BRUSSELS – In an arm-wrestling exercise, governments and the Board of the Internet Corporation for Assigned Names and Numbers (ICANN) last week tried to reach common ground on intellectual property rights protection and governments’ ability to intervene with applications for new top-level domains that they see as “sensitive” or “vulnerable” like .nazi, .gay or .bank.

Governments at the February to 2 March event in Brussels called for special rights to raise objections during the application process to certain top-level domains (TLDs). From a total of 40 requests for such rights, ICANN accepted more than a dozen on the spot, but strongly rejected just as many.

For more than five years, ICANN has been working on a process to allow the regular introduction of new name zones on the internet. Besides the application procedure, the negotiations are clearly also about the role of governments in governing and managing the global name space.

The Brussels meeting was the first of its kind, welcomed by many government officials like Maimouna Diop from Senegal. Had ICANN responded more diplomatically to the governments earlier, the Brussels meeting perhaps would not have been necessary, one of the observers who were not allowed to speak at the meeting told Intellectual Property Watch.

Governments Granted Early Warnings, Advice and Objections

Governments who participate in the ICANN Government Advisory Committee (GAC) regularly reject any notion that they will become involved in the management of the day-to-day operations of the domain name system (DNS). So Canadian GAC Chair Heather Dryden during the Brussels meeting underlined that the GAC certainly was only “giving advice”. The GAC has “a role in giving public policy advice on issues which we think pertain to public policy, and that can be anything,” said Bill Dee, representing the European Commission.

Yet with regard to “sensitive” TLDs, one of the highly contentious issues, the GAC is seen as wanting to be able to put the brakes on an address or, if governments see fit, an applicant.

Governments gathered in Brussels did not support a far-reaching proposal tabled by the US in February for a de facto government veto on zones that might be seen as offensive by western (.nazi, .sex), Arabic (.gay, .mohammed), or Asian (.tibet) governments. But the GAC still requested to be able to give “early warnings” to applicants and/or ICANN and “advice” against TLDs the GAC agrees could be problematic.

“We take government advice as a serious matter, but not terminal,” Peter Dengate Thrush, Chairman of the ICANN Board, told Intellectual Property Watch. According to its bylaws, ICANN can follow GAC advice or reject it while giving the GAC its reasoning for it. On the other hand, Dengate Thrush accepted requests to grant free of charge objection rights against TLD applications for geographical names that are not yet protected under the current applicant guidebook, like country, region or capital names.

Dengate Thrush, in summarising what ICANN called “current thinking” to be developed further, said the ICANN Board could agree in principle that governments in such cases are “not like any other party and should pay fees.”

“In most of those circumstances,” he said, “I think we accept the government is acting on behalf of probably unrepresented parties.” Yet ICANN has to limit what could be used as a “blank check,” he said. The ICANN board and staff will try to find a “per-dollar” or “number of objections” limit.

Capture of GAC by Individual Governments or Businesses?

Despite the cautious acknowledgment by the ICANN Board about the special role of governments, Board members also had some tough questions for governments and some concerns. For instance, Dengate Thrush asked how governments would prevent their processes from being captured by individual governments or individual pressure groups around any particular issues.

The ICANN Board therefore put its foot down and rejected another core request from governments, an extension of the so-called community category to “regulated industries” and also, as US GAC member Suzanne Sene explained, to sectors that had been “the target of, or been vulnerable to abuse.” If accepted as community domains, objections could be filed against these kind of domains.

Sene also asked for more intensive “vetting” of these, arguing that every ministry of finance, for example, was prepared to make an intervention if an applicant for .bank had not been checked extensively.

ICANN Board member Bertrand de la Chapelle warned that such a broad extension of the concept of community TLD might be a “perfect argument to say that dot music could fall in this category.” “If you look at international measures, there are several countries where the main takedown on domain names is basically oriented towards possible infringement of copyright,” he said. Other potential victims of stricter policies could be .video, .film or .movie.

As to how the more intensive screening should be realised, and how the various concepts of what is considered a crime in the US and elsewhere would be resolved, remained an open question.
This is also true for questions about the full list of law enforcement authorities with which future registry operators have to cooperate.

International cooperation is quite common, said Sene. Her Brazilian GAC college, Alvaro Galvani from the Brazilian Ministry of Foreign Affairs, reminded meeting participants that the GAC had agreed earlier that “any measures regarding law enforcement should also respect applicable law and requirements concerning the processing of personal data, such as privacy, accuracy and relevance, just in order to have a balanced approach in any idea regarding law enforcement.”

Concerns of European Union data protection regulators with regard to completely open Whois data in fact have already been overruled once more by much less privacy-sensitive US standards. Whois data is the registrant contact information underlying every domain name.

ICANN Restraint on Trademark Protection Rights

With regard to further protection of trademark rights in the application process, ICANN has rejected nearly half of the requests brought by governments, some with strong words from Board members.

ICANN’s Board flatly rejected extending the protection of trademarks registerable in the Trademark Clearing House and eligible for quick takedown after a Uniform Rapid Suspension (URS) to typographic variations and terms containing the mark.

The ICANN Board could not see how it should grant greater rights than granted in the original trademark. “We’re not in the business of expanding the concept of trademark infringement,” Dengate Thrush said.

Other proposals on making the URS easier to use for rights owners and also very cheap were also only partly accepted. Rights owners should, in the ICANN Board’s view, still give “clear and convincing” evidence when filing a URS complaint. “Preponderance,” as proposed by the governments, is not enough. The same also shall remain in place for the Post-Delegation Dispute Resolution (PDDRP) Process.

Bad faith also should be a condition for the fast suspension granted by the URS. Cheaper costs could be considered, ICANN said, but a third party dispute resolution provider must provide the services for the cost. Governments wanted to make the fee for URS complaints as cheap as $200-300 per case. With regard to the PDDRP, nearly all requests failed.

With regard to the many clauses on IP that the governments took issue with, the ICANN Board pointed to the hard-won consensus of the ICANN stakeholder groups, including the ICANN IP constituency. A special working group, the Independent Review Team, came up with the URS, PDDRP and Trademark Clearing House.

To reopen the complicated IP issues would also raise the more general question of how far the Board could independently step over community consensus, Dengate Thrush said, a question the GAC had raised with regard to the change from the original registry-registrar separation decided upon by the Board.

Why governments reopened the IP issues was explained by some governments like the United Kingdom and Denmark with big brand owners knocking on governments’ doors. Sitting at his table were “the likes of Shell, BBC,” said Mark Carvell from the British government, and they were complaining that “they weren`t being listened to anymore.”

“They were saying actually this process – the process from IRT onwards – actually had detached them,” Cavell said. The big role trademark protection was playing in the meeting certainly raised some concerns, said Olivier Crépin-Leblond, attending the meeting for ICANNs At large Advisory Committee.

How much change ICANN will now make in its applicant guidebook is still an issue of ongoing re-writes, both smaller and bigger, as the majority of government issues accepted by ICANN were accepted “in principle” by ICANN’s Board while not accepted in the proposed form for implementation.

ICANN expects to find agreeable solutions for these while waiting for clarification government officials had been unable to give on the spot about how they envisage implementation. For example, the Board agreed it would not differentiate between the source of registration of trademarks.

The German government warned that the draft applicant guidebook discriminates against non-Anglo-American trademark systems that do not have “substantive evaluation”. While agreeing on the principle, ICANN’s chair said the organisation would also have to be careful not to invite trademark squatters into the system. Some kind of proof of use has to be established.

Governments have to prepare for all variants of follow-ups. They will have to check on the fully agreed issues, continue negotiating on items “agreed in principle,” and prepare for what is called bylaw negotiations, where disagreement will not go away.

At the end of the three-day meeting the climate in Brussels got tense again, when governments made clear they were not really prepared to enter into bylaw negotiations by another round of GAC Board-only talks alongside the regular ICANN meeting in San Francisco (13-18 March).

Only after the bylaw negotiation is finalised will the ICANN Board in theory be free to start the new TLD process. A start of the new TLD application process in 2011 is still not a done deal, and some observers from registry- and new TLD-hopefuls said they are frustrated.