[Cwg-rfp2c] Initial Comments on Docs

[King(Legal), Stacey]

Just wanted to see if anyone had any feedback on this (and to make sure it was received).
Thanks.

From: cwg-rfp2c-bounces at icann.org [mailto:cwg-rfp2c-bounces at icann.org] On Behalf Of King(Legal), Stacey
Sent: Thursday, October 30, 2014 11:28 PM
To: cwg-rfp2c at icann.org
Subject: [Cwg-rfp2c] Initial Comments on Docs

All,

Apologies for my late attendance to this group.  I look forward to working with you all.

I just looked through the two docs - Issues Flowing from the IANA Functions Contract and the Triage of IANA Functions Contract.  Both docs are great and clearly a lot of really great work went into them. I have a few comments just off the bat.

In the Issues Flowing from the IANA Functions Contract document, we should mark the "requirement that contract functions be performed in the USA" as linked to accountability and oversight.  This is not to say that the functions must be performed in the USA, but if this provision is to change to a different jurisdiction, we must be sure that the laws of that jurisdiction are sufficient to protect affected parties.

In the Triage of IANA Functions Contract document, there are several provisions that we should discuss.  First, we have marked that C.2.5 - IANA functions staff should not become involved in policy development - likely needs improving and is linked to accountability and oversight.  It is important, as we have seen in several other discussions going on simultaneously, that we not politicize the IANA function.   I think it is worthwhile to review this provision in some detail to determine what we are recommending when we say it likely needs improving to prevent us from opening a can of worms.

I also want to raise the issue of intellectual property rights.  Under the contract, the government holds patent rights and unlimited rights to data and copyright produced under the contract, and rights to all deliverables.  It will be important to review what happens to intellectual property rights in this context.  If the US still holds patents will it release them to the public (or is ICANN hoping it will assign them to ICANN?)?  And in relation to my note above on jurisdiction, this is possibly very important in connection with copyright in particular.  Many copyrighted works that the US gov't claims copyright in - including through rights assigned by contractors - are actually public domain works.  We probably want to do a deeper dive to look at whether or not we need to get some expert advice on how to rework these provisions so that we are not actually taking matter that is de facto public now and closing it down by granting ICANN (a private organization) the IP in it and, vice verse, that whatever jurisdiction this contract is ruled by does not have laws that would have a negative effect on ccTLDs and gTLDs in relation to patents, database rights, etc.

Finally, I note a number of provisions relating to section H are marked as do not retain.  I do think there are some that we would want to retain and modify as appropriate.  For example, the section on identification of contractor personnel in meetings or notice requirements regarding insolvency investigations seem like transparency issues that we may want to try to incorporate given the importance of this function.

Thanks!

Stacey King
Senior Corporate Counsel, IP | Amazon.com | +1.206.740.8515 | stacek at amazon.com<mailto:stacek at amazon.com>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-rfp2c/attachments/20141104/13f28767/attachment.html>