar process 
could be used to develop a standardized protocol for "Community Implementation 
Review Teams", as discussed in the Registry Stakeholder Group comment and 
supported by Valideus and Fairwinds. Our initial comment proposes establishing 
Standing Implementation Oversight Teams that could help staff properly carry 
out implementation over a longer period of time. Whatever they are called and 
however they are structured, we believe that implementation teams would be a 
useful tool for navigating the "middle terrain," and reiterate our position 
that they should consist of subject matter experts as well as informed 
community representatives.  The usefulness of independent subject matter 
experts in any type of review is also acknowledged by Valideus,

      3.  Approaching this question pragmatically, as we believe it should be 
approached, so long as PDP remains a process that takes on average years to 
complete (and even longer when the time required for implementation is taken 
into account), the threshold for when a PDP should be deemed necessary before 
ICANN can act needs to be set quite high.  Standards that equate the imposition 
of any obligation on any party with the "policy" threshold, as the Internet 
Commerce Association seems to do, and as the Registrar and Registry Stakeholder 
Groups also appear to do, are unrealistic.  At the very least, as the Business 
Constituency points out, such obligations must be "material" to warrant 
consideration as triggering policy concerns.  The current PDP framework should 
be reserved for overarching questions which do not require a rapid resolution.
      4.  The comments overwhelmingly focus on the need for better definition 
and enumeration of the situations in which a full PDP is deemed necessary, as 
well as those for which "notice and comment" or other processes may be 
adequate.  IPC agrees, though we also caution the need for flexibility in light 
of the rapid and unanticipated changes ICANN must be able to address.
      Respectfully submitted,
      Steve Metalitz, Vice President
      On behalf of the GNSO Intellectual Property Constituency

      .