[council] Proposed Response to the GAC regarding November 28th Letter
Mason Cole
mcole at 5x5com.com
Mon Dec 10 21:39:53 UTC 2012
I support Jeff's approach as well. And Thomas makes good suggestions.
One observation on a recommendation by Thomas -- I'm not sure we should ask the GAC for its interpretation of policy vs implementation. I don't know that they would provide it in the first place. More to the point, as Jeff correctly points out in his draft, there's no real test for it -- it's implied generally by the outcomes of our work and isn't formally a filter for part of decision-making. If the community decides later that it should be, that's one thing. Imposing it is another. So if we're going to ask the GAC about it, I prefer not to do it here -- it will bog down this process, and I believe it should be dealt with as a stand-alone issue.
On Dec 6, 2012, at 2:03 PM, Thomas Rickert wrote:
> Jeff, Jonathan, all,
> first of all, thank you Jeff and your colleagues for a well written and thoughtful draft letter.
>
> Following Jonathan's proposal, let me respond as follows:
>
> 1. Is the approach taken below one which you broadly do or do not support?
>
> I do support that aproach.
>
> 2. If yes to 1 above, please indicate if there are any additional areas not covered or areas that could be improved?
>
> A.
>
> I think it would be helpful to add some history, which we have discussed this during the IGO-INGO WG call. We might want to point out that the Reserved Names WG has dealt with this issue a few years back and - while not particularly having discussed the IOC RCRC, there was an intentional decision not to add such designations to the reserved names list. The group wanted to leave the protection to the RPMs.
>
> This point should be made IMHO because it underlines that this is a topic that has been part of policy making in the past and that it should not be dealt with differently. Even the IOC, in its letter of February 11, 2011, made a statement that clearly indicates that merely reserving the names is not in their interest and that an exemption procedure is needed, which requires policy work:
>
> <PastedGraphic-1.pdf>
>
>
> The letter can be found here: http://www.icann.org/en/correspondence/lacotte-stupp-to-pritz-stathos-01feb11-en.pdf
> B.
>
> Also, I would recommend we state that the original request was made regarding the IOC and RCRC only while stating that these organizations have a unique tapestry of protections, while it has now been opened to other IGO names. Hence, there must be some understanding that changing requirements require more time of analysis.
>
> C.
>
> ICANN's aim is to be globally inclusive and to serve all stakeholders. That means that, while we take the GAC's concerns and requests (not sure I would call it advice here since GAC Advice is a legal term reserved to the interaction with the Board in my view) seriously, it is imperative for the GNSO being ICANN's BUMS policy making body to also hear the arguments of other stakeholders prior to making recommendations. This is to ensure that legitimate interests of other stakeholders (e.g. legitimate use of designations in question) are also basis for a decision.
>
> D.
>
> In Jeff's proposal it is stated:
>
> Perhaps we are misunderstanding the distinction between “policy” and “implementation” drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point.
>
> I would prefer not to give the impression that WE might be misunderstanding something, but rather invite the GAC to explain their understanding of the distinction between "policy" and "implementation" and that this will help the mutual understanding of approach and processes.
>
> E.
>
> We might wish to make reference to the point mentioned in the joint GAC / Board meeting that this topic shall serve as a case study and therefore invite the GAC to participate in the WG or present the idea of a Liaison, which was recently discussed.
>
> Thanks,
> Thomas
>
>
> Am 06.12.2012 um 19:51 schrieb "Neuman, Jeff" <Jeff.Neuman at neustar.us>:
>
>> Thanks. We did consider adding something like this to our draft letter, but in the end decided not to. It simply isn’t enough or helpful (in our view) to say the GNSO considered policy development activities on this because the board told us to do so in their resolution. After all, then it could be argued by others that the Board acted erroneously in telling us to consider it in the first place.
>>
>> We wanted in a respectful way to point out that this does in fact involve policy, and we are the appropriate body to consider the policy issues, whether the Board tells us to or not.
>>
>> Jeffrey J. Neuman
>> Neustar, Inc. / Vice President, Business Affairs
>>
>>
>> From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Jonathan Robinson
>> Sent: Thursday, December 06, 2012 1:42 PM
>> To: 'Brian Peck'; council at gnso.icann.org
>> Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter
>>
>> Many thanks Brian. That’s helpful. Jonathan
>>
>> From: Brian Peck [mailto:brian.peck at icann.org]
>> Sent: 06 December 2012 17:15
>> To: Jonathan Robinson; 'Neuman, Jeff'; council at gnso.icann.org
>> Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter
>>
>> Jonathan,
>>
>> In response to your question in relation to responding to the GAC on the issue of what was the impetus for the Council to take up the work on the IGO name protection issue, it may be helpful to note as background that the Board in its 11 March 2012 letter formally asked both the GAC and the GNSO Council for policy advice on the protection of IGO names:
>>
>> http://www.icann.org/en/news/correspondence/crocker-beckstrom-to-dryden-van-gelder-11mar12-en.pdf
>>
>> In addition, some of the other considerations taken into account for the Council requesting the Issues Report on the protection of International Organization names to include IGO names – including requests from IGOs to obtain the same level of of any protections provided to the RCRC and IOC, are noted in the motion adopted to request the Issues Report:
>>
>> http://gnso.icann.org/en/meetings/minutes-council-12apr12-en.htm
>>
>> Thanks.
>>
>> Best Regards,
>>
>> Brian
>>
>>
>> On 12/6/12 3:08 AM, "Jonathan Robinson" <jonathan.robinson at ipracon.com> wrote:
>>
>> Jeff,
>>
>> Many thanks to you and your colleagues for such a considered and comprehensive first draft. I had thought about trying to draw out key principles from discussion on the list and then drafting.
>> This approach takes it a step further and faster. Great.
>>
>> Rather than collectively editing the text at this point, I suggest that councillors respond along the following lines:
>>
>> 1. Is the approach taken below one which you broadly do or do not support?
>>
>> 2. If yes to 1 above, please indicate if there are any additional areas not covered or areas that could be improved?
>>
>> 3. If no to 1 above, please explain why and how you suggest we approach this differently?
>>
>> 4. Are there any other substantive points not already covered in the letter and not covered in your responses to 1-3 above?
>>
>>
>> I trust this will provide a structure for input before we go into a final drafting mode. Once we have been through this iteration, we can work on an approach which tweaks the final text.
>>
>> One overall question I have relates to the question posed by the GAC and implicit in our (draft) response to it below. Both seem to suggest (or presume) we have chosen as a Council to undertake this policy work. Is this actually the case (i.e. did we independently determine to undertake this work) or does the history indicate that we are in fact responding to a request from board (or elsewhere)? Mason helpfully provided sketched series of events on Friday last week but it is not 100% clear where the primary impetus for the GNSO undertaking this policy work came from? In any event, but along these lines, is it helpful or provocative to provide a sketch timeline of the key steps in this long process? As an appendix to the letter perhaps?
>>
>> Thank-you again Jeff and please indicate whether or not you are willing to / would like to continue to hold the pen on this?
>>
>> Jonathan
>>
>>
>> From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Neuman, Jeff
>> Sent: 05 December 2012 22:42
>> To: council at gnso.icann.org
>> Subject: [council] Proposed Response to the GAC regarding November 28th Letter
>>
>> All,
>>
>> In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on.
>>
>> This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues.
>>
>> Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response.
>>
>> Thanks!
>>
>>
>> +++++++++++++++++++++++++++++++++++++++
>>
>> Dear Madam Chair:
>>
>> I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO’s determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations “in all gTLDs.”
>>
>> We are not aware of a bright line test to distinguish “policy” from “implementation” in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN’s multi-stakeholder processes. For purposes of responding to your letter, however, the term “policy development” has traditionally applied to ICANN’s consideration of an issue that is within the scope of ICANN’s mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations (“IGO’s”) and international non-governmental organizations (“INGO’s”) at the top and second level meets the criteria described above.
>>
>> We do not dispute the validity of the GAC’s advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee (“IOC”) and the Red Cross/Red Crescent (“RC/RC”) names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws – like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context – particularly at the second level and in both new and existing TLDs.
>>
>> Likewise, we do not dispute the validity of the GAC’s advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is “complementary” to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO’s acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant’s potential use of the applied-for gTLD would be likely to infringe the objector’s existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time – including quite recently.
>>
>> The GNSO believes that the issues identified above fall within the definition of “policy” used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board’s recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work.
>> Perhaps we are misunderstanding the distinction between “policy” and “implementation” drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary.
>>
>>
>>
>>
>> Jeffrey J. Neuman
>> Neustar, Inc. / Vice President, Business Affairs
>> 46000 Center Oak Plaza, Sterling, VA 20166
>> Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / jeff.neuman at neustar.biz <mailto:jeff.neuman at neustar.biz> / www.neustar.biz<http://www.neustar.biz/>
>>
>
> ___________________________________________________________
> Thomas Rickert, Attorney at Law
>
> Managing Partner, Schollmeyer & Rickert Rechtsanwaltsgesellschaft mbH
> www.anwaelte.de
>
> Director Names & Numbers, eco Association of the German Internet Industry
> www.eco.de
>
>
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