[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 14 May 2000 UTC

[Julie Hedlund]

Dear Working Group members,

Please see below the notes from the meeting on 14 May at 2000 UTC. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2020-05-14+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie

Notes and Action Items:

Actions:

ACTION ITEM: Add to #5 or as a new #8 a question about whether the exclusive use of the string would be a “Category Killer”, but try to find a different way to describe it without using slang (perhaps from Greg Shatan).

ACTION ITEM: Note to continue the discussion on the list what the factors must be to help the Board in making its decision and draft text on characterizing the WG’s determination on Closed Generics.

Notes:

1. Updates to Statements of Interest: No updates provided.

2. Discussion of Final Report Topics:

a. 2.7.3 Closed Generics: https://docs.google.com/document/d/1xXu7gPKiblS3Vh4MCuK6NWfeRmMolXf9VF5sO7OG4VE/edit?usp=sharing

General Discussion:

-- Don’t think it’s helpful to discuss what the default would be because ultimately this will go back to the Board.
-- GAC members supported Options 2 and 3.  Some thought there could be a code of conduct and to allow Closed Generics.

Factors that could be considered in developing a framework for evaluating the public interest, page 4 (suggested by Anne Aikman-Scalese with modifications by the Leadership):

-- For 2. rather than Does .... , perhaps the better question is  'How does the proposed closed registry serve a public good?'
-- Same for 3. How is the proposed mission…
-- Could we think about how this evaluation would be done, considering that the Board would not want to be in the position of judging.
-- Is there support for a framework?
-- 6. seems to be a 'policy issue' in its own right so I don't think it should be a factor here.
-- Same for 6.  Also a yes/no question. Need to elaborate.
-- I'm not so sure about 5.  Shouldn't they each be assessed on their merits, and regardless of that assessment they go to auction.
-- For #3, might the proposed mission and purpose of the registry be different to the use of the TLD?  Should it be "How is the proposed mission and purpose of the registry [or proposed use of the string] innovative in nature?
-- It's helpful to try to find a path forward, such as this.  Closed generics were prohibited in the 2012 round as a direct result of the gac advice, and the GAC members, in their informal comments are firmly reiterating that their advice isn't for an outright ban but that there must be a public interest for the string to be allowed
-- Further re: #3, understanding how the proposed use of the string is innovative is more important than for the proposed mission and purpose of the registry.

-- Public interest or public good is an overarching issue that haunts gTLDs as a whole, so we could think about whether this framework is helpful to the whole of the program.  You aren’t making a statement about Closed Generics, but provides additional information for other TLDs.
-- We need to be careful that in doing this for closed generics there aren't unintended consequences for other TLDs given it is specifically bringing in elements of public interest/public good.

-- Board Resolution:  https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a

Question 1: Why is the selected string necessary for your registry?

-- Needs to be more nuanced.  They should be able to explain in some depth. What other options did you consider and rule out? Etc.

Question 2: How does the proposed closed registry serve a public good?

-- Need to define “public good”.
-- Shouldn't #2 be "serve the public interest".  Not sure if that's different to "public good" but the GAC advice was public interest.
-- Libraries are an example of a public good.
-- GAC seemed to suggest that it is up to governments to define public good.
-- If it’s a Closed Generic, how can it benefit all people.
-- Looking at the Supreme Court case for booking.com, we need to be careful what we enable with this.
-- You could restrict a TLD for all registrants, but still provide a benefit to end usres.
-- Shouldn’t we be looking at “public interest goal” since that was the standard set by the GAC advice?  You could ask the applicant how they would fulfill a public interest goal, but it’s not really a factor, it’s what we are trying to establish.
-- Change the question to: “How does the proposed closed registry serve a public interest goal. What other information do you wish to provide to show it is in the public interest?” Move to the end of the questions.
-- GAC advice: Beijing Communiqué:  "For strings representing generic terms, exclusive registry access should serve a public interest goal".
-- Should evaluate the effect on competition, but we go too far if we make an applicant show that they should have had a community application.
-- Helpful to provide some guidance without making a recommendation either for or against Closed Generics.
-- I think a question on what the effects on competition will be rather than requiring an applicant to chase down all competitors for consents.  If I applied for .lawfirm with a really innovative, public benefiting use case, it would be quite impossible for me to get consent from every lawyer in the world.
-- How do we reconcile the factors/questions with the rest of the text in the section?

Question 3: How is the proposed mission and purpose of the registry innovative in nature?

-- Better to look at how the proposed use of the string is innovative in nature.
-- In the paragraph above we have proposed additional contractual provisions, so should be looking at these questions/evaluation in the context of the rest of the section.
--  Suggest: “How is the proposed use of the string innovate in nature? How does the proposed mission and purpose of the registry support such use?”

Question 4: What is the likely effect on competition of awarding the proposed closed registry for the same or similar goods and/or services? Is it minimal or is it vast? Why must it be closed?

-- Don’t think an applicant can assess the likely effect on competition -- that is more an evaluation.
-- If you don’t have support from your competitors then the evaluators could ask your competitors.
-- Don’t know how realistic that is.
-- But competition needs to be measured.
-- Innovation for the benefit of users is another factor
 which may still be in the public interest but not supportive of your competitors.
-- Question: “Category Killer” -- What does that mean?  Answer: A term which defines a good or service that would kill off any competition in the category or allow the applicant to control the category by the Closed Generic.  So, tools, clothing, beauty aids, etc. that would define a significant category.
-- Question: Would “Category Killers” have to be nouns? Answer: Yes, and not sure that something that isn’t a noun could be a Closed Generic.

ACTION ITEM: Add to #5 or as a new #8 a question about whether the exclusive use of the string would be a “Category Killer”, but try to find a different way to describe it without using slang (perhaps from Greg Shatan).

Question 5: Is there more than one proposed closed registry application for the same string and if so, how can these be evaluated for preference, e.g. scoring system?

-- Not sure how anyone would answer this.
-- This is a question to be considered by an evaluator.

Who would perform the evaluation?  The Board? An independent evaluator?

-- It would have to be the Board since they are charged to look at the public interest.
-- Think about what the process would be so that the Board has something to work with.

ACTION ITEM: Note to continue the discussion on the list what the factors must be to help the Board in making its decision and draft text on characterizing the WG’s determination on Closed Generics.

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