[gnso-gac-closed-generics] Separate, second comment period needed [short paper]

Nigel Hickson nigel.hickson at dcms.gov.uk
Wed May 31 06:51:47 UTC 2023 

Good morning

Would also like; as Jason, to thank Kathy, Alan and Greg for this
thoughtful and important Paper.

They indeed make a powerful and coherent argument for a separate and
distinct comment period for Closed Generics where it becomes crystal clear
that an application being looked at is a CG.  Also agree that this specific
comment period (which as Kathy notes should not unduly delay the process)
could be supplemented by a specific webpage that notes the "Framework" that
has been developed for CGs while listing applications.

best

Nigel



On Tue, 30 May 2023 at 18:07, Merritt, Jason (ISED/ISDE) <
Jason.Merritt at ised-isde.gc.ca> wrote:

> Thank you Kathy, Greg, Alan for putting together this comprehensive
> analysis document and sharing with the group.
>
>
>
> A second, stand alone comment period for closed generic applications is
> essential. In my view, the overall framework is showing some weakness in
> being able to address a number of key issues and concerns in both the
> ‘application’ and ‘evaluation’ phases. Respectfully, I feel that omitting a
> second comment period in this final phase would complete a trifecta of
> shortcomings.
>
>
>
> Jason
>
>
>
> *From:* gnso-gac-closed-generics <
> gnso-gac-closed-generics-bounces at icann.org> *On Behalf Of *Kathy Kleiman
> *Sent:* May 30, 2023 10:33 AM
> *To:* gnso-gac-closed-generics at icann.org; Melissa Peters Allgood <
> melissa.allgood at icann.org>
> *Subject:* [gnso-gac-closed-generics] Separate, second comment period
> needed [short paper]
>
>
>
> Hi Melissa and All,
>
> Last week, we had a robust discussion of a second separate comment period
> and why, for Closed Generics, it is especially needed - and not just for
> extra time.  Greg, Alan and I worked on this analysis over the (US) holiday
> weekend - pulling together concerns that we heard from ALAC, GAC and GNSO
> members with additional research.  We share this analysis below (and
> attached- same doc).
>
> Best regards, Kathy
>
> ----------------------------
>
> *Meaningful Public Comment in the Closed Generic gTLD Application and
> Evaluation Process:*
>
> *The Need for a Special Closed Generic Public Comment Period*
>
>
>
> There is a unique and critical need for a Closed Generic public comment
> period that is designed to provide *meaningful public comment. *On this
> complicated issues involving the fitness of a given Closed Generic
> application -- one that has taken us months to wrestle with -- the
> questions and analysis will be complex and difficult, including concepts of
> genericness, anti-competitiveness, nexus, public interest goals and public
> interest harms.
>
>
>
> While the SubPro Working Group (WG) confirmed the need for a public
> comment period covering a number of different types of analysis, the WG did
> not, and could not, consider the special needs for public comment on Closed
> Generics applications. It was premature. Our Closed Generics Framework did
> not yet exist and our work had not yet been done. Our work and the
> Framework clearly point to the need for a separate public comment period –
> one that cannot start on reveal day.  Both the time and circumstances would
> not allow for the type of meaningful public comment needed here.
>
>
>
> *Here, meaningful public comment means a public comment that (a) can take
> advantage of and build upon the input of Governments, their Early Warnings,
> and their guidance on public interest, competition and antitrust policy and
> trademark issues, and (b)allows sufficient time for industries, businesses
> and other organizations to gather, discuss, prepare, socialize and sign off
> on joint comments and concerns by countries, regions and groups of all
> sorts (both ad hoc and formal), as well as comments from individual and
> entities. *
>
>
>
> *We are renewing and explaining our call for a second Closed Generics
> Public Comment Period of 60 days, to follow soon after the close of GAC
> Early Warnings.  We provide background and discuss key concepts such as
> meaningful public comment, the special role of government guidance, the
> value of organized industry input, and the need for webpage-driven requests
> –all to create a highly substantive meaningful comment period to complement
> the Closed Generics Evaluation process set forth in our Framework.  *
>
>
>
> *Background*:
>
>
>
> Some have claimed that the need for Closed Generic comments is the same as
> that for Community Priority applications, for which the WG considered and
> did not adopt a later public comment period. However, the work of our
> Closed Generics Small Team over these past few months has shown that Closed
> Generics gTLD applications are very different; they raise hard and unique
> issues of great import that have racked our collective brains: public
> interest goals, competition and antitrust policies, and trademark law,
> among many others.
>
>
>
> During the first round, in 2012, Closed Generic applications received *93
> GAC Early Warnings, and later, a special section of the 2013 Beijing GAC
> Communique*; further, the ICANN Board process initiated this Small Team
> with unprecedented representation of GAC, GNSO and ALAC.  Nothing like this
> took place with applications seeking Community Priority Evaluation. Closed
> Generics gTLD applications raise especially complicated public policy and
> public interest issues that clearly merit a special Closed Generics comment
> period well after the scramble of Reveal Day, particularly one coming after
> GAC Early Warnings.
>
>
>
> *The special role of government guidance*
>
>
>
> Government guidance is, and has always been, key to the understanding of
> Closed Generics. The 84 Early Warnings from Australia and 9 from Germany in
> 2012, albeit brief, raised key competition concerns, e.g.,
>
> “*Competition*: Symantec Corporation is seeking exclusive access to a
> common generic string (.antivirus) that relates to a broad market sector.”
> [Australian GAC]
>
>
>
> Competition, trademark law and public interest issues fall within the
> purview of national governments. As governments seek fair competition,
> create policies to support new and emerging businesses, and work to further
> the public interest, their role in understanding, examining and analyzing
> the new round of closed generic gTLD applications will be key.
>
>
>
> As the guidance of governments was uniquely important in the first round,
> via Early Warnings, so too will it be needed in future rounds. In the Small
> Team, we have shared our concerns that future Closed Generic gTLD
> applications may be difficult to read, unpack and interpret. As Governments
> were guides in the First Round, they will be guides in upcoming rounds –
> round that will come faster and likely with many more applications.
>
>
>
> *Value of Organized Industry Input *
>
>
>
> A Closed Generic Public Comment Period, closely following the close of GAC
> Early Warnings, will allow industries, businesses, associations,
> noncommercial groups, and associations to gather together – to share
> information with members via regular channels of communication, to convene
> and discuss, circulate and sign joint comments.  This collaboration proved
> very helpful in the first round and the input it achieved was meaningful –
> including from, for example:
>
>
>
> The International Publishers Association, European and International
> Booksellers Federation, Federation of European Publishers, The Börsenverein
> des Deutschen Buchhandels e.V., Verleger-Verband SBVV, The Booksellers
> Association of The UK & Ireland Ltd, the Australian and New Zealand
> Association of Antiquarian Booksellers Association and many more.
>
>
>
> This input, with time to organize, was well-discussed, well-reasoned, and
> well-supported. Meaningful public comment from businesses and industries is
> not a rushed process.
>
>
>
> Our first round history shows such meaningful comment comes best *after*
> the guidance of the governments *and *with the time to prepare and
> organize. Future booksellers, hotels, disaster relief organizations, and
> other commercial and noncommercial groups, will thank us.
>
>
>
> *Timing:*
>
>
>
> The Closed Generic Public Comment should follow a short time after the
> close of Early Warnings and be open for a period of 60 days. This period
> will allow industries, businesses and NGOs, as appropriate, to gather,
> discuss, and sign comments together.
>
>
>
> As Jeff, Sophie and others have pointed out, there is the possibility that
> any application may face Objections, and such applications will then be
> delayed for many months (as this formal, arbitration-like proceeding is
> extensive and expensive).
>
>
>
> Adding a short 60 day Second Comment Period on Closed Generics following
> Early Warnings for the public, with an appropriate response time for
> applicants, , will not add greatly to application processing time, but it
> will greatly enhance groups’ abilities to prepare and participate and will
> also aid the credibility of the entire process. After the 60 day period,
> and meaningful response period for applicants, this process will move on to
> the Evaluation panels, who will have a full and well-reasoned record. It’s
> a clean, simple solution.  A rushed and hectic single comment period for
> all things will be neither clean nor simple; most importantly, it is
> unlikely to be truly *meaningful*.
>
>
>
> *Closed Generics Microsite:*
>
> For this Closed Generic Comment Period, ICANN should help businesses,
> industries, and noncommercial organizations find those Closed Generic
> applications that impact them – a daunting task if there are hundreds (or
> even thousands) of closed generic applications.
>
>
>
> Accordingly, for the Closed Generic Microsite, ICANN should:
>
>
>
> +  Create a page listing all the rules and evaluation criteria for Closed
> Generics – not as written for applicants (e.g., in the Applicant
> Guidebook), but written for the public seeking to understand Closed Generic
> gTLDs and how to prepare meaningful comment (with knowledge of the
> evaluation factors) in this evaluation process.
>
> 2)      + Provide a good semantic search tool for searching the
> potentially thousands of closed generic applications by members of the
> public, so small businesses, NGOs and others can easily find all new gTLD
> applications with closed generic strings that impact their business or
> industry. For example, for the aviation industries, such a search tool
> should find .airport, .runway, and .airplanes. This type of tool is
> special, but not infrequent in our data-based world.
>
> 3)      + Present a homepage showing all Closed Generic gTLD applications
> as part of a table visible with each new gTLD string, the Applicant,
> translation of string to English if an Internationalized Domain Name, and
> country of origin.  You should not have to search the closed generic
> string, to see all Closed Generic gTLD applications at this summary level.
>
> 4)      + Share clear information about deadlines, easy input by the
> commenter, easy review by the public and applicant, and a link to any
> response the applicant may submit.  (Consistent with other aspects of our
> work, if additional features are made available for the initial comment
> period, then they should be added to this Closed Generics comment website
> as well.)
>
> The Closed Generic microsite can also post and generate notifications to
> commenters when applicants make changes to their closed generic gTLD
> applications after the comment period ends.
>
>
>
> Conclusion:
>
>
>
> *Meaningful public comment*, especially for the world community, is a
> process with which ICANN has struggled for years. We generally speak and
> write to our own ICANN Community, but not the larger public. Similarly, we
> tend to seek comment primarily from our own ICANN Community and not from
> the larger public. In the case of Closed Generics, this will be utterly
> insufficient; hearing from governments and the larger public is a
> requirement and must be built into our Framework. Thus, we need to do
> everything we reasonably can to support meaningful public comment–
> including a Closed Generic Comment Period to follow Early Warnings.
> Government input on these competition, public trust and public interest
> issues will be key on these complex and far-reaching issues, and a guide
> for businesses and industries who follow.
>
>
>
> In closing, we note that in seeking definitions of “effective
> consultation” and “meaningful public comment,” we found the* Code of
> Practice on Consultation* of HM Government, UK useful and provide its
> short foreword in our appendix.
>
>
>
> Thank you for your review and consideration of these critical points.
>
>
>
> *APPENDIX*
>
> ----------------------------------------------------------------------
>
> Specification 1:
>
> UK guide for effective consultation and meaningful input
>
> ----------------------------------------------------------------------
>
> *HM Government*
>
> *Code of Practice on Consultation*
>
> FOREWORD
>
>
>
> “This Government is committed to effective consultation; consultation
> which is targeted at, and easily accessible to, those with a clear interest
> in the policy in question. Effective consultation brings to light valuable
> information which the Government can use to design effective solutions. Put
> simply, effective consultation allows the Government to make informed
> decisions on matters of policy, to improve the delivery of public services,
> and to improve the accountability of public bodies.
>
>
>
> The Government has had a Code of Practice on Consultation since 2000
> setting out how consultation exercises are best run and what people can
> expect from the Government when it has decided to run a formal consultation
> exercise.
>
>
>
> This third version of the Code is itself the result of listening to those
> who regularly respond to Government consultations. This Code should help
> improve the transparency, responsiveness and accessibility of
> consultations, and help in reducing the burden of engaging in Government
> policy development.
>
>
>
> As part of the Government’s commitment to effective consultation, we will
> continue to monitor how we consult and we appreciate feedback on how we can
> improve.”
>
>
>
> John Hutton
>
> BERR SoS
>
>
>
> July 2008
>
>
> https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/100807/file47158.pdf
>
>
>
>
> -----------------------------------------------------------------------------
>
> On 5/29/2023 9:33 AM, Melissa Peters Allgood wrote:
>
> Hello –
>
>
>
> Just a quick reminder to reply to this email with your inputs regarding
> the three red lines detailed below and a request that you review the
> updated Closed Generics Framework v4 (clean or with edits tracked).
>
>
>
> We will take the remaining red line issues at the top of our next call (31
> May 2023 at 20:00 UTC) before moving into the v4 document.
>
>
>
> My continued thanks for your time and attention to this work.
>
>
>
> Melissa
>
>
>
> *From: *gnso-gac-closed-generics
> <gnso-gac-closed-generics-bounces at icann.org>
> <gnso-gac-closed-generics-bounces at icann.org> on behalf of Melissa Peters
> Allgood <melissa.allgood at icann.org> <melissa.allgood at icann.org>
> *Date: *Friday, May 26, 2023 at 9:33 AM
> *To: *"gnso-gac-closed-generics at icann.org"
> <gnso-gac-closed-generics at icann.org> <gnso-gac-closed-generics at icann.org>
> <gnso-gac-closed-generics at icann.org>
> *Subject: *[gnso-gac-closed-generics] Closed Generics Asynchronous Work
> and Updates
>
>
>
> Hello all,
>
>
>
> Below you will find the three outstanding items from the Remaining Red
> Lines [docs.google.com]
> <https://urldefense.com/v3/__https:/docs.google.com/document/d/1smLEk84K113gSGEdM4b_o1VR0vMmJk4yIkmkxX4M6Zc/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0pLQlHa_w$>
> table. Pursuant to your inputs at the end of our 24 May call, staff has
> taken all other items into the next version of your work. On the google
> drive you will find two versions of the same document: Closed Generics
> Framework v4–Edits Tracked [docs.google.com]
> <https://urldefense.com/v3/__https:/docs.google.com/document/d/1nEy2mQm01ITo-ovxgIVQ0kNIpLqPV4bqVxTKgZb15vQ/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0oqvqfCZw$>
> and Closed Generics Framework v4–Clean [docs.google.com]
> <https://urldefense.com/v3/__https:/docs.google.com/document/d/1InSBpBSW-j2aVwsk59t-Hs2LfAhuEKNfiwkFoi3SYxU/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0pEsETsDA$>.
> We’ve created the clean version for ease of reading and ask the edits
> tracked version be used for inputs (in comments).
>
>
>
> To do:
>
>    1. Each of the three red lines has a request highlighted in green.
>    Please respond to this email with your inputs.
>    2. Review Closed Generics Framework v4-Edits Tracked [docs.google.com]
>    <https://urldefense.com/v3/__https:/docs.google.com/document/d/1nEy2mQm01ITo-ovxgIVQ0kNIpLqPV4bqVxTKgZb15vQ/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0oqvqfCZw$>
>    and/or Closed Generics Framework v4–Clean [docs.google.com]
>    <https://urldefense.com/v3/__https:/docs.google.com/document/d/1InSBpBSW-j2aVwsk59t-Hs2LfAhuEKNfiwkFoi3SYxU/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0pEsETsDA$>
>    .
>
>
>
>
>
> *Identifying Disadvantaged Sectors*
>
> *Red line language:*
>
>    1. “Should the applicant also be asked to identify sector(s) of the
>    public that may be disadvantaged by its operation of a closed gTLD and
>    provide information about how it intends to address the issue?”
>
>
>
> *Broadly-agreed language in v3:*
>
> “7.l. Identify any threats or risks that could reasonably be posed if the
> closed generic gTLD is delegated, and specify the specific mitigating
> actions that the applicant plans to take to minimize these threats and
> risks.”
>
>
>
> *Proposal:  REPLACE broadly agreed language from v3 7.l with the following
> compromise:*
>
>    1. Identify sector(s) of the public that may be disadvantaged if the
>    closed generic gTLD is delegated, as well as any threats or risks that
>    could reasonably be posed, and detail the specific mitigating actions that
>    the applicant plans to take to minimize these threats and risks.
>
>
>    1. The applicant must make explicit commitment to the policies, rules
>    or actions that the applicant will agree to take to minimize any threats or
>    risks to the public or anti-competitive impacts by operation of the
>    applied-for closed generic TLD.
>
>
>
> Please respond if you can live with this compromise. If you cannot, please
> offer a way forward.
>
>
>
>
>
>
>
>
>
> *Definitions*
>
> In your asynchronous work, we saw general agreement that having a
> colloquial definition of “closed generic gTLD” would be helpful, so long as
> it is clear that this group is not creating policy through such use of such
> a colloquial definition. The term affiliates was flagged in the Remaining
> Red Lines document and staff suggests the additional language found in the
> last sub-bullet as a compromise path forward.
>
>
>
> *Proposed language**:*
>
>    1. “For purposes of the Closed Generics Facilitated Dialogue, it was
>    necessary for the group to have a shared understanding of concepts relevant
>    to closed generic gTLDs. Bearing in mind relevant definitions found in the
>    Base gTLD Registry Agreement, Section 2.9(c) and Section 11.3(d), the group
>    agreed to the following colloquial definition of “closed generics.” Please
>    note, this colloquial definition is not intended to impact any associated
>    contractual definitions or control future policy work on this issue.
>
>
>    1. A “closed generic gTLD”, sometimes described as a “gTLD with
>       exclusive registry access”, is understood to be a gTLD representing a
>       string that is a generic word or term under which domains are registered
>       exclusively by the registry operator and its affiliates.”
>
>
>    1. The group discussed examples where the term “affiliates” may
>          benefit from the inclusion of entities with common charters or governing
>          documents, but no decision was taken on this matter as it is beyond the
>          scope of this group.
>
>
>
> Please respond if you can live with the compromise. If you cannot, please
> offer a way forward.
>
>
>
>
>
>
>
>
>
> *Public Comment*
>
> During our 24 May call, the group continued discussion on this point. The
> group has broadly acknowledged the need for sufficient notice of an
> application for a closed generic gTLD and sufficient time for response. The
> group has broadly acknowledged significant delay to the initial evaluation
> could be problematic. The task before you is to identify a way forward.
>
>
>
> Please respond with your proposed way forward on this issue.
>
>
>
>
>
>
>
>
>
> I encourage you to continue your efforts to view the remaining work
> through a solution-oriented lens of collaboration and compromise.
>
>
>
> Wishing you a wonderful weekend,
>
> Melissa
>
>
>
>
>
> _______________________________________________
>
> gnso-gac-closed-generics mailing list
>
> gnso-gac-closed-generics at icann.org
>
> https://mm.icann.org/mailman/listinfo/gnso-gac-closed-generics
>
>
>
> _______________________________________________
>
> By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
>
> _______________________________________________
> gnso-gac-closed-generics mailing list
> gnso-gac-closed-generics at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-gac-closed-generics
>
> _______________________________________________
> By submitting your personal data, you consent to the processing of your
> personal data for purposes of subscribing to this mailing list accordance
> with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and
> the website Terms of Service (https://www.icann.org/privacy/tos). You can
> visit the Mailman link above to change your membership status or
> configuration, including unsubscribing, setting digest-style delivery or
> disabling delivery altogether (e.g., for a vacation), and so on.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://mm.icann.org/pipermail/gnso-gac-closed-generics/attachments/20230531/0fd6ebb6/attachment-0001.html>

More information about the gnso-gac-closed-generics mailing list