[CWG-Stewardship] some background information for the intellectual property rights discussion (Was: Fwd: [Ianaplan] IANA Intellectual Property Rights: Minimum Requirements)

Tue Oct 20 18:22:14 UTC 2015

On October 17th Alissa had shared the CRISP requirements
on this list. In preparation of the upcoming CWG meeting I
thought it would  be useful to re-send a copy of the earlier
IETF thoughts on this matter, although I think it may have
been shared previously as well.

I would also like to say a couple of high-level things. Earlier we
all had found agreement in the three communities that a
neutral organisation - not the IANA operator - is a
reasonable place for the IPRs and domains. We’ve also
said that the steps beyond that agreement are
implementation. In developing that implementation
plan, I think that it is beneficial to start from drafting
requirements and perhaps a framework of the arrangements
before jumping into the question of who serves as the
holding entity or the details of the contracts.

With that in mind, the IETF has thought about the framework,
and I wanted to copy you on our initial thoughts, at the end
of this e-mail.

The basic idea is that  whatever we do among the five
parties (3xOC, 1xoperator, 1xholding) we will have to
specify the roles and rights and responsibilities
regarding the IANA IPR contractually. (It is
important to note that those rights are affected
not only by who holds the ownership but also
by which contracts are signed with that entity.)

From our perspective at the IETF, we are keen to work with
you in the CWG and CRISP to figure out what the right
answers are here. We’re open to different arrangements,
and believe that the work needs to start from specifying
the expectations or requirements.

Looking forward to the discussion tomorrow,

For reference, there are a couple of relevant documents
that relate to this discussion. The ICANN board statement:

https://www.icann.org/news/announcement-2015-08-15-en

and the CRISP requirements:

https://mailarchive.ietf.org/arch/msg/ianaplan/DfdUZlPorTObc___R8CSHCsfq2g

Here’s what the ICG’s current and final-but-for-the-ccwg-conclusion
document says about IPR:

> In early 2015 the ICG identified a potential compatibility
> issue regarding the IANA trademarks and the iana.org
>  domain name. The numbers community expects that
>  both are associated with the IANA functions and not
> with a particular IANA Functions Operator. The
> numbers community prefers that they be transferred
> to an entity independent of the IANA Functions Operator
> in order to ensure that these assets are used in a
> non-discriminatory manner for the benefit of the entire community.
> 
> Although the protocol parameters proposal did not
> speak to this issue, in response to an ICG inquiry the
> protocol parameters community indicated that it
> had no objection and was willing to help contribute
> to that arrangement.[1]
> 
> The names proposal contains text that refers to the
> trademark in Annex S. In response to an ICG inquiry
> about the text, the CWG indicated that the text is clearly
> is clearly defined as placeholder text (in square brackets)
> within an initial draft proposed term sheet that does not
> have the consensus support of the CWG.[2] In effect,
> the names proposal did not make a specific proposal
> with regard to the IANA trademarks (and it is completely
> silent as regards the domain name). Since then, the CWG
> has confirmed that its position is consistent with that of
> the other two communities in that it has no objection to
> the IANA trademarks and the IANA domain names being
> transferred to an entity independent of the IANA Functions
> Operator.[3] These community positions are also
> consistent with the ICANN Board statement on the
> same topic.[4]
> 
> As a result, the ICG considers the three proposals to be compatible.
> While the requirements in the transition plan are therefore clear,
> work remains to actually implement the requirements.
> Detailed implementation requirements for the entity holding
> the IPR will be agreed and specified and an appropriate entity
> will then be created or selected such that it can meet the
> detailed requirements. The ICG notes that the operational
> communities are coordinating these details, and the ICG
> expects this coordination to continue during the
> implementation phase to ensure that the requirements are met.

The IETF trust framework proposal is below. It has been
taken from

https://mailarchive.ietf.org/arch/msg/ianaplan/gbPZgVdXAKIQKJRM1po6Nbod-6w

and is copied below:

> • From: Jari Arkko <jari.arkko at piuha.net>
> • To: "Ianaplan at Ietf. Org" <ianaplan at ietf.org>
> • Date: Fri, 18 Sep 2015 16:03:45 -0700
> • List-id: IANA Plan <ianaplan.ietf.org>
> 
> We have discussed trademarks and domains in the past, and came
> to a basic agreement. Meanwhile, the names community has also
> indicated that the “IPR in an independent entity” model is acceptable
> to them. But the details for any of this are left for implementation phase.
> That phase will take place once the overall transition plan goes forward.
> 
> The IETF Trust has worked in the background to understand the
> situation better, and obviously, if something needs to be done,
> ultimately there has to be agreements and concrete actions need
> to be taken. But before we are that far, we have to talk about the
> overall approach and find a common ground about the implementation
> with all three communities.
> 
> With this in mind, the Trust has written up a high-level
> description of what it believes the approach could be.
> We thought that this would be useful for both this WG
> as well as for communication with others.
> 
> Please see the description below. The Trust would
> appreciate any feedback you have. The goal is that
> after getting that feedback (and after revision as needed)
> we could have a description that can be used in discussing
> further implementation steps.
> 
> Jari
> 
> ---
> 
> As a part of their transition proposal, the Internet Number
> Community stated that it was their preference that the IANA
> trademark and iana.org domain would be transferred to an entity
> independent of the IANA Numbering Services Operator, and from their
> perspective the IETF Trust would be an acceptable candidate for this
> role.
> 
> On 8 February, the ICG asked the IETF and Internet Number Community
> to coordinate their transition proposals with regards to the
> trademarks and domains. Discussion in the IETF working group
> indicated that the proposals can be compatible.
> 
> At the request of the IANAPLAN WG the IETF Chair on 17 February 2015
> asked the IETF Trust whether the Trust would be willing to hold IANA
> intellectual property.  Citing Article 5.2 of the Trust Agreement
> whereby the Trust could hold rights in intellectual property and
> domain names relevant to the IETF, the Trustees on 19 February said
> they would be willing to hold the IANA intellectual property.  See
> http://trustee.ietf.org/documents/Trust-Minutes-2015-06-25-01.pdf
> 
> At the request of the IETF Chair the IETF Trust has engaged in
> discussions with the Internet Number Community about the possibility
> of the Trust assuming this responsibility.  The following is some
> background of the Trust’s position and an overview of how the role
> and responsibilities may be fulfilled.
> 
> While this fulfillment is a part of implementation rather than the
> ICG proposal currently out for public comment, the IETF Trust wants
> to ensure progress on determining those implementation steps. The
> Trust is of course only one of the possible ways to satisfy the
> requirements from the Internet Number Community. Nevertheless, the
> Trust wanted to start by suggesting an overall framework for one way
> of satisfying the requirements. There will be a time to discuss the
> details, but first it would be good to have an understanding if this
> overall framework is something that works for the relevant
> communities. This is only an early proposal. Feedback  and
> suggestions are very welcome.
> 
> The Trust believes it would need to enter into three different types
> of agreements to effect the transfer of the IANA intellectual
> property (IP) and to enter into licensing arrangements with the IANA
> service provider(s).
> 
> These agreements include:
> 
> 1.  An Agreement between ICANN and the IETF Trust transferring the
> IANA IP to the IETF Trust
> 
> 2.  Community Assurance Agreements between the IETF Trust and each
> of the names, numbers, and protocol communities (the IANA communities)
> regarding the Trust’s commitments to each as further described below, and
> 
> 3.  Agreement(s) whereby the IETF Trust provides for the use of the
> iana.org domain, or a subdomain, and licenses the use of the IANA
> trademarks to the IANA service provider(s) selected by the IANA
> communities.
> 
> The Trustees are open, in principle, to the idea of entering into
> these agreements. The Trust understands that each community
> would need to follow its own internal processes before entering
> into any agreements, or selecting an IANA service provider.
> 
> The Community Assurance Agreements with the IANA communities
> would establish and recognize the responsibilities for each community
> to identify and enter into agreement with their selected service provider,
> and for the IETF Trust to provide, update, and revoke licenses as needed to
> support these selections.
> 
> In order to preserve the value and integrity of the IANA trademarks,
> the IETF Trust would maintain, license and monitor the use of the
> trademarks.  Trust actions would include enforcement against
> unauthorized users and monitoring the quality and uses by the
> licensed user(s). The Trust would work with the relevant IANA
> communities to address issues involving a licensee before taking
> action to maintain the quality of the trademarks.
> 
> The exact details of the agreements would be subject to negotiation
> among the affected parties.
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