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IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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    Debate In Beijing: ICANN As Online Content Regulator?

    Published on 12 April 2013 @ 1:06 pm

    By for Intellectual Property Watch

    The publication by governments of additional safeguards for new top-level domains at this week‘s 46th meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) sparked warnings that the private net management body should avoid becoming a content regulator.

    With ICANN getting close to the start of new TLDs (like .web, .hiv, .berlin) last minute additions to the application procedure made by the ICANN management recently to answer complaints by stakeholders – for example, governments or the Intellectual Property Community – led to harsh questions about the circumvention of the routine procedures of the self-regulatory ICANN bodies during the meeting.

    The support of governments for the .africa-application of the Commission of the African Union was not a big surprise. Governments advised the ICANN Board to stop the competing application, and also the application of the Bahrain-based Internet Exchange Point GCCIX application for .gcc.

    GAC asked that applications from online retailers Amazon, Patagonia, Vin and Vine, several Chinese City applications and a number of others seeking geo-TLDs not proceed after the initial evaluation. What came be as a bigger surprise to the community was the long list of additional safeguards the governments want to implement via “GAC advice,” a statement by governments that ICANN has either to follow or further discuss with the governments.

    Governments in their Beijing Communique advised the ICANN Board that new TLDs applicants had to verify and check Whois data, data listing the domain name owner. They should mitigate abusive activity, including the “distribution of malware, operation of botnets, phishing, piracy, trademark or copyright infringement.”

    ICANN is not “the proper forum for combating other sorts of content-based violations of the law, because the law varies from jurisdiction to jurisdiction, and one person’s copyright infringement is another person’s fair use criticism and one person’s trademark infringement is another person’s criticism using a trademark to call out a brand that is abusive toward consumers.” – Wendy Seltzer

    With regard to sensitive Web address strings and protected markets the governments wanted registries to oblige registrants to comply with all applicable laws including laws on “privacy, data collection, consumer protection, fair lending, organic farming, disclosure of data and financial disclosures.” Registrants of these sensitive addresses have to have an abuse point of contact, normally reserved for network operators. The list of categories in which the GAC wants to see stronger safeguards includes domains potentially addressing minors (such as .kids, .toys, .games), environmental (.earth, .eco, .organic), health (.doctor, .hiv, .diet), but also what the GAC describes as “intellectual property” related TLDs (.audio, music, .movie, .fans, .software and many others).

    “The new GAC … advice is really a complete redesign of the underlying policies for approving new top level domains,” warned US academic Milton Mueller, speaking at the ICANN’s public forum in Beijing yesterday. “The categories it has created were not part of the Applicant Guidebook (AG) and the criteria for acceptability that they intend to apply to those categories were not part of the AG or any GNSO policy,” Mueller said. The GNSO (Generic Names Supporting Organization) is the self-regulatory body in charge of policymaking.

    Privacy expert Wendy Seltzer, like Mueller active in the Non-Commercial Stakeholder Group, warned that ICANN is not “the proper forum for combating other sorts of content-based violations of the law, because the law varies from jurisdiction to jurisdiction, and one person’s copyright infringement is another person’s fair use criticism and one person’s trademark infringement is another person’s criticism using a trademark to call out a brand that is abusive toward consumers.”

    A former US representative in the GAC, US lawyer Becky Burr, also appealed to the ICANN Board, it should “think carefully about allowing ICANN to be used to achieve regulatory regimes that governments have tried to achieve over years and years of debates in international regulatory organisations, particularly when they have not even been implemented those regulatory regimes in their own sovereign territories. ICANN should not permit itself to be an end run around WIPO, WTO, competition authorities and other expert agencies.“

    Jeff Neuman from Neustar asked to allow the GAC advice, which normally goes directly to the Board, to be put out for public consultation. “ICANN must stick to its limited coordination mission and not venture down the endless spiral of content regulation,” he said.

    Only Andrea Glorioso, member of the GAC for the European Commission, reacted to the harsh words by referring to the reference to human rights, international and applicable local law in the preamble clause of the GAC advice. Glorioso, who said he could only speak in his personal capacity in the situation, welcomed a broad consultation on the GAC safeguard advice which he said he expects to be surprisingly welcome to the broader public.

    Monika Ermert may be reached at info@ip-watch.ch.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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