Within the community that supports domain name policymaking at the Internet Corporation for Assigned Names and Numbers, the question of whether a particular matter is "policy" or "implementation" is an important one. "Policy" at ICANN must be the product of a consensus-driven process that involves all relevant members of the ICANN community. "Implementation" matters, on the other hand, might be adopted by the ICANN board of directors without involving ICANN's various constituencies to any great extent.
ICANN is currently studying the "policy vs. implementation" question, and is looking to develop guidance to help it decide which matters should be referred to the entire ICANN community for policy work and which matters are mere implementation details that can be handled on an expedited basis. One area where this question has come up is with respect to the new top-level domains, where trademark owners are pressing ICANN for additional rights protection measures. Senior Editor Amy E. Bivins wrote the following account for Bloomberg BNA's Electronic Commerce & Law Report.
When the Internet Corporation for Assigned Names and Numbers Board of Directors decided in November to adopt special protections for International Olympic Committee and Red Cross/Red Crescent marks in the new TLDs program, that decision capped a long-simmering debate about the fairness of the organization's policymaking processes.
While ICANN publicly professes to solicit broad representation of the world's perspectives in its bottom-up policymaking processes, some argue that those who complain the loudest--usually stakeholders with the most resources and clout--are able to cut corners in ICANN's labyrinthine policymaking processes.
This complaint is not a new one at ICANN, or one unique to the new TLDs program, though that program has put a spotlight on the matter. ICANN staff and policymakers are exploring this issue, pursuant to ICANN's 2009 Affirmation of Commitments agreement with the Department of Commerce.
These efforts appear unlikely to silence criticism of other new TLD-related implementation projects underway, which seek to incorporate additional trademark protections into the new TLDs program in the waning days leading up to the first delegations.
Some members of the ICANN community argued that when the board adopted the special IOC/Red Cross protections, it adopted new policy governing new TLDs--a task reserved for ICANN policymakers, the Generic Names Supporting Organization.
When the board adopted the protections, the GNSO Council was still developing a response to the board's request for policy advice on 2protections for IOC and Red Cross/Red Crescent marks.
The fact that the GNSO was still mulling the issue fueled criticism that the IOC/Red Cross circumvented ICANN's policymaking processes by lobbying ICANN's Governmental Advisory Committee, who urged the board to adopt the protections.
There was "real abuse" surrounding the IOC, Red Cross/Red Crescent protections, Milton M. Mueller, a professor at Syracuse University School of Information Studies told BNA.
"The GAC was lobbied and intervened with the board to insist on a policy, completely circumventing what is supposed to be the process," Mueller added.
The board's request for policy advice related to IOC, Red Cross/Red Crescent protections was something less than a request for formal policy development. But such requests--a relatively new occurrence at ICANN--have no defined processes or rules.
Stephane Van Gelder, chairman and managing director, Stephane Van Gelder Consulting Ltd., United Kingdom/France, and former chair of the GNSO Council, told BNA that these requests have caused confusion among policymakers. "When I was on the GNSO, chairing it, there was frequent discussions about 'What is the board asking us to do here?' " Van Gelder said.
"If the GNSO doesn't understand the question, you can't expect the answer to be satisfactory," Van Gelder said.
ICANN's bottom-up multistakeholder policymaking processes can take a significant amount of time. The process is intended to give all stakeholders a voice in ICANN's policymaking process. The process of ironing out differences among ICANN stakeholders, and arriving at a consensus policy, can take a year or more.
When the ICANN board approved the new TLDs program in 2008, the associated GNSO-developed consensus policies left much implementation work to do. But the need for implementation work ran headfirst into demands from the business community to move forward quickly, in light of their significant investments in preparing for new TLDs.
"When new TLDs were approved in 2008, the world outside ICANN saw it as a done deal," Van Gelder observed. Many expected the program to be ready as soon as 2009, but implementation work dragged on.
"The pressure comes from the coming together of commercial business ideals with a model which really isn't one that was made for business at all," Van Gelder said.
The consensus policy principles for the new TLDs provided that "Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law."
The principles went on to state that strings should not be confusingly similar to existing TLDs or a reserved name. The principles acknowledged a tension between the desire to protect trademark rights and the interest in promoting freedom of expression.
The principles left for implementation the work of designing a system to achieve those goals.
The applicant guidebook represents the implementation of those policies, but ICANN is still working to finalize certain details of the program, including rights protection mechanisms in the new TLDs trademark clearinghouse and the uniform rapid suspension program.
"If defining policy and implementation was easy, people would have done it ages ago," Emily Taylor, former chair of ICANN's WHOIS Review Team, and a consultant with the law firm Sipara.com, Oxford, United Kingdom, told BNA. "Even when you have a really good, clear, simple enunciation of policy--which ICANN just doesn't--it is still difficult to implement."
Developing a "policy" is the easy part, Taylor said. "Implementation of any policy takes sustained effort, ingenuity, money, staying power, and external review," she added. Taylor compared the process to data protection regulations in the European Union. Though the EU has never changed the eight data protection principles, it revisits their implementation. "The principles have stood the test of time but everyone agrees that implementation is a total mess."
Mueller suggested that ICANN needs a method of determining the intent of a policy approved through the bottom-up process, asking whether an implementation of that policy would alter its intent.
"Insert checks and balances along the way," Mueller remarked. "Or throw it back to policymakers if the intent is ambiguous."
Allegations of improper efforts to modify ICANN policies through implementation projects have targeted trademark-related new TLDs projects beyond the work to protect the IOC and Red Cross/Red Crescent marks.
"This has always been an issue," Mueller said. The issue reached a crisis point when ICANN convened working teams to develop trademark protections for the new TLDs, Mueller said.
Trademark protection recommendations developed through ICANN's Implementation Recommendation Team and Special Trademark Issues Working Team have been singled out as potential efforts to engage in policymaking outside the required GNSO processes.
The teams' recommendations culminated in ICANN's adoption of the new TLDs program's trademark clearinghouse and uniform rapid suspension system.
"From the standpoint of civil society people and even some registrars and registries, the IRT was an attempt to re-do the trademark protection policies," Mueller said. "By labeling it 'implementation,' the staff and board essentially said 'It's OK to do this if we call it implementation,' " he added.
Van Gelder expressed a similar view, "The trademark clearinghouse is clearly an area where there is an attempt by some groups to redraft policy that has been arrived at after a consensus process from the community."
The IRT and STI recommendations are not the end of the debate surrounding the adoption of trademark protections for new TLDs. ICANN staff, along with representatives from ICANN's business, intellectual property, and internet service provider constituencies, as well as noncommercial, registrar, and registry stakeholder groups, developed a strawman proposal during a series of November meetings in Brussels and Los Angeles.
The strawman proposal would extend by thirty days the new TLDs program's required trademark claims service and expand the categories of marks eligible for registration in the trademark clearinghouse. A second proposal would allow brand owners to pay to have their marks included on a block list for the second level of all the new TLDs.
"The strawman proposal is an interesting new development in ICANN's way of doing things," Taylor said. "It's dividing the community along very familiar lines," she added. "It's a bit like trying to ... build the plane while it's in flight."
ICANN CEO Fadi Chehade referred the proposal to the GNSO for consideration, and ICANN staff published it for public comment.
The GNSO discussed the strawman at its December meeting, and will explore it again Jan. 17. Public comments were due on the proposal Jan. 15, and raised familiar arguments both for and against the added protections.
Trademark owners contend, however, that the strawman proposal is nothing more than an implementation project. "The proposals represent incremental, minor changes which should require neither a PDP nor extensive analysis and discussion," wrote the ICANN Intellectual Property Constituency (IPC) in its Jan. 15 public comments on the strawman.
"[T]he proposals do not seek to and would not establish or be based on any new or different [rights protection mechanism] policy[,]" the IPC wrote. "Rather, they seek to ensure that the RPMs being established as part of the Trademark Clearinghouse set of RPMs (e.g., Sunrise Period and Trademark Claims Services) are sufficient to meet the goals of the underlying policy."
"These changes are just implementation," the IPC added.
Steve DelBianco, NetChoice, in comments submitted on behalf of ICANN's Business Constituency, expressed a similar view.
"[I]t's essential to remember that TM claim notices create no new rights for TM holders, as some have asserted[,]" DelBianco wrote. "Rather, these notices help ICANN fulfill its obligation to inform registrants when their selection or use of a domain name might infringe the existing legal rights of others[,]" DelBianco added.
The Accountability and Transparency Review Team, convened pursuant to ICANN's Affirmation of Commitments with the Department of Commerce, addressed this topic in 2011. The team recommended that ICANN produce a document specifically setting forth the topics that are subject to policy development processes and those that are generally within the ICANN Board-level organizational administration function.
The team urged ICANN to improve the processes through which the board obtains advice from the ICANN community beyond the traditional public comment process.
Jumping off of that effort, ICANN staff convened a session to explore the topic at ICANN's most recent public meeting in Toronto.
Staff recently published a draft framework for distinguishing between policy and implementation, and plans to hold another session on the matter at ICANN's next public meeting in Beijing, April 7-11, after soliciting input on the report from ICANN's supporting organizations and advisory committees.
ICANN's GNSO Council is slated to discuss next steps Jan. 17.
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