[Gac-gnso-cg] Charter v.5 -- incorporating revisions from last week - review for possible final approval on the next call

Mon Jan 27 17:54:40 UTC 2014

Thanks Suzanne,

That is indeed helpful and seems to me to be a reasonable basis on which to
retain the wording of the illustrative example.

Jonathan

From: Suzanne Radell [mailto:SRadell at ntia.doc.gov] 
Sent: 27 January 2014 16:16
To: Mike O'Connor; Jonathan Robinson
Cc: GAC-GNSO-CG at icann.org
Subject: RE: [Gac-gnso-cg] Charter v.5 -- incorporating revisions from last
week - review for possible final approval on the next call

Good morning, everyone.  I thought it might be useful to provide some
additional background information with regard to the reference to the
Morality and Public Order issue, as per Jonathan's comment.  The GNSO
recommendation on this issue was ultimately determined to be
unimplementable, as it was premised on a misinterpretation of the provisions
using the same terminology in the Paris Convention.  The GAC provided
briefings to the ICANN Board over the course of several meetings explaining
that the particular provision in the Paris Convention provided signatory
countries with the basis for an exemption to the terms of the Convention;
for example, a signatory country could determine not to provide trademark
protection if it determined, based on its national laws, that doing so would
be inconsistent with public order and morality.  As such, the provisions
cannot be transformed into an affirmative basis for any kind of finding with
international meaning (which is what the GNSO recommendation entailed).  The
Board ultimately accepted the GAC's argument that there is no agreed
international standard of what constitutes morality and public order, and
the original recommendation was modified.

I hope this helps clarify why this particular issue is cited.

I do have a few minor edits to the opening para for everyone to consider;
hope they're not too late.  Thanks in advance, Suz

Suzanne Murray Radell

Senior Policy Advisor, NTIA/OIA

202-482-3167

From: gac-gnso-cg-bounces at icann.org [mailto:gac-gnso-cg-bounces at icann.org]
On Behalf Of Mike O'Connor
Sent: Monday, January 27, 2014 7:42 AM
To: Jonathan Robinson
Cc: GAC-GNSO-CG at icann.org
Subject: Re: [Gac-gnso-cg] Charter v.5 -- incorporating revisions from last
week - review for possible final approval on the next call

hi all,

let's try to resolve these late-breaking refinements on the list if we can.

does anybody have any objection to Jonathan's points?  or anything else in
the v.5 draft?  i'll wait until tomorrow morning and then fold the results
of that discussion into a draft for the call.

mikey

On Jan 27, 2014, at 6:06 AM, Jonathan Robinson
<jonathan.robinson at ipracon.com> wrote:

Thanks Mikey,

This seems to me to be good work and, hopefully, in a position to be now
agreed by our group and then shared more broadly.

A couple of interventions, the lateness of which I apologise in advance for.
That said, I do not anticipate that they are material.

As follows:

1.      The larger or longer term implication is that ICANN's PDPs fail to
take government public policy concerns into sufficient account at an early
stage so they can be incorporated into the proposals that are forwarded to
the Board for approval.

2.	Ultimately more efficient PDPs

Also when it comes to the following point, how certain are we of the
following?

We're now at a point where there is broader awareness that some GNSO
proposals that have been approved by the Board contained concepts that were
inconsistent with existing laws, treaties, etc.  A good example of this is
the Public Order and Morality proposals contained in the original GNSO new
gTLD recommendations, which were unworkable 

a)      Could we substitute "were inconsistent" "may be inconsistent" .  To
me it seems that we capture the principle without being potentially being
provocative.

b)      Similarly, how certain are we of the fact that the proposals were
unworkable?  If that's established and universally agreed (I do not know)
then OK.  If not, perhaps we are better off stripping out the example.

Apologies to all again for coming in so late on this.  These points struck
me on final proofing of you v. 5 draft.

Jonathan

From: gac-gnso-cg-bounces at icann.org [mailto:gac-gnso-cg-bounces at icann.org]
On Behalf Of Mike O'Connor
Sent: 26 January 2014 16:18
To: GAC-GNSO-CG at icann.org
Subject: [Gac-gnso-cg] Charter v.5 -- incorporating revisions from last week
- review for possible final approval on the next call

hi all,

i've attached draft Charter v.5 - which folds in the comments i saw on the
list.  

i've chosen to include the email-thread about Mark's suggestions because
that was a pretty substantial conversation and i thought you might find it
helpful to have it for reference.

do note that i ever so slightly modified Mark's suggestion.  partly by where
i placed it in the existing language, partly in breaking it into two
paragraphs, and partly by changing the first sentence.  *I* don't think i've
done any damage with my changes, but you should all look closely to see if
you agree.  :-)

mikey

PHONE: 651-647-6109, FAX: 866-280-2356, WEB: www.haven2.com, HANDLE:
OConnorStP (ID for Twitter, Facebook, LinkedIn, etc.) 

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