EC-POP Meeting with ICANN Board Members
Geert Glas: . . . back and say, no no no, I'm not phoning you about domain names. And he said, "Sure, because this is the number that we only use on our domain name applications."[??] So I don't want to go as far as saying you should have a specific phone number, but we need some type of information.
The third calls, which is dear to our heart, it's a speedy and inexpensive dispute resolution process. And I . . . Take my work for it, because I'm a lawyer. So this is not necessarily beneficial to me personally. A lot of people are paying way too much money to settle disputes which should be able to be settled quickly and inexpensively. And in the end, the bills that are paid to the lawyers, while they'll find their way back into the general overhead and they'll find their way back into the price which consumers are paying. So we think this is bad. It's bad for those cases which should be able to be dealt with quickly, inexpensively, when, for example, it's a clear case of bad faith, when it's a clear case of cyber squatting, etc. We're not advocating that you should have this _________ solution system obligatory. For issues whereby you may have 2 people who both bona fide they have a certain name and then one of them gets the domain name first, . . . Because clearly in our view, we lack, at this moment, sufficient international standards for an administrative panel to deal with that. But we advocate that for clear-cut cases, there should be a speedy and inexpensive way to deal with it. And we also advocate this to be lopsided. I think an English speaking word you spell that with a p. Brussels is the capital of bad English, so I can do this.
It should not be lopsided in the sense that we are not advocating a system whereby anybody who can flash a trademark automatically wins. And to even be further, INTA has gone on notice as saying we are not supportive of every and all action that has been brought before and assigned until today. And there are clearly cases out there where trademark owners have thought they have rights, and you can question about that. So we don't want this to be a lopsided process.
Last issue. ICANN DNSO. It is our view that the trademark communities should have a significant voice in domain name policy. And I use significant . . . You don't see on that sheet, should have a majority, should have 51%. I also said it because Amadeu once told me that anybody who says 51% should not be heard. So I want to be heard by Amadeu.
But I say a significant voice, because we do recognize there are other constituencies there. But clearly, when it comes to domain name policy, we feel that trademark owners should have a significant voice.
We think that . . . We're certain that trademark concerns should be understood by the ICANN board. And in that respect, we beg to differ a little bit in the sense that people have told us yes, but there are . . . While there may not be a specific trademark person on the ICANN board, there are companies there who have trademarks. And clearly, with a company like Dun & Bradstreet has the Dun & Bradstreet trademark. But we beg to differ that it's not because they're companies represented on ICANN who happen to have trademarked that. That automatically means that the ICANN board, as such, will understand the trademark issues. So we think that's a distinction.
Somebody asked me, "You don't mean to say that there should be a lawyer on the ICANN board?" I say, "Well not necessarily." So if that's a concern, I can squash that.
But clearly, we feel that there should be more than a _____ case, an understanding, a knowledge present within the ICANN board on trademark issues. Because also when tomorrow or the day after, the DNSO will make a proposal to the board, whether it's rubber stamped or not, is a different discussion. But we'll make a proposal to the board. We'd like the ICANN board, at that moment, to discuss such a proposal, also taking into account the trademark issues which clearly will have been discussed within the DNSO, but which may not be discussed at the ICANN board level.
So at the end, I think our approach is one of being concerned, because we are somewhat concerned that those trademark interests are not sufficiently understood. We are concerned that in the end, the DNSO should not be organized in a way where that significant trademark interest is not present. But it's a constructive approach. INTA did send their representative to the Monterey meeting. We are currently actively involved in the attempt to get a number of business organizations off the fence, to bring them into the debate, notably with regard to the DNSO. So it's a concern, but it's a constructive attitude.
I've learned from Ms. Dyson's book that she collects T-shirts, and so I'm afraid she won't have a lot of time in the next 2 years to collect, to add much to her collection, but I wish her the best of luck anyway.
Keith Gymer: Thank you, Geert. And now we'll move on to the second presentation which is from Francis Gurry who is legal counsel at WIPO Leading in managing the WIPO initiative. And he's been globetrotting, as well, around, and is part of the WIPO process to consult around the world. And he is now going to give us some feedback on how that's going. Francis?
Francis Gurry: Thank you very much, Keith, and good afternoon, ladies and gentlemen. First of all, let me thank Christopher Wilkinson and the European Commission for giving us this opportunity to say a few brief words about the WIPO process that is going on.
I wanted to confine myself really to matters of process and procedure rather than to questions of substance. And just to give you a brief summary of the genesis of the WIPO process, the stage we are at the moment, and what the next steps are, without going into many of the actual issues in a way that Geert Glas has just done.
And there are many of you who are very familiar with the WIPO process. To those I apologize, because I will be repeating things that you already know. But there may be some who are less familiar with the process we are undertaking.
You know that its genesis was the same as the ICANN process, the genesis of the ICANN process. That is, that in the white paper published by the U.S. government in June, most recently in June of this year, it mentioned that the United States government would seek international support to request WIPO, the World Intellectual Property Organization, to initiate an international process on certain intellectual property questions.
That international support, in our view, was given an expression, that the international support that the U.S. government was seeking, for the request, was given an expression when all the member states of WIPO, which is an intergovernmental organization, and we have 171 member states, basically unanimously supported that we undertake this particular process. With that, what we have done is divide our process into 3 stages. And we're at about the midpoint of those 3 stages.
The first stage we thought should be to take the terms of reference that were given in a skeletal outline in the white paper, and to subject them to a broader base of consultation in order to determine what it is exactly that the interested community wanted us to be doing.
The U.S. white paper had mentioned 3 terms of reference. As a result of this first stage, in which we issued a request for comments on the terms of reference, we ended up with 4 basic issues that are under consideration in the process.
And those 4 issues are, first of all, what may loosely be called dispute prevention. It is not really dispute prevention. It is more accurately described, if you like, as best practices designed to reduce the incidence of conflict between domain names on the one hand, and intellectual property on the other hand. And this requires a certain exercise in discipline. We are seeing through the comments that have been submitted in the process to date to insure that one doesn't automatically adopt the reflex of endeavoring to widen one's jurisdiction and collect as much information about all forms of subjects under the sun. And to have some relationship to the transaction. So that is our first issue in consideration.
The second issue in consideration is a uniform, and we stress that uniform does not mean any exclusive system, but a uniform system of dispute resolution. And that has been the subject of intensive discussions already in that issue over the course of the past 2 years.
The third term of reference relates to what are variously called famous marks or well-known marks. And that is, those marks that have a certain notoriety that causes them to have a special form of protection as agreed under international law, basically, in the multilateral treaties that deal with intellectual property under international law.
And we have been asked, in this respect, to see whether there ought to be any special mechanism over and above the ordinary mechanism for the regulation of disputes, whether there ought to be any special mechanism for the protection of this particular class of beast named a famous or well-known mark.
And the final issue is the question of the addition of new generic top-level domains. And I would stress that our particular perspective on this question is a very limited one, because we have been asked to evaluate the effects on intellectual property of the addition of new generic top-level domains. And there are, of course, many other perspectives that one can adopt in relation to the addition, the question of the addition of new generic top-level domains, other than simply the intellectual property perspective.
So those are the 4 issues that were defined in the first stage. We subjected them to the second stage of requesting comments. And that second stage is now just about coming to an end in the sense that we have terminated the period, concluded the period for the submission of comments on the 4 issues. We have received comments from around about 70 entities which include both national governments or agencies of national governments. It included, for example, a joint submission by the European community and its member states. And it includes submissions by corporations and by individuals and by professional associations. So all manner of social organization that exists in the world has managed to fall within the 70 that have submitted comments.
We are in the process, now, of drafting an interim set of recommendations on those 4 issues, based on the comments that have been received and based on the comments that were also received at physical hearings or consultations that we organized in 13 places around the world.
On December 1 and 2, the panel of experts that we appointed to assist us in this process, will meet in Geneva and will, we hope, come to grips with the interim report. And we hope that this interim report will then be published mid-December, around about December 15. It will then be subjected to a further series of regional physical meetings or consultations, as well as a further Internet-based consultation procedure through a request for comments. And we would hope that this would culminate following a further meeting of our experts in the issuance of a final set of recommendations or a final report, if you like, on these 4 issues in March of next year. Mr. Chairman, thank you very much.
Keith Gymer: Thank you, Francis. I'm going to go straight ahead and offer the . . . I'm going to open it to the floor.
Eugenio Triana: On the _______ comment, I propose I should just to ______ other people to unified the language and to refer to well-known trademarks from now on. Because is the language just included in the conventional _________ is the language included in the trips[??] agreement, no? And to prevent any confusion between famous and notorious trademarks and well-known marks. By the way, is the time to encourage the different countries which hasn't ratified the trips[??] __________________ for listen to. To open a dialogue to have a common definition of well-known trademarks, because that is very important and it needs to be filled.
And on the other hand, I consider according with the previous interpretation from _______ that must not be a very serious problem. If we consider that in any case, in any case, intellectual property rights cannot be never wavered, all always are there, intellectual property rights, and [microphone went out]
The procedure could be undertaken, etc., etc. The problem is this ex-anti[??] procedure, the arbitration procedure, the ex ante procedure to prevent, to avoid conflicts. That is another different matter. There are some proposals. I have seen one interesting proposals in the last publication of the _____________ in France, proposing an online ex ante arbitration procedure, a very simple one to prevent these kind of conflicts. And we are, of course, in the ICANN . . . in the ICANN board . . ., waiting for the WIPO recommendation and am very open to any suggestions in relation to this ex ante arbitration procedure to prevent conflict. Because afterwards, I suppose IPR is a primary right, you never wait[??] IPR. People can go, can _____ to other, can ask for the recognition of this intellectual property rights if they consider that this right has been misused or has been infringed by some parties. Okay.
Keith Gymer: Thank you, Eugenio. I think I would make one comment in response to that, and it's not simply from a business and trademark perspective that we'd be looking for some sort of ex ante or, as Geert said, some sort of up-front dispute resolution to get rid of obvious . . . to deal with obvious abuses.
But also, I think as Francis said, there clearly is an issue which we would like to see addressed, of having a system which avoids a structured or designed or operated to avoid or minimize the potential for conflict arising in the first place. I think that is an issue which is clearly very germane to decisions which ICANN will be making, and one which Geert touched upon when he discussed . . . mentioned that trademark owners in the commercial world wouldn't have problems with domains which were clearly differentiated as being political, religious, or free speech issues and not commercial. One of the problems that I, as I see it now, is that that sort of differentiation and adequate distinction does not exist. And the distinction that there was intended has been lost. And that has been the reason that some of these unfortunate and undesirable conflicts have been provoked. Because when it comes down to it, trademark owners are concerned, principally, about the potential for confusion. And where there's no differentiation, there is infinite potential for confusion. Anyway, I'll move straight on now and give it to . . . open it up to the floor.
Ivan Pope: In the 11th amendment to the cooperative agreement between the U.S. government and network solutions, . . .
[??]: Who are you?
Ivan Pope: Oh sorry. Sorry. Ivan Pope, Netnames, a domain name and registration company of fairly longstanding and involvement now, I think. I've been around these meetings a few times.
In the cooperative agreement, 11th amendment, which sends up the transition from the current situation to a new sort of order for management _________, it says that WIPO will recommend characteristics for an enhanced surgical database containing domain and registration data, and within 60 days of the publication of those recommendations, the MSI will respond as to how it intends to implement or how it would implement those recommendations on its searchable database.
This seems to be a key point. And I would just like to ask WIPO whether they are working on those recommendations and when they might be publishing those recommendations. Thank you.
Francis Gurry: Thank you, Mr. Chairman. Yes. It falls within, as far as we're concerned and our process is concerned, it falls within the first issue that I mentioned in our process, namely best practices if you like, designed to reduce the incidence of conflict. And if I may refer you, in particular, to our second request for comments and paragraph 14-7 of that second request of comments which was published, deals with this question the requirements of any domain name databases.
So we would hope that the interim recommendations that we publish in the middle of December will have an interim suggested list of requirements or characteristics of such a searchable database. Thank you.
Erik Huizer: Erik Huizer, IAB. If I am allowed to make a technical observation here, we technicians tend to stay away as much as possible from these issues. But the way I see it, looking at the top-level domain creation, it's certainly possible to create a couple of extra top-level domains. It's probably possible to create 10,000 extra top-level domains. It's maybe possible, but highly unlikely, that the Internet will survive a million extra top-level domains, and it's certainly not viable to create unlimited extra top-level domains.
So the issue that I see is how do you devise a policy which is fair to anybody in this world that allows the creation of extra top-level domains without resorting to the fact that everybody can claim a top-level domain, and we end up with a flat name space? Because if we do, then the Internet will break down. And I think this is one of the most fundamental questions that we need to solve.
Keith Gymer: I think that the technical constraints are certainly obviously a relevant input that will needed to be considered by the DNSOs when they make recommendations on that. Has anyone else wished to comment? Francis, do you want to come back?
Francis Gurry: Yes, sir. I mean, if I may, Mr. Chairman, I agree entirely with the question that is put. It's why I emphasize that as far as the WIPO is concerned, we're really only concerned with one aspect of this question, which is the evaluation on intellectual property, of the impact on intellectual property of adding new gTLDs.
That says nothing, in my view, about why one would want to add them, how one would want to add them, how many one would want to add, etc., which are all the questions which are obviously matters about which we must make a certain series of assumptions in order to arrive at some form of evaluation of the effect of this happening on intellectual property rights, if any.
[??]: That means that I ask the board, the ICANN board, to really think about this. Because if WIPO is not going to come up with this answer, then you will have to confer with the DNSO in how you are going to solve this problem. Because this is going to be one of the pressing problems in my view.
Keith Gymer: Clearly, I can't expect that the technical side will have it's 3 directors on the board making sure that ICANN does that. Do you want to speak on that point, Esther?
Esther Dyson: I'm not going to address the substance of this at all, but let me just reiterate that the way the process works would be that the DNSO would first come up with something, and presumably it would reflect a consensus of everybody in the world. Then they will bring it to the board as a proposal, and the board will have an open meeting where all the people who talked to the DNSO who don't feel happy, can come again and make those same arguments in front of the full board. I mean, it is our duty, as a board, to educate ourselves. Clearly, it's up to the DNSO to come up with the proposal, but it is not our duty simply to blindly pass it. So there's a 2-step process where all these things have to be considered. And I can assure you, that they will, indeed, be considered.
Keith Gymer: Thank you. Is there anyone else who wants to move on? Philip Sheppard.
Philip Sheppard: Thank you. Philip Sheppard, AIM European Brands Association. I have a question on this topic really to members of the board. Do you believe in the principle that there should be no expansion top-level domain names until we have a process of dispute prevention resolution? And if so, do you believe that the WIPO process is a front-runner in a possible dispute prevention resolution process?
[??]: There are several parallel computing processes in this business, because at the same time, we must deal with this __________________ mechanism. We must deal with the discussion _________________ with supporting organization about expanding the number and create a new general top-level domain names if we must deal, as well, with the recognition process from the U.S. government, no?
And it's difficult to forecast the convergence of this parallel computer processing to permit to us, to categorize today where ____________ the first priority. I think that it's impossible to be dogmatic about the need to create new general top-level domains. We know the background documents, of course, and we know some documents proposed in the creation of a number of general top-level domains. The green paper proposed a different number of the ____________ top-level domains. It seems there are, and there are some feelings about the need to do that. Up to now, Internet is working with the system ____________ top-level domains. And it's a matter for us to discuss with all Internet stakeholders interested in doing that with supporting organizations. But do understand that we are, in some way, conditioned for this timing. And one of the conditions is to go ahead in this recognition process.
Esther Dyson: I just want to address this question specifically. The board . . . It's very hard to ask us for opinions, because we have to decide what they are. But I would suggest that a proposal is not something like, let's create 20 new domain TLDs. A proposal is something like, let's create some more TLDs along these particular lines with these particular criteria, these particular methods for resolving disputes, etc., etc., etc.
A proposal is not a suggestion. It's an implementation system for whatever is being proposed. And that applies on everything, not simply on this particular gTLD issue.
Keith Gymer: Geert Glas.
Geert Glas: Just to say that I think it would be a missed chance or opportunity if one would quickly release now a number of gTLDs while those safeguards are not in place. And I understand the WIPO is trying to push those experts as much as it can and push the whole process ahead, but I would find it really a missed chance if we would have done only the gTLDs as they exist now. We would have a second category which are the ones released in the first batch, with no safeguard, and I would have the third category of the ones which would be released afterwards with the safeguard. I don't think that would be a very transparent process.
Keith Gymer: Paul Kane had his hand up.
Paul Kane: Thank you. Paul Kane, wearing an Internet One hat this time. But first, before I really launch into my main piece, I wasn't sure about the Leahey report that Mr. Chairman mentioned earlier. And my question really to the board of ICANN is as the world wakes up to the significance of gLTDs and what's happening in the domain name space, how many reports or researches are you going to be waiting for? That's my real question to the board, and then I'll do my Internet One a bit . . .
Keith Gymer: I think if I got Esther's message correctly, she is saying she is not committed to waiting for any of it. They're clearly going to expect proposals to have concrete more detail in them than simply saying we're going to add gTLDs and we'll follow one process or another. And I think you're going to be more reasoned.
Esther Dyson: It's, to use a down-home metaphor, it's like cooking. You keep tasting it until you think it's enough, and then you go forward. So clearly, we will wait for enough reports and enough input and hear enough arguments get worn out until we think it's the proper time. And we will do so openly and with a lot of people tasting along with us.
[??]: No it's very simple comment, no? In our activities, we are following, of course, the white paper in the transition period, white paper prefers to asking WIPO, etc. And WIPO elaborating a set of recommendations, etc., for the ________________ is a clear prescription from the white paper, no?
On the other hand, I don't know if supporting organization could provide additional inputs and additional studies in some of the stakeholders. But it's . . .
Keith Gymer: Paul, did you want to finish?
Paul Kane: If I could very briefly come back. My question wasn't directed at the WIPO initiative, which I very much welcome. It is . . . They're a national research council in the U.S. is undertaking research. The Australian, Austral-Asia group will be undertaking research starting middle of next year. I'm just trying to get a feel from the board first time we've basically had a chance to speak.
As to your time frames, if you are going to be waiting until the last regional government has had a chance to deliberate on this issue or if things are going to move on. Just moving, if I may, to my main area, or in fact, the people that are paying me to come here today, the matter of listing services.
Consumers, I believe, are fundamentally interested in identifying legitimate companies on the net. And there is a role, I believe, for effectively a self-policing listing service where legitimate parties identify themselves and specify, to the consumer, their specific area of operation, which can be policed in an open forum with effective dispute resolution facilities.
And I would like to encourage ICANN, in its deliberations, to give thought to a process that is now being adopted by G7, WIPO are providing dispute resolution, OECD have come on board saying, potentially, this is a foundation on which electronic commerce can gain some degree of security.
And I was wondering if ICANN is actually going to be running or proposing systems that are authoritative or leave listings services and directories to the marketplace.
Esther Dyson: Obviously, we have no such immediate plans. And as a private citizen, I've participated in something in the United States called TRUSTe, which deals specifically with data protection and data collection practices. There's something like BBB[??] online. There's Dun & Bradstreet. There's Moody's. There are lots of such rating organizations that the market has created. And I think we have a lot of other priorities on our plate. And I personally would be glad to see such things develop all by themselves.
Keith Gymer: Dennis, you want to . . .
Dennis Jennings: Dennis Jennings, University College, Dublin, Ireland. In discussions with intellectual property lawyers in Ireland, it's been pointed out that under Irish law, the organization to whom or to which a domain name is allocated and which uses it, is likely to acquire property rights in itself, in the domain name. And this is a matter for the courts, of course, not for anybody else. Is there any consideration, anywhere, on domain name property rights, that will accrue to organizations as they use allocated domain names?
Keith Gymer: I know when we went through the earlier WIPO discussions, this was an issue at the very first WIPO hearing that they held in '97. So Francis may like to come back on that.
Francis Gurry: Thank you, Keith. Well the brief answer is no, but I think the longer answer, the longer explanation is that really domain names are a spontaneous mutation of an intellectual property right. They are different. One can list the similarities and the differences. They were designed for another purpose, but they are a form of business identifier, and one cannot fail to recognize that.
But I don't think that there is any expression of political will to create a . . . to define the parameters of that property right. I mean, it depends on what you then mean by property also. But anything that you can buy or sell or trade in is arguably property. So that they are already property, and the question, I think, would be then, do you want to formalize that property right? And as far as we understand from our member states, there is no desire to achieve any formal status of recognition to describe these in any particular way at the moment.
Keith Gymer: And I'll add, Dennis, one quick comeback on that. And if there's one more question after that, then we have to conclude this session.
[??]: Thank you. Just responding to that. It does beg the question of whether domain names are allocated or whether they're owned. There certainly is discussion in a very general sense in Ireland about this. And, of course, if they're only allocated, it also begs the question of how they can be returned or reclaimed. Is there any discussion on that which very much relates to the property issue?
Keith Gymer: I think Francis has signified to me no, the answer to that question. Finally, I'm going to pass it to Amadeu who wanted to . . .
Amadeu Abril i Abril: Okay. He's the guy I remember was trying to keep my work here, because he knew that I was trying to criticize something he said a long time ago. And while the thing is that, as you may imagine being with my affiliation, I'm absolutely for the commission of new gTLDs for the simple reason that my understanding is that the market has some clear demand for that and the future expansion also.
But I will agree with everybody probably in the room, and certainly there in the table, that it shouldn't be done without certain guarantees for trying. And here was the criticism, not to avoid conflict, as Keith would said. You know, as a lawyer, I am horrified about social exercises that avoid conflict. Just to try to solve some conflicts, like to prevent some conflicts, and try to ease the solution of the conflicts that inevitably will arise.
The second thing is that what about these kind of mechanisms? One of them is, slowing down the entry of new gTLDs. Perhaps. But just one thing about the INTA position. If you only allow one gTLD each time, it means that one month, 6 months, or one year, you are creating continuous gold rushes. If you introduce even a very small number of multiuse TLDs, you have a chance to educate people to choose where they should be.
And third, about absolutely slowing down and a differentiation of TLDs. It works if you have some choice. If not, it happens what had happened to .net and .org that they became somehow replications of .com. And this will be what will happen to many of the more than 230 existing TLDs in case we don't find, in a reasonable time, a solution. Some of them will have irresistible pressure for becoming out-of-control TLDs without any of the guarantees we have been talking about.
Keith Gymer: Geert.
Geert Glas: As somebody . . . I think some of what you talked about touches upon something which has been said earlier, that is, how tough do you want to be in the organization of the new gTLDs? When tomorrow a .nom comes on the scene, does that mean that from that day on, you can actually refuse individuals, private citizens, from taking a .com, from taking a .shop? Does that mean that if tomorrow we have a .xxx, does that mean that we can indeed refuse provisor of pornographic material from registering in .shop and .firm?
And, I think, will there be a gold rush? Yes, there will be a gold rush if the entry of new gTLDs is not accompanied by a number, by somewhere a rule that you will have to stick with. And if those rules don't exist, I am afraid that a lot of companies will, indeed, not take the risk, and will continue to take .whatevers in any new gTLD, just to prevent third parties from running away with their trademark. And then, have we solved anything? No, we have not solved anything. Because we wanted to bring more oxygen in the system, and we have not done so.
However, on your last remark, and I know that this is a sensitive issue. But if tomorrow, the .ca for Canada . . . If tomorrow, the .ca is wildly marketed and commercialized in California as some people suggest, . . . And I am taking very innocent example. There are others that you all know. But if tomorrow California companies do take .ca ccLDs, then I think we're not doing the job that we should.
Keith Gymer: I think we'll have to wrap it up there. It's certainly shown that there's a lot to discuss and a lot for the DNSO to deal with in order to resolve these differences between views, between people on Amadeu's view and the other views expressed here. So I'll now pass it over to Bertrand de Cordoue, who will be leading on the public policy aspects.
Bertrand de Cordoue: So ladies and gentlemen, I have the great pleasure to introduce the last and the shortest session of our meeting. I am sure it will not be the least.
Esther Dyson: Not quite the last, actually.
Bertrand de Cordoue: Oh yes, there's the last round table, of course. And we are supposed to address the issue of public policy aspects. So my feeling is that we don't want to reopen the debate on the control the government should have on the new organization and on the new process which is now being set in Europe. I think there has been a consensus that there should not be governmental experts in the interim board. And I think it's a good thing. Otherwise, the only option we'd have to appoint the UN General Assembly as the board of the ICANN.
But, there is a but, there is two but actually. First one is that even the private not-for-profit organization based in California is submitted to public rules, and we have now to address how is this can being achieved on an international basis. This is the first issue, I think.
And the second one is that everybody will recognize that public administrations are, by the way, users of the Internet domain names. These are great users of Internet domain names, and they should be listened to as such. And that's probably the reason why it has been proposed to establish a concert ________ committee for . . .
Christopher Wilkinson: . . . users, trademarks and public authorities. The private sector organization like ICANN is not a surrogate for public policy, but it certainly operates within the context and framework of public policy. And the European Commission and the member states have given considerable weight to our relations with the United States government and with the new corporation with this in view.
The commission has given the new corporation an effective endorsement. Mr. Bangemann's recent letter to the Secretary of Commerce Daley expressed satisfaction with the progress that has been made in the formation of the new corporation. Some changes have been made to the bylaws and the articles. We thank you for that. I personally expect that the Council of Ministers will be able to recall and endorse that position when they meet here in Brussels on Friday.
Now we did not come together, today, to give the new board members a hard time. But even less an easy ride, we did want them to listen to what you had to say, to listen to the speakers and the participants. I believe that they have done that, and have learned a great deal in the process.
Now a lot has been said about trust in the new board and corporation. Naturally, we share that concern. Governments and international bodies have responsibilities to their electorates and their members. They share that concern.
I must say, the board seems to have taken some important steps to build up that necessary degree of trust. The commission and the member states were particularly concerned that the rules for international participation and the respect of international law, in particular, non-United States jurisdictions, would be as balanced and as fair as possible. I believe that the new board has done that.
That was an important first step. And the same general principles will, of course, apply to the supporting organizations. The creation of trust in the new corporation has also been an issue in the United States. But there it has taken a rather peculiar twist. We have, of course, followed the discussions in the IFWP and the Boston Working Group and the Open Route Server Confederation, among many others, in recent weeks. And we all value their contribution to the debate as well.
However, we would not like to see the board being pulled in several different directions at once. Sometimes inconsistently so. It is, as we have observed before, important to maintain the basis on which the agreement has been reached, particularly between the United States and the European Union and other international parties.
The discussion about Internet management has now been going on for more than 2 years. Even longer, as some old hands would have it. On occasion, it has become quite recursive. And I think it's time for everybody to take note of the major turning point that has taken place with the corporate . . . with the incorporation of the new organization, to make sure that our work, in future, is about moving forward and implementing the consensus as and when it has been reached. And not going over old ground again and again. And I have been much encouraged in today's discussions to hear the extent to which, in recent weeks, that consensus does appear to me to be moving forward.
Consequently, we do think in terms of a few fixed points. And undermining them at this late stage is not contributing, necessarily, to trust and confidence. For example, the role of the ITU and the WIPO has now been pretty well decided. That is going ahead.
Secondly, the EU expressed considerable reservations in the green paper about the proposal for private proprietary top-level demands. And we've heard, today, about some of the IPR and management problems which might arise in that context.
Thirdly, we are concerned that the active promotion of alternative root systems and multiplication of top-level domains in that framework, would not contribute either to predictability or interoperability. And that doesn't really contribute to trust and confidence. We know now, and this was one of the early points that the member states pointed out to the commission. We know now that the domain name system cannot ignore the trademark system. Putting together a workable resolution to this problem has become a long and fastidious task. And we're grateful to the WIPO for taking it on.
But it doesn't help to every so often pick up pages and pages on the lists, saying what a dreadful thing this is. That doesn't contribute to trust and confidence. So, ladies and gentlemen, building trust and confidence is a 2-way street. We have substantial trust and confidence in the new ICANN, on the basis of the agreements that have been reached.
Let me turn to the supporting organizations. The board has significant responsibilities in this area under the bylaws. We've always thought of the supporting organizations as an essential source of input, both on technical aspects and policy. And the commission will certainly follow, with interest, the finalization and the implementation of these proposals.
We have always supported the principle of transparency. And there is a point, an intersection, between the responsibilities of the ICANN transparency and the quality of service. And that is in the reliability of the domain name system's databases for several purposes.
Finally, a word about membership. Last July, the commission clearly recognized, in its communication to the council, that the private sector should participate in the membership and organization of the new corporation. How this will be achieved is very much up to the new board and the private sector, to work out to their own satisfaction.
I imagine that there are several solutions that would be equally acceptable to most interested parties, and certainly to the public authorities. However, it would be important to ensure that the membership structure would be broad and representative, and special efforts would almost certainly be necessary to ensure adequate membership participation worldwide.
Furthermore, a membership organization with thousands, even hundreds of thousands of members, cannot claim to represent, ipso facto, all the millions of actual and potential Internet users. That in the last resort will remain a preoccupation of elected governments. And their trust and confidence in the new system is, consequently, an integral part of the legitimacy and authority of the new corporation.
Before I close, I would like to thank the members of the board, and particularly the new interim chairman, Mrs. Esther Dyson, for coming to this meeting, for contributing so positively, and making themselves available for the debates that we've had today. Thank you for your attention.
Bertrand de Cordoue: Thank you, Christopher. I now pass the floor to Robert Shaw from ITU.
Robert Shaw: It's nice to see Esther. I met her about 10 years ago in Santa Fe, New Mexico, and we were arguing about hypertext at a Hypertext conference. This was way before the World Wide Web and I used to spell it HYPErtext. Everyone was hyping it, and I couldn't possibly see the use for this. I was wrong.
But this time I think I'm right, Esther. About 3 years ago, someone came to me and said, "How would you like to participate on this committee that's going to look into the problems of the Internet domain name system?" And I said, "Are you nuts?" It was so contentious even at that time. I can't even imagine the chore of coming into this task now with so much controversy bubbling over the last few years. But anyway, I wish her luck.
Anyway, I'm from the International Telecommunication Union. If you don't know what the ITU is, I'll give you a very brief introduction. We're about 133 years old. We started off as the International Telegraph Union, which gives you an idea. There was a sort of first Internet architecture board that started it. A bunch of people got together and said, "We really need to communicate and make our incompatible telegraph systems work together."
So they created this organization, and now we have about 190 member states. There's about 700 people who work at ITU headquarters in Geneva. We also have very large private sector participation too. So all the telecom private sectors companies, and the Internet router vendors, and so on, the Ciscos and the Intels and the Microsofts, those are all members of ITU too. And if you want to find out more you can go to our web site at www.itu.int which has about 100,000 pages and 40 gigabytes of information. Next slide.
Christopher mentioned that the ITU is taking a more proactive role here. We've been involved for the last couple of years, but our membership has given us now specific directives at the recent ITU Plenipotentiary conference, which is a fancy name for a conference we hold every 4 years that decides our strategic directions.
I see that Christopher is distributing a copy of the ITU Plenipot resolutions. I wish I had known that, because I was desperately trying to tunnel to my desktop machine back in Geneva last night, trying to get a copy of it, because I discovered I didn't have a copy on my laptop. Anyway, so there's some prescriptive recommendations, things we should do, but mainly it's to take an active part in discussions and keep our members, keep governments informed of what's happening in this area, and they can take any action that's necessary, I guess. Next slide.
I'll mention a few public policy issues. It's been very interesting watching the evolution of people's views on the role of governments in this issue. The popular mantra today is the private sector must lead and we've got to keep governments out. But that's not a panacea that will make all problems disappear. It's ironic that we're so willing casting aside thousands of years of evolution; governments have been around for a long time, and, perhaps, they're terrible and so on, but we haven't thought of anything better. There's some very very good essays by Larry Lessig. I recommend you reading some of them on "Governance". He talks about how you just can't say, "Oh the private sector will take this all over and it will sort out all the problems." There are some very very difficult public policy issues here with the domain name system.
And I'll name a few of them. Name taxonomy policies, having a scalable and a homogeneous name space, intellectual property issues, of course. Intellectual property is granted by governments, typically, and then there is the competition model. What's fair competition in this space?
Name taxonomy policies. I mean, the domain name system was basically created back in 1984, and it's actually amazing that it's lasted so long, back then the Internet was really only a U.S. phenomenon, only about 50 networks. And that's why you find nice ethnocentric things like .gov, .mil, and so on. Eventually they were closed off to only U.S. registrants. .int got created later when NATO wanted to register in .mil, and the U.S. military said, "Well, no, that's not quite right, so go create a .int." In fact, there was a .nato created for a while, and it was actually in the root servers until a couple of years ago.
And then there's this ISO 3166 list too, about 240 country codes to use the popular terminology. Next slide.
We have to realize how popular the gTLDs are. They comprise roughly 75% of the total domain name space. All of the other 240 ISO 3166 codes have about 25% here. You can really consider like Esther said this morning of .gov, .mil, .edu should be considered as if they have .us tacked on the end of them.
Of course, the growth in the gTLDs is really a relatively recent phenomenon. It was only in 1993 that the registrations in .com surpassed those in .edu. And we're seeing tremendous take up in this space by non-US entities. For a long time, people considered this just to be a U.S.-only space. But, of course, the registration growth now is really, up 78% in the last quarter, is from non-U.S. entities. And I estimate something like 35%, 40% of registrations in .com are non-U.S. entities.
Of course, this creates lots of conflicts between trademark law, which is fundamentally national law, which has, of course, been beaten to death today. And one of the most important things about the domain name system is that they're embedded in URLs, which means they're embedded in the fundamental content fabric of the Internet in the World Wide Web. So it's very, very, very difficult to make changes.
As I mentioned before, I'll post this presentation (http://people.itu.int/~shaw/docs/pov.html). I don't want to read reams of text here, but the 3166 set is not a country set. There are subdivisions in there. And I mentioned some of these mistaken allocations. And, of course, if Guernsey and Jersey get their code, well Wales and Scotland want to know why don't they get their code and so on.
When you get involved in this activity, Esther and the ICANN board will see this, you will be inundated by mail, from around the world, of each regional group claiming that they should have autonomy and why can't they have their own country code? And so it's great to have this indirection point at another ISO list. And if it's not in there, sorry, you don't get in. And it's somebody else who makes the tough decisions. You don't want to get into the real geopolitics surrounding this topic.
The 3166 set is derived directly from the U.N. General Assembly. So those who say, "Oh this has nothing to do with governments," are out of their mind.
I think some of the interesting experiences with some of the ccTLDs has taught us how not to do things. We need to think about things like user interests here. For example, Tuvalu. Okay, some would say say the best way to allocate new top-level domains would be to auction them off. Well, recently you supposedly had to pay $50 million to get .tv. And, of course, the registrar/registry, now has to recuperate that investment, is now charging $1,000 for each registration. Maybe even more if you want something really fancy like sex.tv.
There's lots of cases of ccTLDs where the governments don't even know who is running them, and there are fights over them and so on. At the ITU plenipotentiary conference in Minneapolis, I was collared by the Deputy Minister of Communications of Bhutan, saying, "Who's got our code and how do we get it back?" And we said, "Well, okay, here's what we can do."
So they've asked the ITU to run it for them for a while. Okay, so one of the things that we need to recognize in name space is that we have 2 taxonomies. There is actually a few more, but we have 2 basic taxonomies, that's a geopolitical taxonomy and a generic name space taxonomy. And it's going to be very very difficult to treat those in isolation from each other. That's why I thought it was horrific when I realized, with the DNSO, that they're gonna throw the ccTLDs into the pot because it's really best just to keep it separate for now. But anyway, it's in there now, and I think ICANN is going to have to consider things how things impact across these taxonomies. One example is, conflicts over country names. I mean, everyone knows governments think they have rights to names. Everyone knows that .us stands for United States. And it's pretty clear that .usa could stand for the United States. Well there's a .per, which is the 3-letter code for Peru, but there's a chap in the United States who wants to runt that as "the personal domain name space". Well, I'll reply, "I'll take .usa and I'll call that the usable domain name space." You're not fooling anybody. So you have to make sort of objective rules. And so one of the things that ICANN might consider is reserving the 3-letter codes in the ISO 3166 standard that exists. And I know that some governments are concerned about other things like their currency codes or other generic names. Another example is a a chap who claims he runs .aus for Australia and so on.
Scaling is a very very serious problem. I mean, we have to realize the Internet penetration is just minuscule right now, compared to say the telephony network. So if we're congested with only 4 million registrations, what are we going to be in 10 years? People think directories are going to solve all these systems. I'm not convinced.
The DNSO was originally designed as a hierarchical system, you know, like the long hierarchy when registering under .us. You can't be ibm.com, you've got to be www.ibm.armonk.ny.us. But of course marketeers hate that. They want to be ibm.com or ba.com. But who gets ba.com? Is it Bell Atlantic, (they do have it). Or should it be British Airways? There's many many people in the world who share short acronyms and they all want that marketing value. In fact, recognizing this, there's a company in the United States who just go out and register every 2- or 3-letter domain name that becomes available in .com now. So this is really nonscalable, what's happening right now.
Intellectual property. That's been beat to death today, but it seems pretty clear that the intellectual property community wants a single dispute resolution process while a lot of people think, well we should just have lots of them. But it's very very difficult to develop this sort of stuff in isolation from the technical issues because the dispute prevention information you need to be in the registration agreement, which is going to define the registry registrar interface. Everything is intertwined and most don't realize the complexity of the issues.
Everyone has their horror stories. Here's a few of ours. UNHCR.org. I saw that about 3 years ago. Normally you might imagine that to be the United Nations High Commissioner for Refugees in Geneva, Switzerland, winners of the Nobel peace prize. In fact, the domain name belongs to the Refugee Republic Corporation, in Nevada, and they're selling "shares" in refugees.
There is lots of cybersquatting on "United Nations". There are at least 50 variations of United Nations registerd. I've written to NSI many times to try to help us to deal with this problem. But, of course, there's nothing in a dispute resolution policy for the names of international organizations which don't fall under any trademark law at all. They're actually protected under Article 6ter of some Paris convention from 1883. See, Francis? I'm learning a lot about intellectual property.
More. ITU.com, WIPO.com, grabbed by this company in Texas that registers every short name. Telecom99.com, grabbed by a former employee of the ITU. But what do you do? Telecom is one of our big trade fairs, and our next one is in 1999. Next slide.
Competition model. I think we have to recognize some things. Why does everyone out there want to get .law, .sex, you know, one of these nifty names. Because the market value of each of those names. That's fundamental semantic value. It means you'll have millions of registrants in there. Now the green paper came out with this wacko idea that names can be competitive. And I say, "I don't banana that." And if you say, "What do you mean?" I'll reply "well I got a cheaper price on the word banana". TLDs, words do not compete. And so you cannot allow entities to have exclusive control over names.
So you've got to remove this one-to-one relationship between registrars and registry, which we had in the past with NSI. And, of course, this requires shared access, which most everybody seems to have bought into. But 2 or 3 years ago, people were arguing with us. No, no, no. We can have competition if I have .web and you have .com. But that doesn't really work. Think of 50 competitors .com. We've been through this exercise, you can't.
So the registry controls one or more gTLDs. The registrars need to be globally distributed. There has to be objective criteria to get in there. And one of the great things about this, is that you can have domain name portability. If you don't like your registrar because they never answer the phone or their children are mean to your children, you can move to another one.
What's even more important here, and which a lot of people haven't accepted yet, especially some groups in the US, is that the registrars need to jointly control the registry database, not the opposite model. That's very very important. Because it's too tempting for the registry if one company controls it, to manipulate that database. And that database is worth lots of money.
When we went to build the CORE database system, there were companies that came to us and said, "We will build it for free for you." Companies that are very big in data mining and that type of thing. And we said, "No thank you," of course. But they wanted to do that because they would control one of the world's most valuable databases.
The R word. Everyone thinks, "Oh yes, deregulate it. We'll need less regulation." They ignore the history of telecommunications. Back in the old days, when AT&T was the only company that was providing telecommunication services in the US, they basically had a one-page agreement, "Thou shalt give universal service," and that was it.The rest, we're not worried about.
But when you have a deregulated environment, you've got to have all types of rules and penalties if you don't play fair. And so on and so on. So, when you move to a competitive environment, there's going to be a lot more regulation, the R word.
And it's very very difficult to do start-up conditions for new TLDs now. There is such a pent-up demand like we saw with CORE, the preregistrations. There are hundreds of thousands of preregistrations. People want to get new namaes.
So my final comments for ICANN, enjoy these days, these are your halcyon days. When we started out in the IAHC, we thought, yes, we shall go forth and do good things! But you haven't seen anything yet. You still haven't made any substantive decisions. You're still in, "Oh yes, I hate this word in paragraph 3 of the bylaws that you may vote in secret, blah, blah, blah." Let's face it, that doesn't really matter, any of that stuff, okay? It's missing the big picture.
And here's a recommendation. Most of the hard work has already been done. You're really in a constrained box about what can be done. Sure some minor variations can be made to reach a compromise between all these parties. The hard works has already been done by folks with arrows in their backs, which includes me. So I wish you luck.
Bertrand de Cordoue: Thank you, Robert, for this very instructive and challenging presentation. And I now pass the world to Eugenio Triana.
Eugenio Triana: Many thanks to all of you for coming to this meeting. Many thanks to Esther Dyson for coming to here to this meeting. Many thanks to Christopher Wilkinson for organizing this conference and for his personal contribution to this process.
Yes, I am going to refer to the interrelation between public policies and the private exercise like the building up of the Internet system. Stable, open to competition, and oriented to satisfy the needs of all the citizens.
______________ the role of the public entities, of the public regulations in this field is not to intervene at all. Not interfere the decisions of the market. Not impose any particular restrictions on this. The Internet success story is the story of all the concerns[??] ________ of the people of the free initiative to cooperate, to interconnect, and to interpret.
For reason in the European Commission communication concerning the convergence between telecommunication and ____________ after this, this green paper. A public consultation has been performed. And an overwhelming majority is in favor not putting in place any specific regulation for Internet. Any trade regulations you can see or any _________ regulation for Internet purposes.
And that means that on the other hand, that it's not possible to forget that we must operate under the rules and the regulations, local, regional, or international, that affects every activity. If we cannot ignore any fundamental rights or there is no consensus able to erase any relevant and significant regulation or fundamental law. That means, in consequence, there are, of course, always an important interrelation between the public policy and this Internet private-led exercise.
One fundamental conclusion to draw out in this case, the experience show us that a big differences, the conflicts affecting different regulations worldwide, are a major disguised restrictions hindering the deployment of international trade. In this case, hindering the deployment of Internet open international traffic. I think this is very important, and we are facing a new period where we must ____________________________ circumstances, and to work on for having a process, not a policy, of course, a process to permit continuous international dialogue.
First of all, at the private level, and then at public level as well, to eliminate this significant conflicts of differences, and to permit some kind of harmonization, particularly upon the modalities to applied general rules, international rules, or local rules. Because at the end of the day, all the fundamental rights just introduce in the most important context over the world. I base it on the same principles. I base it on the same legal and democratic principles. And I consider that it is not impossible to arrive. And we have a lot of good precedents in history to arrive to some common understanding about how to apply, how to implement these rules.
For recent European community was created, under the fundamental rule of serving competition law. It was a kind of competition law was an imitation on the American competition law. And at this a good beginning, they can explain, probably, the good understanding between the authorities in Europe and authorities in America when you deal with the implementing competition laws.
And that is, of course, one of the reasons, one of the justifications to create, in the ICANN bylaws, this advisory fundamental[??] committee, as one of the means, one of the means, not the single one, not the most important one, one of the means to permit this continuous international dialogue on public policy. Oriented in my view, to ease the worry for the private entities to create this seamless global Internet network and to permit all the citizens receiving the benefits. Not to impose, not to intervene, not to interfere.
And in this point, I like to quote ________, one of the founding fathers of the American Constitution, because during the discussion on the definition of the American Constitution model, then _____________ about the definition of patent rights and copyrights. Then by the way, two definition which are absolutely valid today, two centuries after. Madison said, commenting the definition of patent rights and copyrights, "In this case, the public good fully considers in both cases with the claims of individuals." I think this phrase from Madison would be fundamental for us, because we are looking for this scenario and a scenario for Internet where public interest is harmonic with private claims, with private _________ for the people taking risk to invest in Internet. The people who finance Internet _______ the people looking for the domain names, etc. And at the same time, that is harmonic with public interest. That means having the opportunity to access the cultural goods, the opportunity to have a very cheap communication, the opportunity to communicate each other.
And that is one main orientation for describing how an institution like ICANN, a basic on[??] private worldwide consensus, oriented to open competition, oriented to eliminate any kind of a specific regulation for Internet, etc., etc. Could interact positively with the public policies. First of all, to delete, to eliminate any fundamental international conflict of differences which could reclaim[??] a disguise restriction for international traffic on Internet.
I think there are many examples to put in a positive way. The conventions the last century create intellectual property rights, putting in consensus very different culture, very different levels of the ___________. The same approach after some difficult process in Europe about, for instance, so sensible ___________________________________ technological inventions. We have a lot of samples. I can't comment about how to deal with implementation of competition law, etc. And I am convinced that we can work step by step, case by case, in preparing this international dialogue to elaborate a set of minimal rules and to have this common understanding how to implement, for example, competition law, how to implement the rights of intellectual property. How to implement many other aspects with relation with the economy of Internet, the taxation on Internet, etc., etc. Keeping in mind the Internet must be a private business, and we don't need, at all, any special[??] regulation[??].
In this moment, this possible optimistic view is more supported due the explicit aiming in America, in Europe, in Japan, in Australia, with everybody in relation to telecommunication ________________ to pass from a first period where you have a heavy regulation to promote competition, to permit new interests coming in. Everybody is proclaiming the intention to go to a new phase where you have light regulation. That means developing the major part of trade regulation or ___________ regulation and open the full competition all regulating but the rules application of competition [voice trails off] _________________.
And that is, for us, one of the major challenges for this period. It will explain to the authorities from the _________ that they must be consequent in looking for this international understanding about the interpretation of the main rules to permit Internet being deployed as a real global network from now on.
And I think we are going to work in cities __________ for this purpose from now on. And ICANN board, of course, is already opened as well. And white paper refers to the international consultation, even to the governments about the transition of _______, about the way to pass __________ a full competition period. And we hope that through this advisory governmental committee, and through any other aspect permitting this dialogue, we can arrive to eliminate this disguise restrictions, sorry, which appears when you have conflicting rules or you have conflicting cultures or you have conflicting traditions that is necessary to overcome.
In consequences, you permit to me ________________ permit me to mark up a little _____________ speech. I can't say it, to have the right public policies for an Internet supported by the private interest, you must fill 3 conditions. First, continuous international dialogue. Second, continuous international dialogue. Third, to finish this conference just in time. Thank you very much.
Bertrand de Cordoue: Thank you, Eugenio, for this very interesting presentation, giving some principal for the future work of the ICANN Internet board. As time is running very fast, and I think it will be a good idea to shorten the last session which is supposed to be the most interesting one, because we'll take some conclusions all day. I suggest that we take only one question on board, if there is one . . . I see there is one, please.
Erik Huizer: Erik Huizer, European citizen, to distinguish as which I'm talking. First of all, as a European citizen, I would like to thank the EU Commission, specifically Christopher Wilkinson, for his work in helping out in the whole discussion, and ____________ his obvious role in balancing the U.S. government influence and making sure that we get the possibility to establish something which is independent of government. He has given us a chance to put in European input ____________ EC-POP. And I think all of the EC-POP members will agree that we really appreciated the chance to have that.
And . . . But I wouldn't be a very good citizen if I didn't have a complaint too. Oh, that's because I'm Dutch. My complaint is that I am getting a bit frustrated because at the last moment, I think all this work seems to get snatched from us, because I got the impression that up to a few weeks ago, we were listened to both in Europe and people also in Asia, America, etc. And now all of a sudden, last weekend, we have seen changes to the bylaws made by ICANN, which were, in my view, demanded by the U.S. government, based on a report in the New York Times of the 14th of November meeting, which I absolutely am not in agreement with. And this is my personal opinion. I haven't been able to talk to the IETF yet, but I'm predicting that the IETF will be very frustrated by these changes too. And I would urge Christopher to take, to see whatever the European position will be on this before he puts this to any EU voting or whatever.
And my last remark with this respect is that some of these changes go into the direction of more accountability according to American culture. And, therefore, run the incredible risk of running into privacy issues with respect to European and certainly Asian culture. And if the demands for accountability and transparency of the process go into the personal level, that means that the privacy of board members is thus infringed upon in European view, that we won't be able to find real good board members from this region in the future to take this role.
Bertrand de Cordoue: I'm sure that Christopher is the most qualified to answer this question from the European citizen to the European Commission.
Christopher Wilkinson: Thank you, Erik, for your words and for your thanks, and I am honored. I think the panel that we set up in July is doing a splendid job, and it is not over, and nothing has been snatched away from you and I think we've heard during the course of the day, of several new chapters in this story which everybody will want to read and some people will want to write.
So I share some of your concerns about the latest developments. I'm not particularly upset about the actual drafting of those changes. There were other changes which the commission had requested on behalf of the private sector and the governments in Europe, and which were also included. So I am prepared to accept a bit of done all done all[??] give and take in that respect. And, of course, the criticisms and comment that you addressed regarding the position of board members, I think the board members would want to respond to directly.
I hope what I said a few minutes ago was not unduly coded. I am not happy with the situation where the tail wags the dog. We have a large consensus. We know where the genuine . . .