The second day of ICANN’s 39th Meeting in Cartagena, Colombia ended with what would be characterized in diplomatic circles as a “full and frank discussion of the issues” – and in professional wrestling circles as a “smackdown” – as ICANN’s Board and its Governmental Advisory Committee (GAC) met in open public session before a SRO crowd.
The EU’s representative led off the dialogue, complaining that key documents for GAC consideration of the new gTLD program had been received “very late” and that the latest economic study, released last Friday, should have preceded any Board decision on allowing full vertical integration of registries and registrars. Sweden then chimed in, noting that while GAC members defended ICANN and its processes at such venues at the UN’s Internet Government Forum (IGF), many new gTLD issues raised by the GAC remained unresolved and that this state of affairs provided ammunition to ICANN’s critics.
ICANN Board Chairman Peter Dengate Thrush countered that ICANN had provided extensive responses to the GAC’s input. The conversation then got into the specifics of the GAC’s unhappiness, with geographic names leading the list. ICANN has already conceded much – too much, in ICA’s opinion – by requiring that the use of country, sub-region (state, county, province), and capital city names for new gTLDs require the approval or non-objection of relevant government authorities, notwithstanding the fact that map names have never been subject to trademark and that attempts to create such rights through UDRP filings have repeatedly failed. Yet further comments by some GAC members indicated that they wanted geo-name protections provided to even their smallest towns and villages.
Another sore point is the opaqueness of ICANN’s policy process, in which changes in the new gTLD Guidebook appear without any adequate explanation of their basis. On this ICA is in substantial sympathy with the GAC, and Chairman Thrush conceded that a better process was needed and promised it was on the way.
The UK’s delegate then chimed in with s statement worthy of an honorary membership in ICANN’s Intellectual Property Constituency (IPC). Stating that he was still not confident that the benefits of new gTLDs will outweigh their costs, he noted that brand owners remained “most agitated”, and that the Guidebook was still “not there” on proposed Rights Protection Mechanisms (RPMs), including the Uniform Rapid Suspension (URS) procedure through which a domain could be quickly frozen. The German and Norwegian delegates chimed in with similar statements.
A little history is in order here. ICANN attempted to placate the doom saying of the IPC in early 2009 by creating an IRT of “trademark experts” with a strong pro-complainant bias to recommend protections beyond the UDRP. Predictably, they produced a trademark bar wish list that elicited howls of protest from other ICANN constituencies as well as from ICA. ICANN then asked its policymaking body, the GNSO, to rebalance the equation and it in turn established a STI-RT which, to the surprise of most ICANN watchers, produced a compromise package in short order that received unanimous GNSO approval and was in turn adopted by ICANN’s Board. But as trademark interests appear to be unwilling to accept anything less than the original IRT recommendations and then some, they continued their aggressive lobbying and that resulted in the ICANN Board’s unexplained decision at their September retreat in Norway to shorten a registrant’s URS response time form 20 to 14 days. As we could have predicted, throwing that concession to the IP community failed to satiate them and their feverish efforts were reflected in statements made by some GAC members on Tuesday.
ICANN needs to remember that the GAC’s role is merely advisory, and that any further readjustments of the STI-RT package would undermine the GNSO’s policymaking primacy absent any evidence that the dire predictions of the trademark bar will really materialize. Unreasonably harsh “rights protections’ aimed at registrants will in fact be detrimental to the economic prospects of the new gTLDs that ICANN is so anxious to see succeed.
The U.S. delegate postulated a more reasonable position – that the real issue is not certainty but confidence – confidence that the external costs of new gTLDs can be mitigated. On this point incoming Board member Bertrand de La Chapelle noted that he understood the IP sector’s fears – but that if those fears were actually realized when new gTLDs were introduced the process could be tightened up as required.
ICANN CEO Rod Beckstrom sagely noted that the future can never be predicted, and that it is therefore always difficult to estimate the value of innovation. To that point we would add that if the public Internet had required the assent of IP lawyers it would probably still not exist, because they would have correctly forecast that facilitating the creation and distribution of infinite copies of copyrighted content would massively disrupt the legacy business model of the media and entertainment sectors — but could never have imagined the myriad benefits of search engines, social networks, e-commerce, and all the other Internet wonders that we now take for granted.
The meeting ended with a suggestion that the Board and GAC meet for a day or two between now and the March 2011 ICANN meeting in San Francisco. The further concessions that ICANN May contemplate in its quest for GAC acquiescence remain to be seen, and ICA will remain on alert to assure as best it can that they do not come at the expense of the legitimate rights of domain registrants.