IP professionals can make a difference online
Claudio Digangi, Caroline Chicoine and Adam Lindquist Scoville, of the International Trademark Association, underline the importance of making your voices heard on domain name issues.
The Domain Name System (DNS) was developed to simplify Internet navigation by mapping easy-to-remember Internet names to numerical addresses. Following the opening of the Internet for commercial use in the 1990s, a new era of global communication and commerce emerged, creating a complex environment for the management of global DNS resources, such as domain names and Internet protocol addresses.
To address these challenges, the United States Department of Commerce held a public consultation and issued a DNS White Paper, or statement of policy, that began a process to privatise the management of these Internet resources. Inherent in the concept of privatisation was the notion that the private sector, including the intellectual property community, would participate in the co-ordination of resources for public benefit and have adequate representation within the organisation’s structure.
The DNS White Paper articulated several principles including: private, bottom-up co-ordination; and representation to guide the transition to the private sector-led model.
In 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) was incorporated and contracted with the Commerce Departmentto manage these resources and administer related DNS policy.
Regulation by the regulated, governance without laws
The private-sector governance model of ICANN is an ongoing experiment in whether a distributed community can successfully manage resources without the ability to legislate, and without clear lines of division, such as geography or population, to help determine the exact share of representation accorded to the various stakeholders. As a result, ICANN’s history has been fraught with periodic, distracting disputes over who can decide who sits on the ICANN board or on its alphabet soup of councils and committees.
Of the 21 current positions on ICANN’s board, the intellectual property and business community has significant input into the selection of only one of these positions, and that input is currently shared with the Internet service provider community and the non-commercial users community. As a result, ICANN has often gone years with little or no intellectual property expertise on its board. The intellectual property community must therefore continue to urge that the principles of representation and bottom-up co-ordination be more effectively integrated into ICANN’s existing processes and structures.
As a private entity, ICANN must also attempt to legislate fundamental rules for the Internet without the ability to pass laws or enforce treaties as governments or intergovernmental organisations do. Instead, ICANN’s ‘laws’ are its contracts—its agreements with registries, its conditions of accreditation for registrars, the policies those contracts incorporate by reference, and the contractual terms it requires those entities to impose on domain name registrants. With the thinness of private-sector representation in ICANN affairs, ICANN has a difficult time setting rules to prevent the abuse of intellectual property through abusive domain name registrations. Make no mistake, the private-sector management of the DNS is more nimble and innovative than governmental or intergovernmental control, but much is left to do for that model to succeed.
Affirmation of Commitments
In September 2009, ICANN and the Commerce Department moved from a Memorandum of Understanding (MOU) to an ‘Affirmation of Commitments’ (AoC) agreement. The AoC was intended to reaffirm ICANN’s continual obligation to manage the DNS in the publicinterest, while loosening somewhat its contractual ties to the US government and continuing a transition to autonomous privatesector management. The AoC requires periodic internal reviews of ICANN on issues such as accountability and transparency; preserving the security, stability and resiliency of the DNS; promoting competition, consumer trust and choice; and the maintenance of the ongoing policy of providing free public access to Whois ownership information for registered domain names. The results of these reviews are posted for public comment and then provided to the ICANN board for action.
The first review team—the Accountability and Transparency Review Team (ATRT)—completed its work and recommended improvements on such issues as ICANN board of directors governance, performance and composition; greater transparency on ICANN procedures; developing a review mechanism for board decisions; and updating public input processes and the policy development process. The ICANN board recently adopted a resolution to implement a plan for incorporating the review team’s recommendations into its processes.The Whois policy review continues, and the next major review to be conducted will be in the area of competition, consumer trust and consumer choice, scheduled to occur one year after new gTLD registries enter into operation. The intellectual property community should participate in these periodic reviews to help improve ICANN’s accountability to the public.
The introduction of new gTLDs
Despite the IP community’s express concerns over the lack of adequate representation in ICANN’s structure and processes, the ICANN board approved a set of policy recommendations in June 2008 for the potential introduction of thousands of new generic top-level domain names (gTLDs). The new gTLD programme is based on the issuance of a public tender process for new gTLDs, as defined by ICANN’s Applicant Guidebook for new gTLDs.
Following receipt of public comments on the draft Applicant Guidebook, the ICANN staff identified five overarching issues in connection with its proposal for new gTLDs: trademark protection; potential for malicious conduct; security and stability; root zone scaling; and TLD demand and economic analysis.
ICANN initiated various efforts to develop solutions to the overarching issues. While initially taking the positive step of forming an implementation recommendation team (IRT) of trademark experts and members of other constituencies to develop balanced solutions for trademark protection, the ICANN board and staff subsequently rejected or watered down several of the IRT proposals during the implementation process. In December 2010, ICANN’s government advisory committee (GAC), a group of government representatives with advisory capacity to ICANN, identified consumer and rights protection as one of 12 topics in need of further consideration before any new gTLDs should be introduced.
The ICANN board met with the GAC in March 2011 and again a few weeks later at ICANN’s public meeting in San Francisco, California. At the conclusion of the meeting, the ICANN board indicated that another version of the Applicant Guidebook will be published for public comment between April 15 and May 15, 2011, and indicated a draft working timeline to finalise the new gTLD process at its next public meeting in Singapore on June 20, 2011.
The intellectual property community should monitor and provide comments to ICANN on the development of the new gTLD programme and prepare for the potential introduction of new gTLDs. As part of the AoC review team, the competition, consumer trust and consumer choice review will be of particular interest to intellectual property owners, in that it will examine the extent to which the introduction or expansion of new gTLDs has promoted competition, consumer trust and consumer choice, as well as the effectiveness of the application and evaluation process, and the safeguards put in place to mitigate issues involved in the introduction or expansion of gTLDs.
Intellectual property organisations such as INTA will continue to represent the views and interests of the intellectual property community in Internet policy, and will continue to advocate that ICANN develop its management and decisionmaking capabilities to implement the structural changes necessary if a successful transition of Internet resource management to the private sector is ever to be achieved.
