Excellent !
-Jorge
On May 10, 2013, at 12:14 PM, Robin Gross <[log in to unmask]> wrote:
> Noted law professor Jacqueline Lipton submitted clear, powerful comments to ICANN regarding the GAC's advice:
>
> http://forum.icann.org/lists/comments-gac-safeguard-advice-23apr13/msg00010.html
> Comments to ICANN: GAC Beijing Communique
>
> To: "comments-gac-safeguard-advice-23apr13@xxxxxxxxx" <comments-gac-safeguard-advice-23apr13@xxxxxxxxx>
> Subject: Comments to ICANN: GAC Beijing Communique
> From: "Lipton, Jacqueline D" <jdlipton@xxxxxxxxxxxxxx>
> Date: Tue, 7 May 2013 15:04:43 -0500
> May 7, 2013
>
> Comments on GAC Beijing Communiqué Issued on April 11, 2013
>
> I write in response to ICANN’s call for public comments on the GAC’s Beijing
> Communiqué issued on April 11, 2013 (Beijing Communiqué) with specific
> reference to Section IV and Annexes I and II.
>
> In particular, the GAC has advised the Board:
>
> a. Not to proceed beyond Initial Evaluation with certain strings including
> .amazon, .patagonia, .date, .spa, .wine, .vin, and .yun (clause IV.1.c.i);
> b. To implement new general Safeguards for all gTLDs (Annex I);
> c. To implement new specific Safeguards for particular categories of gTLDs
> identified by the GAC (Annex I);
> d. To implement restricted registration policies for certain categories of
> gTLDs (Annex I); and,
> e. To implement a “public interest goal” requirement with respect to
> exclusive registry access for generic terms (Annex I).
>
> I am a professor of law whose expertise resides in the field of law and digital
> technology, with particular focus on trademarks, free speech, and Internet
> governance. I am the author of “Internet Domain Names, Trademarks, and Free
> Speech” (Edward Elgar, 2010) as well as more than forty law review articles
> dealing with Internet domain name disputes and Internet governance more
> generally. I also co-author the leading American Internet law casebook,
> “Cyberspace Law: Cases and Materials” (2 ed, 2005, and 3 ed, 2010) (with R.
> Ku). I hold Ph.D.s from both Cambridge University and Griffith University,
> both in the fields of regulating digital technology. My teaching is focused in
> the areas of International Intellectual Property, International Business
> Transactions, Trademark and Unfair Competition, and Internet Law.
>
> In my view, ICANN should not adopt any of the recommendations raised in the
> Beijing Communiqué. These recommendations have been made too late in a process
> that is already underway, and under which large sums of money have been
> invested by applicants in reliance on previously released ICANN guidelines.
> Additionally, many applicants have made plans for innovative business models in
> new domain spaces that would be severely restricted, if not effectively
> prohibited, if the GAC’s proposals were implemented.
>
> Rules for granting and managing new gTLDs should not be changed at this point
> in the system’s development. The current procedures already contain safeguards
> with respect to the issues raised in the Beijing Communiqué. For example,
> governments – and others – are entitled to object to the grant of applications
> for particular gTLDs on previously articulated grounds. Under the Beijing
> Communiqué, the GAC seeks to add an additional and unnecessary layer of rules
> that serves no clear purpose over and above safeguards currently in place, and
> that may chill online innovation. Many of the GAC’s suggestions are also
> framed in terms that are too vague to be implemented in practice in a
> consistent and meaningful way, despite apparently laudable policy goals. I
> have detailed some specific concerns below.
>
> 1. In the Beijing Communiqué, the GAC tends to rely on broad, undefined
> terms as criteria to impose restrictive conditions on applications for, or
> administration of, new gTLDs. An obvious example is the reference in Annex I
> to implementing new gTLDs “in a manner that is fully respectful of human rights
> and fundamental freedoms”. While this is clearly a laudable aspirational goal,
> any international human rights lawyer or advocate can attest to the difficulty
> of defining such terms in a harmonized manner at the global level. Even the
> most basic of human rights – such as free speech – connotes different things in
> different jurisdictions. For example, while the United States has a powerful
> First Amendment jurisprudence, Australia has no express constitutional
> guarantee of free speech. There is no way to enshrine a meaningful concept of
> human rights or fundamental freedoms in a uniform and workable set of rules for
> domain names.
>
> Another example of a tendency to rely on vague and undefined language in the
> Beijing Communiqué arises with respect to the notion that registries be
> required to operate “in an open manner consistent with general principles of
> openness and non-discrimination”. Again, these are laudable aspirational goals
> that are impossible to reduce to concrete and workable rules in practice. They
> should not be imposed on the new domain name system at this point in its
> development, at least not in the terms suggested in the Beijing Communiqué.
> Their application would be fraught with too much practical difficulty and would
> tend to have a chilling effect on online innovation.
>
> 2. The GAC suggests in the Beijing Communiqué that exclusive registry
> access for generic terms should serve a public interest goal. As noted in my
> comments on the “closed generic” issue in March of this year, “generic” is not
> a term that can be meaningfully defined in the context of Internet domain
> names. Genericness always relies on context. A term that is generic in one
> context may well be proprietary in another. It is impossible to distill a
> general rule to apply to all new gTLD registries to identify terms that should,
> as a general rule, be subject to a “public interest goal” requirement. For
> example, depending on the context, “Delta” is a proprietary trademark (for
> airlines, hardware fixtures etc.) as well as a mathematical symbol, a Greek
> letter, and a word in the English language.
>
> Even if it were possible to create a meaningful definition of “generic” in the
> context of gTLDs, it would be equally problematic to define the concept of a
> “public interest goal”. Many of the difficulties in creating such a definition
> have already been identified in Annex II of the Beijing Communiqué itself.
>
> 3. The Beijing Communiqué also fails to provide a clear rubric for the
> treatment of specific strings it has identified as requiring further
> consideration in Clause IV.1.c.i. The GAC has suggested that applications for
> a series of strings including several valuable trademarked terms (such as
> .amazon, .spa, and .patagonia) should not proceed past Initial Evaluation.
> Several business entities have expended significant resources in developing
> these brands and applying for the corresponding gTLDs in good faith under
> existing guidelines. It would be unfair to effectively veto their efforts at
> this stage when no specific harm has been articulated by the GAC with respect
> to the possibility of granting the applications. While the Beijing Communiqué
> may reflect genuine concerns about conflicts between a trademark and another
> interest in a new gTLD space, there are procedures in place – including under
> national laws – to deal with such challenges. There is no justification for
> removing applications for these gTLDs from consideration at this point in
> ICANN’s process.
>
> 4. In Annex I of the Beijing Communiqué , the GAC seeks to impose heavy
> administrative obligations and attendant costs on registries of new gTLDs in
> terms of its proposed Safeguards. These include monitoring and documentation
> requirements that have not been imposed on domain name registries in existing
> domain spaces. The imposition of such obligations at this point in the
> development of the new system would likely go a long way toward chilling
> innovation online by imposing significant financial and administrative burdens
> on those who would otherwise provide commercially valuable spaces for
> innovation.
>
> 5. Annex I of the Beijing Communiqué requires registry operators and
> registrars to “respect all substantive and procedural laws under the applicable
> jurisdictions”. It is not immediately clear that this needs to be implemented
> as a particular new safeguard within the system, or indeed that it can be
> implemented by ICANN meaningfully in any event. It goes without saying that
> registry operators and registrars are subject to national laws, as well as to
> provisions set out in the new gTLD Registry Agreement requiring compliance with
> national laws. As with existing gTLD spaces, domestic courts and legislatures
> will govern acceptable online conduct in new gTLD spaces in terms of compliance
> with national law. There is no need for any new preemptive regulation by
> ICANN.
>
> 6. In Annex I, the GAC attempts to create a list of strings linked to
> regulated or professional sectors that merit special consideration, along with
> the imposition of additional administrative safeguards and associated burdens
> on relevant registries. The Beijing Communiqué further states that this list of
> strings is “non-exhaustive” which seems a little problematic in potentially
> creating uncertainty in practice. Under this approach, the GAC appears to be
> attempting to create a general veto power or at least exercise an unjustifiable
> level of control over any new gTLD application without having to go through the
> already established process for objecting to specific gTLD applications. At
> best, this approach seems like an attempt to pre-emptively regulate something
> that doesn’t clearly need regulation outside the procedures already in place.
> At worst, this approach will have a significant chilling effect on innovation
> in new gTLD spaces and will lead to wasted resources. If the risks associated
> with applying for, or managing, new gTLD registries that may be regarded as
> falling within the categories identified by the GAC become too high, potential
> registrants may be deterred from developing strategies for online innovation in
> those spaces. As a result, gTLDs that may otherwise have been applied for and
> utilized for socially or commercially useful purposes will simply become wasted
> resources.
>
> In sum, the new gTLD spaces should be allowed to develop as the existing gTLD
> spaces have grown, subject to national laws, and free from the implementation
> of ex ante rules developed in a context of uncertainty about how registries,
> registrars, and consumers will use the new system in practice. In other words,
> the concerns raised in the Beijing Communiqué seem almost like a solution in
> search of a problem. The gTLD expansion should be given the opportunity to
> develop organically so that new registries can innovate subject to the
> constraints of national laws and the objection procedures set out in existing
> ICANN guidelines.
>
> Again, I would urge ICANN to maintain consistency with its stated procedures
> for applications for new gTLDs and not to impose a complicated and unnecessary
> new system for imposing additional safeguards the need for which has not been
> clearly articulated by the GAC. There has been adequate time during the
> development of the system to consider the issues raised in the Beijing
> Communiqué. Procedures have already been implemented to deal with those
> concerns, notably the ability of governments and others to object to specific
> gTLD applications. It would be inappropriate now to change the rules. While
> the GAC’s motives are laudable, the execution of the suggestions made in the
> Beijing Communiqué would be unworkable and is unnecessary at this point in the
> development of the system.
>
> Thank you for the opportunity to comment on this issue. If you have any
> queries in relation to the above, my contact details are below.
> Sincerely,
>
> Jacqueline D. Lipton, Ph.D.
> Baker Botts Professor of Law
> Co-Director, Institute for Intellectual Property and Information Law
> University of Houston Law Center
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