[council] Draft minutes of the GNSO Council meeting 15 March 2007

Tue Mar 20 11:49:52 UTC 2007

[To: Council[at]gnso.icann.org]

Dear Council Members,

Please find the draft minutes of the GNSO Council meeting on 15 March 2007.

Please let me know if you would like any changes made.

Thank you very much.
Kind regards,

Glen

5 March 2007

Proposed agenda and related documents

List of attendees:
Philip Sheppard - Commercial & Business Users C.
Mike Rodenbaugh - Commercial & Business Users C.
Alistair Dixon - Commercial & Business Users C
Greg Ruth - ISCPC
Antonio Harris - ISCPC
Tony Holmes - ISCPC
Thomas Keller- Registrars - absent apologies
Ross Rader - Registrars -absent
Bruce Tonkin - Registrars
Chuck Gomes - gTLD registries
Edmon Chung - gTLD registries - absent
Cary Karp - gTLD registries
Kristina Rosette - Intellectual Property Interests C
Ute Decker - Intellectual Property Interests C - absent apologies
Kiyoshi Tsuru - Intellectual Property Interests C - absent
Robin Gross - NCUC.
Norbert Klein - NCUC.
Mawaki Chango - NCUC - absent - apologies
Sophia Bekele - Nominating Committee appointee - absent -apology 
received after meeting
Jon Bing - Nominating Committee appointee
Avri Doria - Nominating Committee appointee- absent - apologies

13 Council Members
(14 Votes - quorum)

ICANN Staff
Dan Halloran - Deputy General Counsel
Sue Jonklaas - Regional Business Advisor, Asia-Pacific, General Counsel
Denise Michel - Vice President, Policy Development
Olof Nordling - Manager, Policy Development Coordination
Liz Williams - Senior Policy Counselor
Maria Farrell - GNSO Policy Officer
Karen Lentz - gTLD Registry Liaison
Glen de Saint Géry - GNSO Secretariat

Invited guests:
Jordyn Buchanan - WHOIS task force chair
Ram Mohan - GNSO IDN working group chair

Rita Rodin - ICANN Board member - absent - apologies

GNSO Council Liaisons
Suzanne Sene - GAC Liaison
Alan Greenberg - ALAC Liaison

Quorum present at 20:10 UTC.

MP3 Recording

Bruce Tonkin chaired this meeting

Approval of the agenda

Item 1: Update any Statements of Interest
No updates

Item 2: Approval of the GNSO Council minutes of 1 February 2007
Chuck Gomes moved the adoption of the GNSO Council minutes of 1 February 
2007

Motion approved.

Approval of the GNSO Council minutes of 1 February 2007

Decision 1: The GNSO Council minutes of 1 February 2007 were adopted.

Item 3: Working Group on "Protecting the rights of others"
- Ratify statement of work at:
http://www.gnso.icann.org/mailing-lists/archives/council/msg03230.html

- propose extension of deadline until May 2007

Kristina Rosette proposed a motion that the revised charter for the 
working group on "Protecting the rights of others" be adopted by the 
GNSO Council.

http://www.gnso.icann.org/mailing-lists/archives/council/msg03230.html

The motion passed by vote of acclamation.

Decision 2: The GNSO Council approved the revised charter for the 
working group on "Protecting the rights of others
Background

There is a new gTLD committee of the GNSO that is developing policy 
recommendations with respect to the introduction of new gTLDs. In 
addition to policy recommendations, the committee is also considering
guidelines that may assist the ICANN staff in preparing an application 
process, and also creating a framework agreement for registry operators.

The current registrar accreditation agreement requires that Registered 
Name Holders represent that, to the best of the Registered Name Holder's 
knowledge and belief, neither the registration of the Registered Name, 
nor the manner in which it is directly or indirectly used, infringes the 
legal rights of any third party. ICANN also has a Consensus Policy 
called the Uniform Dispute Resolution Policy (UDRP) that is intended for 
resolving disputes between the registrant and any third party over the 
registration and use of an Internet domain name.

In past new gTLD rounds, applicants for new gTLDs have been required to 
implement measures that discourage registration of domain names that 
infringe intellectual property rights; reserve specific names to prevent 
inappropriate name registrations; minimize abusive registrations; comply 
with applicable trademark and anti-cybersquatting legislation; and 
provide protections (other than exceptions that may be applicable during 
the start-up period) for famous name and trademark owners. There have 
been a range of approaches used which vary in terms of both cost to 
registrants and third parties affected by registration, and effectiveness.

As part of the new gTLD committee's deliberations, there has been some 
discussion about what additional protections beyond the current terms in 
the registration agreement and existing dispute resolution mechanisms
should be in place to the protect the legal rights of others during the 
domain name registration process, particularly during the initial start 
up of a new gTLD where there is contention for what Registrants perceive
as the "best" names.

Purpose:

The purpose of the working group is to:

(1) Document the additional protections implemented by existing gTLD 
operators beyond the current terms in the registration agreement and 
existing dispute resolution mechanisms to the protect the legal rights 
of others during the domain name registration process, particularly 
during the initial start up of a new gTLD where there is contention for 
what Registrants perceive as the "best" names. The documentation should 
identify the problems that the protections were intended to solve. The 
working group should establish definitions of terms used in this 
document to ensure a common understanding amongst members of the working 
group. These definitions would only be in the context of the document, 
and without prejudice to the meaning of these terms in other legal contexts.

(2) Determine whether to recommend to Council a best practices approach 
to providing any additional protections beyond the current registration 
agreement and UDRP policy for the legal rights of others during the
domain name registration process, particularly during the initial start 
up of a new gTLD where there is contention for what Registrants perceive 
as the "best" names. A best practices document could be incorporated 
into the material for the application process for new gTLD applicants. 
The GNSO could elect in future to use the policy development process 
(PDP) to create a Consensus Policy in this area.

Suggested Outline of Working Group Work Plan

I. Analyze Existing Rights Protection Mechanisms

A. Identify relevant existing TLDs (not limited to gTLDs)

B. Identify both issues that existing preventive mechanisms are designed 
to solve and new issues that may have developed

C. Describe existing rights protection mechanisms

1. Eligibility

2. Rights bases or requirements

3. Submission process and costs of submission

4. Review of applications

5. Challenge mechanism and cost of mechanism

D. Issues arising out of or related to the existing rights protection 
mechanisms

1. Eligibility

2. Rights bases or requirements

3. Review of applications

4. Allocation

E. Analyze Quantitative Effectiveness - relation between preventing the 
dispute and resolving the dispute

1. Define quantitative effectiveness in light of the issues identified 
in I.B.

2. Number of preventive registrations, number of preventive 
registrations vs. overall number of registrations; proportion of 
registrations that are purely defensive

3. Number of challenges overall and in relation to number of 
registrations; challenger success rate

4. Evaluate quantitative success in light of the issues identified in I.B.

F. Analyze Qualitative Effectiveness

1. Define qualitative success and set forth criteria for any evaluation 
in light of issues identified in I.B.

2. Nature of use of names registered during start up period

3. Whether rights protection mechanism process protects rights in a 
cost-effective manner in light of issues identified in I.B.

4. Evaluate qualitative effectivess in light of issues identified in I.B.

G. Impact on registries and registrars

1. Resource allocation

a) Development of rights protection mechanism

b) Implementation of rights protection mechanism

2. Other considerations

H. Impact on other affect parties

II. Identify Commonalities and Variances among existing rights 
protection mechanisms, including the evaluation by affected parties.

A. Eligibility Commonalities and Variances

B. Procedural Commonalities and Variances

1. Submission

2. Review

3. Challenge

C. Level of Satisfaction

1. Prior Rights Owners

2. Registrars

3. Registries

4. Other Categories

III. Scalability of rights protection mechanisms

A. Feasibility

Conclusions derived from I and II above -- effectiveness; impact on 
registrars, registries, and other affected parties; concerns of IP owner 
and holders of other rights

B. Implementation Considerations

IV. Identify and Evaluate Alternative Mechanisms

A. Alternatives

B. Evaluation

Suggested Working Group Membership

The following list sets out initial ideas for experts that would provide 
useful contributions. The list is neither binding nor enumerative.

* Owners of globally famous brands from different regions.
* INTA Internet Committee member
* Rights protection mechanism dispute panelist
* Non-profit educational or charitable organization representative
* Registrars with experience in preventive rights protection mechanisms
* Registries with experience in preventive rights protection mechanisms
* Representative from EURid or PWC, EURid validation agent
* Commercial financial institution representative (because of concerns 
over consumer protection and concerns related to fishing and identity theft)
* IPC designee
* NCUC designee
* ISP designee
* BC designee
* WIPO representative (given WIPO's expertise in evaluating existing 
rights protection mechanisms)

1. Voting:

In general, the working group should operate using a rough consensus 
approach. Every effort should be made to arrive at positions that most 
or all of the group members are willing to support. "Straw poll voting" 
should be used to determine whether there is rough consensus on 
particular issues. In order to ensure that each constituency does not 
have to provide the same number of members, constituencies, regardless 
of number of representatives, can hold 3 votes, and each individual 
nominating committee councilor hold one vote. Liaisons are non voting.

2. Membership

The Working Group is open for membership to Councilors and to GNSO 
Constituency members; advisory committees (e.g., ALAC, GAC) may appoint 
non-voting liaisons to the working group. Members may be added by the 
constituencies and the Advisory groups at any time during the work of 
the WG. The ccNSO could be invited to have representatives participate 
as observers because there may be implications for the treatment of the 
two letter country codes, which are presently reserved at all levels. 
The WG may invite external experts as speakers or advisors (in the role 
of observer) that may be able to constructively contribute to the effort.

Every effort should be made to ensure that the working group include and 
consider the varying points of view on key issues. It is more important 
that all varying points of view are examined and reflected than for
every constituency or group to have representation or equal numbers of 
members. If this goal is achieved and recommendations are developed that 
have rough consensus of the group, then the full Council, with balanced 
representation from all constituencies and NomCom appointees, will then 
have opportunity to act.

Members should be selected who can commit sufficient time during the 
next three-four months to facilitate achievement of the targeted 
accomplishments describe in the next section (Working Timeline).

The Council will appoint an initial or interim chair [or co-chairs] and 
the Working Group should, at its initial meeting, elect or confirm the 
chair and co-chair(s).

3. Working Timeline

The Working Group is asked to convene at the earliest possible time and 
to achieve the following targets:
1. Progress report at least one week prior to the start of the Lisbon 
ICANN meetings (16 March 2007).
2. Final report at least one week prior to the April 2007 GNSO Council 
meeting.

Timeline:

The working group should conclude its work in time to provide a report 
for the GNSO Council meeting in April 2007

Kristina Rosette proposed a procedural motion that the Council approve 
extending the timeline for the working group on the Protection of the 
Rights of Others from the end of April to May 17, in order for the 
report to be considered at the GNSO Council meeting on 24 May 2007.

The motion passed by vote of acclamation.

Decision 3: The Council extended the timeline for the working group on 
the Protection of the Rights of Others from the end of April to May 17, 
in order for the report to be considered at the GNSO Council meeting on 
24 May 2007.

Item 4: Observers in working groups

- Ratify observer rules for working groups at:
http://www.gnso.icann.org/mailing-lists/archives/council/msg03272.html
"Observers: Observers shall not be members of or entitled to vote on the 
working group, but otherwise shall be entitled to participate on equal 
footing with members of the working group. In particular observers will 
be able to join the mailing list, and attend teleconferences or physical 
meetings."

To guard against some of the behaviour that can occur with unregulated 
mailing lists, observers must provide their real name, organisation (if 
associated with an organisation) and contact details to the GNSO 
secretariat, and the GNSO secretariat will verify at least their email 
address and phone contact information. Observers will also be requested 
to provide a public statement of interest, as for working group members.

Where a person joins an already established working group, this will be 
on the basis that it is their responsibility to read the existing 
documents, listen to teleconference recordings, and read the mailing 
list discussions before commenting on topics that have already been 
dealt with by the working group.

During the discussion the following comments were highlighted:

The question was posed whether the working group structure was within 
the Council's scope to consider because there appeared to be a potential 
recommendation for modifying the current constituency structure, which 
belonged in the broader spectrum of GNSO improvements under consideration.

With regards to disruptive observer behaviour, it was suggested that the 
chair of the working group and the working group itself deal with such 
issues, and this measure failing, the issue could be raised for the 
Council to review and a sub-committee formed to consider the issue and 
make recommendations to the Council.
Private email exchange would be preferable to open list exchange in the 
case of obstructive or disruptive behaviour, while the suspension of a 
member should be undertaken with the agreement of the group.

Historical experience indicated that another form of sanction to be 
considered would be empowering the working group or task force chair to 
temporarily suspend posting rights for the offending member. While, in 
terms of a more permanent sanction, Council should make the decision as 
elected representatives.
Council should establish Working group procedures reserving the right to 
change if necessary.

Concern was expressed that not only was disruptive behaviour an issue, 
but that observers could deliberately shift the focus of the work to 
suit special interest groups. Balancing out requests for participation 
at the outset, so that no one group could dominate would be a way of 
preventing capture positions.

The number of participants in a working group should be flexible and 
could be managed by assigning the work to sub-groups. There should be 
relative flexibility with regard to who joins the working to the extent 
that it would be manageable as this would be favourably perceived by the 
community.
The working group should not be considered as a decision-making body.

In the case of late-comers to the group the responsibility should be on 
the individual to inform themselves of the prior work. There should be a 
cut off date for joining the group.

Bruce Tonkin seconded by Alistair Dixon proposed, endorsing the observer 
rules for working groups.

The motion passed by vote of acclamation.

Decision 4: The Council endorsed the observer rules for working groups.

"Observers: Observers shall not be members of or entitled to vote on the 
working group, but otherwise shall be entitled to participate on equal 
footing with members of the working group. In particular observers will 
be able to join the mailing list, and attend teleconferences or physical 
meetings."

To guard against some of the behaviour that can occur with unregulated 
mailing lists, observers must provide their real name, organisation (if 
associated with an organisation) and contact details to the GNSO 
secretariat, and the GNSO secretariat will verify at least their email 
address and phone contact information. Observers will also be requested 
to provide a public statement of interest, as for working group members.

Where a person joins an already established working group, this will be 
on the basis that it is their responsibility to read the existing 
documents, listen to teleconference recordings, and read the mailing 
list discussions before commenting on topics that have already been 
dealt with by the working group.

Council further recommended that the suggestions made during the 
meeting, should be ratified as further working procedures, at the 
following Council meeting on Wednesday 27 March 2007.

Item 5: Update progress from IDN working group
- report from Ram Mohan

Ram Mohan reported that the GNSO IDN working group, consisting of 30 
plus voting members and 5 observers had made excellent progress. There 
had been robust communication on the mailing list and during 
teleconferences. The group started in January with paired meetings twice 
a week, to accommodate different time zones but went to one call a week. 
The charter was to examine four key IDN-based documents, then to review 
a number of open policy items in order to arrive at some conclusions 
whether there were policy items requiring further investigation in a 
policy development process.
A draft outcomes report indicating areas of agreement and areas of 
support by the working group membership is due to be released to the 
Council on March 21 2007.

The group was productive in bringing together a wide range of 
individuals, with different levels of knowledge and experience, some who 
represented constituencies and others who partook in their own 
individual capacity.

Some of the IDN working groups' output has been reflected in the 
outcomes of the Reserved Names working group and the Protection of 
Rights of Others working group.

The chairs of the GAC IDN committee, and the ccNSO IDN working group, 
have liaised regularly and kept each other updated on their respective 
committees work. The GNSO IDN working group appointed one of its members 
as a liaison to the joint ccTLD-GAC working group on IDN. There was 
however no formal liaison with the President’s Advisory Committee on IDNs.

The report is due to be circulated to the ccNSO and the GAC working 
groups for their comments as well as to the President’s Advisory 
Committee on IDNs. The working group mandate has concluded after the 
last call on 20 March.

Item 6: Update from WHOIS task force
- final report
- meeting with GAC in Lisbon
- next steps - possible implementation working group

Jordyn Buchanan reported that the WHOIS task force had issued its final 
report. The task force recommended a set of policy recommendations in 
the form of the OPoC proposal,
supported by a majority on the task force which are the recommendations 
of the task force.
A minority position was endorsed by three of the constituency’s 
representatives.
Summary of the task force recommendations:
The amount of information that is displayed in the WHOIS system for the 
registrant is significantly reduced.The only information that would be 
displayed would be the registrants name, information about the country 
and technical information about the domains.

The administrative and technical contact would be replaced by a new form 
of contact called the Operational Point of Contact. That person would be 
responsible for resolving or passing on information to help to resolve 
any operational issues within the domain.

Changes include the way complaints about accuracy are handled. A 
requirement is introduced that registrars, upon discovering the 
information or upon being notified that the information is inaccurate, 
and confirming that to be so, actually, either suspend the domain name 
or delete it.

There are changes that require the registrar to verify, that the email 
address that's provided in response to a complaint to update the 
information actually works and is responded to by whoever the contact is.

There was a strong minority that had a different set of policy 
recommendations that have also been included in the report, called the 
Special Circumstances proposal.

This proposal doesn’t change the default information that's displayed in 
WHOIS.

If information in WHOIS were used for a specific bad purpose by some 
third party, it would allow a registrant to request their information be 
removed from WHOIS.

That request would be evaluated by a third party based on the set of 
criteria, and if the criteria were met, the registrant information would 
be removed from WHOIS.

One other point worth noting, in the terms of reference was if the 
information that was displayed in WHOIS were changed, there should be an 
alternative means of getting access to that information. There were not 
clear proposals on how to deal with this particular issue other than 
simply contact the registrar and obtain the information that way.

The current report finalizes the rest of the terms of reference and The 
work of the WHOIS task force has concluded.

Bruce Tonkin thanked Jordyn Buchanan and the WHOIS task force for their 
long and sustained work.
The following steps would be to consider forming an implementation 
working group.

Chuck Gomes commented that the registries would oppose implementing the 
OPoC proposal before a solution to access had been resolved.
Philip Sheppard expressed concern about the language used to describe 
the outcomes of the report about the characterization of minority report 
as being basically, three constituencies, representative of thousands of 
people, of thousands of organizations around the world, being 
characterized in that way.The reason why some voted against was that 
there was a substantial list of unresolved issues.

Maria Farrell clarified that the staff was preparing a document on 
potential implementation issues arising from the task force 
recommendation of the OPoC proposal, and the Special Circumstances 
proposal, to clarify outstanding issues in both proposals.

Bruce Tonkin commented that it would be useful for the groups who have 
opposed the supermajority to articulate what they consider as difficult 
to accept as Council should identify the remaining issues that might be 
solvable in an attempt to increase the majority.

Bruce Tonkin proposed working on further improvements to the OPoC and 
the special circumstances separately, with the Opoc proposal being 
considered first, on that basis that the two proposals were not mutually 
exclusive. The further work on OpoC could be done via an implementation 
working group – similar to that used to finalise the recommendations of 
the transfers task force before submitting them to the Board.

Suzanne Sene commented that the GAC would be interested in better 
understanding what the Council intended to do with the task force report 
and the next steps that lay ahead.

Item 7: Update on PDP-Feb 06 - contractual conditions for existing gTLDs
- final report
- summary of any consensus recommendations

Liz Williams reported that the draft final task force report on the 
PDP-Feb 06 - contractual conditions for existing gTLDs had been 
published for public comment which will run through to 28 March 2007.

The policy recommendations are:

There should be a policy guiding registry agreement renewal.

1A.2 Registry agreements should be a commercially reasonable length.

2A The present limitations to Consensus Policies are appropriate and 
should continue.

2B Certain policy making responsibility should be delegated to the 
sponsored gTLD operators.

4A In order to improve ICANN accountability and effective business 
planning by registries, ICANN staff should immediately implement a 
system that avoids individual negotiations of ICANN fees and provides 
consistency unless there is an established justification for disparate 
treatment.

4B The ICANN Board should establish a Task Force or Advisory Committee 
to examine budgeting issues, including the manner and allocation of 
revenue collection, budget oversight and budget approval processes. This 
group should solicit and review public comments on the issues.

5 In order to determine whether there is a need for a new consensus 
policy on the collection and use of registry data, including traffic 
data, for purposes other than which is was collected, there is first a 
need for a properly targeted study by an independent third party on the 
data collected and the uses to which it is put.

The study should provide appropriate safeguards to protect any data 
provided for the purposes of the study, and the confidentiality of which 
registry, or other group, provides the data. The findings of the study 
should be published and available for public review. A Statement of Work 
should be developed by the GNSO Council, with appropriate public review, 
to cover an analysis of the concerns for data collection and use, the 
practice involved in collection and use of data - including traffic 
data, and the availability, when appropriate, for non-discriminatory 
access to that data.

It is recommended that a current processes document be developed, 
describing the current registry practices for the collection of data and 
the uses of that data, for example, but not limited to, operating the 
registry; preparing marketing materials to promote registration of 
domain names; gathering of 'null' returns, ensuring the integrity of the 
Registry, or the DNS. This report should be available to the group doing 
the external study and should be made available to the public for comment.

After examining the results of the independent study and public 
discussions recommended above, the GNSO Council should examine the 
findings and determine what, if any, further policy process is required.

6A ICANN should establish baseline requirements for the security and 
stability of registries and anything above that would be negotiated on a 
case-by-case basis, if necessary. Baseline requirements should be 
recommended to the Board by the Security and Stability Advisory 
Committee (SSAC) after consultation with the gTLD registry operators. In 
determining those recommendations, the SSAC should solicit and consider 
public comments.

The Council is not expected to take action on the report until after the 
Lisbon meeting at the conclusion of the public comment period on 28 
March 2007.

Item 8: Update on PDP-Dec 05 - new gTLDs

- status of report for Lisbon

- meeting with GAC in Lisbon

- further work to be done

The draft final report on the PDP-Dec 05 - new gTLDs has been published

3 elements of work still need to be concluded:

- A discussion on dispute resolutions to understand the options was 
proposed for the GNSO new gTLD committee.

- The work of the Reserved Names and the Protection of Rights of Others 
working group which would provide input to the new gTLDS process.

- The elements that relate to string criteria would be reviewed in light 
of any final GAC principles relating to new gTLDs.

Item 9: Update progress from Reserved Names working group
- report from Chuck Gomes

Chuck Gomes reported that the Reserved Names working group had concluded 
its work and published a report to meet the deadline 16 March, for 
consideration during the New gTLD committee work in Lisbon.

Bruce Tonkin clarified that procedurally, the GNSO Council does not need 
to wait for the GAC to provide its recommendations. The Council, could 
complete the work, submit it to the Board which may then receive GAC input.

Item 10: GNSO Board election

- Bruce Tonkin hand over the chair, and will not participate as a 
Council member

- update from staff on next steps

- opportunity for Council and constituency leadership to interview
candidates

Bruce Tonkin handed the Chair to Philip Sheppard the past chair of the 
Council.
Philip Sheppard referred to the election procedures and the candidate's 
statement .

Philip Sheppard proposed an interactive session during the Lisbon 
meetings to interview Bruce Tonkin, the only candidate for the position 
and to further proceed with the scheduled election procedures.

Philip Sheppard handed the chair back to Bruce Tonkin.

Bruce Tonkin formally closed the meeting and thanked everyone for their 
participation.

The meeting ended: 21 :40 UTC

Next GNSO Council meeting will be in the Corinthia hotel in Lisbon on 27 
March 2007 at 10:30 UTC.
see: Calendar

Summary of Work Items arising from the minutes:

1.Compile the suggestions for observer participation in working groups 
and present for ratification at the next Council meeting.

2. Schedule working group meetings in Lisbon as well as a session for 
dispute resolution options

3. Schedule an Interactive session during the Lisbon meetings to 
interview Bruce Tonkin, candidate for Board seat 13. 5 March 2007

Proposed agenda and related documents

List of attendees:
Philip Sheppard - Commercial & Business Users C.
Mike Rodenbaugh - Commercial & Business Users C.
Alistair Dixon - Commercial & Business Users C
Greg Ruth - ISCPC
Antonio Harris - ISCPC
Tony Holmes - ISCPC
Thomas Keller- Registrars - absent apologies
Ross Rader - Registrars -absent
Bruce Tonkin - Registrars
Chuck Gomes - gTLD registries
Edmon Chung - gTLD registries - absent
Cary Karp - gTLD registries
Kristina Rosette - Intellectual Property Interests C
Ute Decker - Intellectual Property Interests C - absent apologies
Kiyoshi Tsuru - Intellectual Property Interests C - absent
Robin Gross - NCUC.
Norbert Klein - NCUC.
Mawaki Chango - NCUC - absent - apologies
Sophia Bekele - Nominating Committee appointee - absent -apology 
received after meeting
Jon Bing - Nominating Committee appointee
Avri Doria - Nominating Committee appointee- absent - apologies

13 Council Members
(14 Votes - quorum)

ICANN Staff
Dan Halloran - Deputy General Counsel
Sue Jonklaas - Regional Business Advisor, Asia-Pacific, General Counsel
Denise Michel - Vice President, Policy Development
Olof Nordling - Manager, Policy Development Coordination
Liz Williams - Senior Policy Counselor
Maria Farrell - GNSO Policy Officer
Karen Lentz - gTLD Registry Liaison
Glen de Saint Géry - GNSO Secretariat

Invited guests:
Jordyn Buchanan - WHOIS task force chair
Ram Mohan - GNSO IDN working group chair

Rita Rodin - ICANN Board member - absent - apologies

GNSO Council Liaisons
Suzanne Sene - GAC Liaison
Alan Greenberg - ALAC Liaison

Quorum present at 20:10 UTC.

MP3 Recording

Bruce Tonkin chaired this meeting

Approval of the agenda

Item 1: Update any Statements of Interest
No updates

Item 2: Approval of the GNSO Council minutes of 1 February 2007
Chuck Gomes moved the adoption of the GNSO Council minutes of 1 February 
2007

Motion approved.

Approval of the GNSO Council minutes of 1 February 2007

Decision 1: The GNSO Council minutes of 1 February 2007 were adopted.

Item 3: Working Group on "Protecting the rights of others"
- Ratify statement of work at:
http://www.gnso.icann.org/mailing-lists/archives/council/msg03230.html

- propose extension of deadline until May 2007

Kristina Rosette proposed a motion that the revised charter for the 
working group on "Protecting the rights of others" be adopted by the 
GNSO Council.

http://www.gnso.icann.org/mailing-lists/archives/council/msg03230.html

The motion passed by vote of acclamation.

Decision 2: The GNSO Council approved the revised charter for the 
working group on "Protecting the rights of others
Background

There is a new gTLD committee of the GNSO that is developing policy 
recommendations with respect to the introduction of new gTLDs. In 
addition to policy recommendations, the committee is also considering
guidelines that may assist the ICANN staff in preparing an application 
process, and also creating a framework agreement for registry operators.

The current registrar accreditation agreement requires that Registered 
Name Holders represent that, to the best of the Registered Name Holder's 
knowledge and belief, neither the registration of the Registered Name, 
nor the manner in which it is directly or indirectly used, infringes the 
legal rights of any third party. ICANN also has a Consensus Policy 
called the Uniform Dispute Resolution Policy (UDRP) that is intended for 
resolving disputes between the registrant and any third party over the 
registration and use of an Internet domain name.

In past new gTLD rounds, applicants for new gTLDs have been required to 
implement measures that discourage registration of domain names that 
infringe intellectual property rights; reserve specific names to prevent 
inappropriate name registrations; minimize abusive registrations; comply 
with applicable trademark and anti-cybersquatting legislation; and 
provide protections (other than exceptions that may be applicable during 
the start-up period) for famous name and trademark owners. There have 
been a range of approaches used which vary in terms of both cost to 
registrants and third parties affected by registration, and effectiveness.

As part of the new gTLD committee's deliberations, there has been some 
discussion about what additional protections beyond the current terms in 
the registration agreement and existing dispute resolution mechanisms
should be in place to the protect the legal rights of others during the 
domain name registration process, particularly during the initial start 
up of a new gTLD where there is contention for what Registrants perceive
as the "best" names.

Purpose:

The purpose of the working group is to:

(1) Document the additional protections implemented by existing gTLD 
operators beyond the current terms in the registration agreement and 
existing dispute resolution mechanisms to the protect the legal rights 
of others during the domain name registration process, particularly 
during the initial start up of a new gTLD where there is contention for 
what Registrants perceive as the "best" names. The documentation should 
identify the problems that the protections were intended to solve. The 
working group should establish definitions of terms used in this 
document to ensure a common understanding amongst members of the working 
group. These definitions would only be in the context of the document, 
and without prejudice to the meaning of these terms in other legal contexts.

(2) Determine whether to recommend to Council a best practices approach 
to providing any additional protections beyond the current registration 
agreement and UDRP policy for the legal rights of others during the
domain name registration process, particularly during the initial start 
up of a new gTLD where there is contention for what Registrants perceive 
as the "best" names. A best practices document could be incorporated 
into the material for the application process for new gTLD applicants. 
The GNSO could elect in future to use the policy development process 
(PDP) to create a Consensus Policy in this area.

Suggested Outline of Working Group Work Plan

I. Analyze Existing Rights Protection Mechanisms

A. Identify relevant existing TLDs (not limited to gTLDs)

B. Identify both issues that existing preventive mechanisms are designed 
to solve and new issues that may have developed

C. Describe existing rights protection mechanisms

1. Eligibility

2. Rights bases or requirements

3. Submission process and costs of submission

4. Review of applications

5. Challenge mechanism and cost of mechanism

D. Issues arising out of or related to the existing rights protection 
mechanisms

1. Eligibility

2. Rights bases or requirements

3. Review of applications

4. Allocation

E. Analyze Quantitative Effectiveness - relation between preventing the 
dispute and resolving the dispute

1. Define quantitative effectiveness in light of the issues identified 
in I.B.

2. Number of preventive registrations, number of preventive 
registrations vs. overall number of registrations; proportion of 
registrations that are purely defensive

3. Number of challenges overall and in relation to number of 
registrations; challenger success rate

4. Evaluate quantitative success in light of the issues identified in I.B.

F. Analyze Qualitative Effectiveness

1. Define qualitative success and set forth criteria for any evaluation 
in light of issues identified in I.B.

2. Nature of use of names registered during start up period

3. Whether rights protection mechanism process protects rights in a 
cost-effective manner in light of issues identified in I.B.

4. Evaluate qualitative effectivess in light of issues identified in I.B.

G. Impact on registries and registrars

1. Resource allocation

a) Development of rights protection mechanism

b) Implementation of rights protection mechanism

2. Other considerations

H. Impact on other affect parties

II. Identify Commonalities and Variances among existing rights 
protection mechanisms, including the evaluation by affected parties.

A. Eligibility Commonalities and Variances

B. Procedural Commonalities and Variances

1. Submission

2. Review

3. Challenge

C. Level of Satisfaction

1. Prior Rights Owners

2. Registrars

3. Registries

4. Other Categories

III. Scalability of rights protection mechanisms

A. Feasibility

Conclusions derived from I and II above -- effectiveness; impact on 
registrars, registries, and other affected parties; concerns of IP owner 
and holders of other rights

B. Implementation Considerations

IV. Identify and Evaluate Alternative Mechanisms

A. Alternatives

B. Evaluation

Suggested Working Group Membership

The following list sets out initial ideas for experts that would provide 
useful contributions. The list is neither binding nor enumerative.

* Owners of globally famous brands from different regions.
* INTA Internet Committee member
* Rights protection mechanism dispute panelist
* Non-profit educational or charitable organization representative
* Registrars with experience in preventive rights protection mechanisms
* Registries with experience in preventive rights protection mechanisms
* Representative from EURid or PWC, EURid validation agent
* Commercial financial institution representative (because of concerns 
over consumer protection and concerns related to fishing and identity theft)
* IPC designee
* NCUC designee
* ISP designee
* BC designee
* WIPO representative (given WIPO's expertise in evaluating existing 
rights protection mechanisms)

1. Voting:

In general, the working group should operate using a rough consensus 
approach. Every effort should be made to arrive at positions that most 
or all of the group members are willing to support. "Straw poll voting" 
should be used to determine whether there is rough consensus on 
particular issues. In order to ensure that each constituency does not 
have to provide the same number of members, constituencies, regardless 
of number of representatives, can hold 3 votes, and each individual 
nominating committee councilor hold one vote. Liaisons are non voting.

2. Membership

The Working Group is open for membership to Councilors and to GNSO 
Constituency members; advisory committees (e.g., ALAC, GAC) may appoint 
non-voting liaisons to the working group. Members may be added by the 
constituencies and the Advisory groups at any time during the work of 
the WG. The ccNSO could be invited to have representatives participate 
as observers because there may be implications for the treatment of the 
two letter country codes, which are presently reserved at all levels. 
The WG may invite external experts as speakers or advisors (in the role 
of observer) that may be able to constructively contribute to the effort.

Every effort should be made to ensure that the working group include and 
consider the varying points of view on key issues. It is more important 
that all varying points of view are examined and reflected than for
every constituency or group to have representation or equal numbers of 
members. If this goal is achieved and recommendations are developed that 
have rough consensus of the group, then the full Council, with balanced 
representation from all constituencies and NomCom appointees, will then 
have opportunity to act.

Members should be selected who can commit sufficient time during the 
next three-four months to facilitate achievement of the targeted 
accomplishments describe in the next section (Working Timeline).

The Council will appoint an initial or interim chair [or co-chairs] and 
the Working Group should, at its initial meeting, elect or confirm the 
chair and co-chair(s).

3. Working Timeline

The Working Group is asked to convene at the earliest possible time and 
to achieve the following targets:
1. Progress report at least one week prior to the start of the Lisbon 
ICANN meetings (16 March 2007).
2. Final report at least one week prior to the April 2007 GNSO Council 
meeting.

Timeline:

The working group should conclude its work in time to provide a report 
for the GNSO Council meeting in April 2007

Kristina Rosette proposed a procedural motion that the Council approve 
extending the timeline for the working group on the Protection of the 
Rights of Others from the end of April to May 17, in order for the 
report to be considered at the GNSO Council meeting on 24 May 2007.

The motion passed by vote of acclamation.

Decision 3: The Council extended the timeline for the working group on 
the Protection of the Rights of Others from the end of April to May 17, 
in order for the report to be considered at the GNSO Council meeting on 
24 May 2007.

Item 4: Observers in working groups

- Ratify observer rules for working groups at:
http://www.gnso.icann.org/mailing-lists/archives/council/msg03272.html
"Observers: Observers shall not be members of or entitled to vote on the 
working group, but otherwise shall be entitled to participate on equal 
footing with members of the working group. In particular observers will 
be able to join the mailing list, and attend teleconferences or physical 
meetings."