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

Wed May 31 06:58:14 UTC 2023

agree +1

________________________________

Von: Nigel Hickson via gnso-gac-closed-generics <gnso-gac-closed-generics at icann.org>
Datum: 31. Mai 2023 um 08:52:51 MESZ
An: Merritt, Jason (ISED/ISDE) <Jason.Merritt at ised-isde.gc.ca>
Cc: gnso-gac-closed-generics at icann.org <gnso-gac-closed-generics at icann.org>
Betreff: Re: [gnso-gac-closed-generics] Separate, second comment period needed [short paper]

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<mailto: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<mailto: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<mailto:gnso-gac-closed-generics at icann.org>; Melissa Peters Allgood <melissa.allgood at icann.org<mailto: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

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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><mailto:gnso-gac-closed-generics-bounces at icann.org> on behalf of Melissa Peters Allgood <melissa.allgood at icann.org><mailto:melissa.allgood at icann.org>
Date: Friday, May 26, 2023 at 9:33 AM
To: "gnso-gac-closed-generics at icann.org"<mailto:gnso-gac-closed-generics at icann.org> <gnso-gac-closed-generics at icann.org><mailto: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.

     *   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.”

        *   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

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