On September 4th ICANN’s GNSO Council confirmed the appointment of ICA Counsel Philip Corwin as Co-Chairman of the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group. This WG will have to consider a broad array of issues that are relevant not only to its own work but to the broader upcoming review of the rights protection measures (RPMs) created for the new gTLD program, as well as potential UDRP reform, that will begin in Spring 2015.
Among its charges will be examining the feasibility of making the UDRP and URS, or some new variant thereof, available to International Government Organizations (IGOs) and International Nongovernmental Organizations (INGOs) that believe that the rights embodied in their full organizational names or acronyms have been infringed upon. From an internal ICANN political perspective it will be trying to resolve the differences — or at least narrow the wide gap between — the unanimous GNSO Council position that the rights of these organizations in their exact names and acronyms in domain names were limited, and the opposing Governmental Advisory Committee (GAC) position.
They issues and task the WG will address include:
- The differences between the UDRP and the URS;
- The relevance of existing RPMs in the Applicant Guidebook for the New gTLD Program;
- The interplay between its work and the forthcoming GNSO review of the UDRP, URS and other rights-protection mechanisms;
- The distinctions, if any, between IGOs and INGOs for purposes of this PDP;
- The potential need to distinguish between a legacy gTLD and a new gTLD;
- The potential need to clarify whether the URS is a Consensus Policy binding on ICANN’s contracted parties;
- The issue of cost to IGOs and INGOs to use curative processes;
- The relevance of specific legal protections under international legal instruments and various national laws for IGOs and certain INGOs (e.g., the Red Cross and the International Olympic Committee).
- Consideration of whether subsequent developments such as the New gTLD Program and the URS mean that prior ICANN community recommendations on IGO dispute resolution are no longer applicable;
- Examination of whether or not similar justifications and amendments should apply to both the UDRP and URS, or if each procedure should be treated independently;
- Communications with existing ICANN dispute resolution service providers as well as experienced UDRP panelists;
- Determination of what specific considerations (e.g., qualifying requirements, authentication criteria, and appeal processes) should apply to IGOs and INGOs;
- Research on applicable international law regarding the rights of, and special privileges and immunities for, IGOs;
- Research on the extent to which IGOs and INGOs already have trademarks and might be covered, in whole or in part, by existing UDRP and URS proceedings;
- Research on the number and list of IGOs currently protected under Article 6ter of the Paris Convention for the Protection of Intellectual Property;
- Research on the number and list of INGOs included on the ECOSOC list in consultative status;
- Consideration of whether there may be practical alternatives, other than amending the UDRP and URS, that can provide adequate curative rights protections for IGOs and INGOs;
- Consideration of a clear definition of the mission of an IGOs, its scope of operations, and the regions and countries in which it operates, with the goal of providing a context for the IGO or INGO similar to the scope and terms of a trademark;
- Assuring that any WG recommendations incorporate fundamental principles of fair use, acknowledge free speech and freedom of expression, and balance the rights of all parties to use generic words and other terms and acronyms in non-confusing ways.
The WG is holding its initial conference call on September 8th. Its current work plan projects it completing its examination of these matters by the time of the ICANN 53 meeting scheduled for June 2015. Once all that initial work is done the WG will focus on developing consensus positions to be reflected in a final report and recommendations.
The other Co-Chair of the WG is Petter Rindforth, who currently serves on the GNSO Council as a representative of the Intellectual Property Constituency (IPC). The role of the Co-Chairs is to coordinate with ICANN policy staff to plan and schedule meetings; ensure that Working Group participation is balanced, fair and representative; keep the WG to its work plan; and determine the different levels of Consensus within the WG as the final policy recommendations are confirmed and published for public comment. The Chair are also responsible for coordinating outreach to other parts of the ICANN community beyond the GNSO.
This is not the only ICANN working group in which Corwin is participating on behalf of ICA members and the broader ICANN community. He is also a member of the Privacy and Proxy Services Accreditation Issues (PPSAI) PDP Working Group which is reviewing potential accreditation standards for privacy and proxy service providers; as well as the conditions under which they should be compelled to disclose hidden registrant information, and the appropriate parties to which such data may be revealed. This issue is important for all domain registrants who choose to utilize such services – whether to reduce spam, guard confidential business data, or avoid scrutiny if domiciled in repressive nations that suppress free speech.
Corwin has also joined the GNSO New gTLDs Subsequent Rounds Discussion Group. It will be reviewing the new gTLD program’s performance and problems to date in preparation for a more formal process to determine whether any provisions of the Applicant Guidebook should be altered, as well as other potential changes, prior to commencement of a second round of new gTLDs.
While these ICANN working groups operate largely below the day-to-day radar they are the heart of the bottom-up, multistakeholder process and their work often results in the adoption of important new or modified ICANN policies.