Tomorrow and Friday, November 1st and 2nd, ICANN CEO Fadi Chehade – along with some other senior ICANN staff, we believe -- will be meeting in Brussels with a variety of ICANN-affiliated parties to primarily discuss matters relating to implementation of the Trademark Clearinghouse, one of the two required rights protection mechanisms (RPMs) that must be operationally in place before any new gTLDs can launch (the other mandatory RPM being Uniform Rapid Suspension ([URS]). Shortly after the recent Toronto ICANN meeting CEO Chehade stated that seeing Clearinghouse implementation proceed to timely completion and concluding the negotiations on revisions to the Registrar Accreditation Agreement (RAA) were his two top near-term priorities.
We have been informed that last week, upon learning of the meeting and receiving an invitation to send a participant, Robin Gross and William Drake conveyed the view, on behalf of ICANN’s Non-Commercial Stakeholders Group (NCSG), that for a variety of procedural, policy, operational, and practical reasons the meeting was a mistake and should be canceled. In response, CEO Chehade sent the response reprinted below on Friday, October 26th. The letter concludes, “p.s. if helpful, you are welcome to share my clarifications with your colleagues.” -- and it has now been shared with us and we in turn are sharing it with you.
The letter makes clear that the new CEO has a much more hands on, details oriented approach than his predecessor -- and we generally welcome that. However, it still concerns us that such a substantive session has been scheduled with only select parties being invited and with no general announcement to the ICANN community regarding the meeting and its purpose.
We also appreciate the CEO’s statement that, “On the issue of the RPMs: I wish to assure you that I am extremely respectful of the policy process and I will not come back with a solution that undermines the multi-stakeholder consensus without following proper process. This is my personal commitment to you and to our great community that has labored very hard to reach this point.” However, while we have no issue with ICANN staff, including the CEO, holding meetings with expert members of the community and others regarding implementation matters, we have significant concerns about such meetings that may produce a “solution” that is at variance with established ICANN policy. How an issue is teed up usually has a big effect on its outcome, which is why closed door meetings with select invitees are a concern.
As regards the IPC/BC proposals for significant modifications of the RPMs, ICA participated in one of the working groups addressing that subject in its role as a BC member, and is aware of the final recommendations of the other two WGs. While some of the recommendations are indeed of an implementing nature, others represent significant and sometimes brand new policy departures (and we will detail our concerns about some of them in a separate post). So the letter’s note that a purpose of the Brussels meeting is to “prepare for the public discussion on the matter” is somewhat disconcerting, in that ICANN has a standard and well-defined process in which the public community develops policy with the GNSO Council playing a central role, and this meeting does not fit comfortably within it, and the quoted language seems to concede the point that a reopening of RPM policy will occur despite the lack of community consensus for doing so. Also, while as a scheduling matter, it is correct that “the IPC/BC proposal discussion will only occupy a 1/5 of our two days (3 hours)”, as a practical matter the entire two days are relevant to the IPC/BC proposals since two of the three WGs were specifically focused on Clearinghouse-related matters. On the matter of community consensus, in addition to the NCSG concerns, the IPC/BC proposals have also received substantial pushback from ICANN’s New TLD Applicants Group (NTAG) and its Registrar Stakeholders Group (RrSG), both of which oppose reopening delicately balanced policy decisions reached through a two year process of negotiation and compromise.
All that said, the letter, while less than a week old, is now out of date as Hurricane Sandy intervened and made it impossible for most of the IPC/BC representatives who planned to be in Brussels to secure air transportation. So it is now our understanding that a second meeting is being contemplated in mid-November, most probably at ICANN headquarters in Los Angeles, for the sole purpose of discussing the IPC/BC RPM initiatives. We certainly hope – for the sake of transparency, accountability, and public/community understanding – that ICANN issues a full statement in advance of that meeting explaining its purpose, who has been invited to attend and why, and how the results of the meeting will be conveyed to the community and fit within the established ICANN policy process.
Here’s the letter--
Good to hear from you. I truly appreciate your comments. Let me clarify.
1. I am the one who called for the meeting. No one lobbied me on this matter. I received a high-level briefing on complex issues and realized I needed to learn more.
2. This is intended to be an informal white board brainstorming session to generate new thinking that advances TMCH discussions. The aim is to generate straw man proposals that can be shared with the broader community for discussion and consideration.
3. The session will include the following items (accorded equal time/focus):
• Design implementation solution for trademark registration
• Design implementation solution for trademark sunrise management
• Design implementation solution for trademark claims management
• Review IPC/BC proposal
• Review framework for contract with the Clearinghouse providers with the parties in direct operation with the Clearinghouse. The contract will be publicly posted.
4. Given the informality of the session, I asked representatives of the constituencies directly impacted with the implementation and contractual implications of the Clearinghouse to help me develop a proposal.
5. I am personally facilitating the white board discussion (partly to learn and partly to birth a solution design rapidly).
6. On the issue of the RPMs: I wish to assure you that I am extremely respectful of the policy process and I will not come back with a solution that undermines the multi-stakeholder consensus without following proper process. This is my personal commitment to you and to our great community that has labored very hard to reach this point.
7. The new requests from the IPC/BC constituencies have been made public and I wanted to better understand them - so I used the opportunity we were all together to hear them out. I also personally contacted Robin on Skype to invite someone from your constituency on this item of the agenda -- so your community can participate initially and, more importantly, prepare for the public discussion on the matter. Given that the IPC/BC proposal discussion will only occupy a 1/5 of our two days (3 hours), i suggested that your representative can join via video-link from the ICANN office or Skype. Accommodation of time zones is always difficult and the arrival of certain parties is dictating the agenda timing but we will do our best to accommodate time zones of remote participants. I also offered Robin that if you all wished to meet with me first to share your views without the other stakeholders present, that I would be happy to take the time.
I hope the above helps clarify my intent and assure you that your input below was helpful and appreciated. I am here at your service to make this a success.
p.s. if helpful, you are welcome to share my clarifications with your colleagues.