Discussions at annual meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Costa Rica have been significantly dominated by the requests submitted by the International Olympic Committee (IOC) and the Red Cross and Red Crescent movement regarding the special protection of their names at the top-level domain name. This issue has actually been at the ICANN’s agenda for quite some time now, but it reached its pinnacle yesterday (March 14, 2012), when, at the request of the Non-Commercial Stakeholder Group (NCSG) the issue was deferred, a move which meant that the Generic Names Supporting Organization (GNSO) Council was unable to vote on this issue. For many, this move signaled the end of ICANN, as we know it, an apocalyptic end to the Internet’s biggest investment – the new gTLD program.

Being present at ICANN 43 and a member of NCSG and of the Drafting Team that has debated on this issue, I feel the need to clarify some things. First of all, the world is not going to come to an end and the new gTLD program is not in jeopardy. It would be outrageous to even suggest that a process, involving a debate of more than six (6) years is dependent upon granting these special protections. This scenario would send a bad signal to the rest of the Internet world and its institutions as to where ICANN’s true priorities lie. And, the world is watching!

But, more importantly, one thing that needs to be made clear is that both these organizations are already ‘specially’ protected in this first round of the new gTLDs. According to the latest version of the Applicant Guidebook, the terms of the International Olympic Committee and the Red Cross and Red Crescent Movement “are prohibited from delegation as gTLDs in the initial application round”. This is clear. These terms are untouched and have been elevated to a completely different status, in comparison to those of other organizations, intergovernmental or not, that one can argue have a more significant mission, at least compared to the one of the International Olympic Committee.  (Think here of UNESCO, WIPO, etc.)

Yesterday, the debate, however, was not about substance – it was about process. The reason NCSG requested the deferral was not about whether these organizations deserve these protections; the reason was simple: the public comment period for the Drafting Team’s recommendations is not over and, thus, the GNSO cannot come to a decision unless the public comment period has expired. It is actually surprising that the GNSO did not feel the need to uphold the public comment period, an issue that constitutes a paramount element within ICANN’s processes and is part of its Affirmation of Commitments mandate. Under the Affirmation of Commitments, the document that establishes ICANN’s bottom-up and transparent model, “ICANN commits to maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decision-making will reflect the public interest and be accountable to all stakeholders”. In particular, ICANN is to achieve these set goals by “continually assessing and improving the processes by which ICANN receives public input (including adequate explanation of decisions taken and the rationale thereof)”. So, questioning the need for the public comment period to make its full circle by some members of the GNSO Council is what puts ICANN and its processes in danger; it is not the deferral, which is aligned with these very principles.

Plato famously said: “a good decision is based on knowledge and not on numbers”. For ICANN, this knowledge derives from public comments – public comments constitute the only way for ICANN to understand and learn the views of the wider community. So, the idea that we can circumvent such a pivotal process within the ICANN ecosystem and sacrifice due process in the name of speed is not only dangerous but it also sends a very bad message as to the democratic fractions that are supposed to be part of ICANN’s multistakeholder model.

Comments submitted by Dr. Konstantinos Komaitis regarding the “Proposals for protection of International Olympic Committee and Red Cross/Red Crescent names at the top-level”

I would like to thank the Internet Corporation for Assigned Names and Numbers (ICANN) for this opportunity to submit comments in relation to the “Proposals for protection of International Olympic Committee and Red Cross/Red Crescent names at the top-level” domain names.

First of all, I would like to mention that I am the current chair of ICANN’s Non-Commercial Users Constituency (NCUC) and one of the members of the Drafting Team (DT) that has submitted these recommendations for consideration by the wider Internet Community. In this particular instance, however, I am speaking in my own personal capacity as an academic and a Greek citizen.

My concerns over these recommendations relate to issues of process, substance and effectiveness. In particular, I feel that this whole process takes a path that goes contrary to the idea of the bottom-up normative assessment the ICANN community has strived to develop over the years and opens a Pandora’s Box with ramifications that will be impossible to reverse.

The primary flaw of this process that led to these proposals is that it has failed to distinguish between the requests made by the International Olympic Committee (IOC) and the Red Cross/Red Crescent movement and treat them as two separate issues. These are two organizations, which engage in completely different and unrelated activities, are currently being offered different levels of protection through traditional international and national legal instruments and their contribution to society differs significantly. In particular, the fact that the Red Cross/Red Crescent movement is involved in promoting and ensuring humanitarian relief in times of national and international catastrophes offers, at a preliminary level, a more sound foundation for the potential protection of its names and terms in the Domain Name Space (DNS); on the contrary, IOC is an organization, which receives a great amount of sponsorship deals which ensures “more than 40% of Olympic revenues”[1] (some of its commercial partners include SAMSUNG, COCA COLA, GENERAL ELECTRIC (GE) MCDONALDS, VISA and PANASONIC) and its role, albeit significance within the sports industry, should not be mixed with humanitarian or public interest values.

On the issue of process, it has been obvious that ICANN departed significantly from its long-fought and established bottom-up processes. ICANN’s Board decision to prohibit the “delegation [of these names] as gTLDs in the initial application round”[2] went against the bottom-up establishment within ICANN and undermined its main policy multistakeholder body – the Generic Names Supporting Organization (GNSO) Council. (At this stage, it is important to clarify that a decision has already been made concerning the protection of these terms in the first round). This new set of recommendations seek to go beyond and re-enforce the Board’s decision by creating a panoply of various protections and safeguards that, one can argue, re-interpret international law.

What is even worse is the unreasonable pressure that has been placed upon the Drafting Team to come up with these recommendations, which is manifested by the rush and the urgency of this public comment period and the likelihood that the GNSO Council may be asked to vote on this recommendation during the 43rd ICANN meeting in Costa Rica and only a week after the public comment period has opened. This means that the GNSO, when making its decision, will, most likely, not have the appropriate input of the community, within and outside ICANN; this is something that can potentially undermine any of its future work.

On the issue of substance the recommendation of the Drafting Team enters a dangerous territory. Under recommendation 1 -  “Treat the terms set forth in Section 2.2.1.2.3 as “Modified Reserved Names” – terms like ‘confusingly similar’ are vague, thus their meaning can easily be twisted, whilst there is also an obvious attempt to disincentivize even legitimate rights holders from engaging in any type of registration at the top-level name [paragraph c (ii) 3 of recommendation 1].

Even more problematic is recommendation 2, which seeks to re-interpret international Treaties and expand the rights traditionally afforded for these terms. This is particularly obvious in the case of the Olympic mark, which seeks to protect the names in multiple languages, including those of States that have not signed the Nairobi Treaty on the Protection of the Olympic Symbol. The Nairobi Treaty is the only standard that can be used by an international organization like ICANN in order to comply with the rule of law. ICANN is not a legislator and should not accept a ‘definitive list’ of languages that constitute an arbitrary compilation of national laws.

Finally, there is no clear justification regarding recommendation 3. Considering the novelty, the time constraints and the controversial nature of these recommendations, in the likelihood that these recommendations pass, ICANN should call for a review after the first round of delegation of the new gTLDs has occurred in an attempt to reassess them.

Considering effectiveness, these recommendations set a very dangerous precedent and send a bad message. Although reassurances have been made that this process is meant to address only the names of these two international bodies, it is the case that, should they be implemented, other international entities and institutions will have valid claims to demand the same levels of protection.[3] If pressure from these other international bodies intensifies, ICANN will have no option but to succumb. Accepting these recommendations leaves the ICANN community with no grounds against other international organizations and sets a dangerously flawed practice for the new gTLD program.

Being a Greek citizen, I am particularly troubled by the levels of protection these recommendations seek to provide to the terms ‘OLYMPIC’, ‘OLYMPIAD’ and their variations in multiple languages. Greece is the place that gave birth to the Olympic games and promoted the Olympic spirit that the world currently enjoys. The idea that the Greek community of Olympia (the place which marks the ceremony of the lighting of the Olympic flame) will have to ask permission from the International Olympic Committee to use a term that is part of its cultural heritage is highly problematic, illegitimate and goes against how the Applicant Guidebook views communities.

I hope the ICANN community takes a much closer look to these recommendations and think carefully about the potential multifaceted impact they may have.

Respectfully submitted,

Dr. Konstantinos Komaitis,

Senior Lecturer in Law

[1] http://www.olympic.org/sponsorship

[2] 2.2.1.2.3 of the Applicant Guidebook

[3] http://www.komaitis.org/1/post/2011/12/we-dont-accept-any-more-reservations-icann-pressured-to-reserve-names.html

The last few months have seen the Internet facing one of its most significant challenges in relation to its basic freedoms. It all started with the Combating Online Infringement and Counterfeits Act (COICA), which then became the Protect IP Act (PIPA) and, in its worst manifestation, the Stop Online Piracy Act (SOPA). The common denominator of all these legislative proposals is the apparent willingness of the intellectual property industry to fight piracy and other types of infringement of intellectual property rights – at any cost. I emphasize ‘at any cost’ because this is the point where the legitimate claim to deal with piracy turns into an indecent war, waged against the Internet’s and society’s fundamental freedoms. In this regard, the fact that parts of the most powerful intellectual property interests are not willing to understand the new reality of digital content and creativity, creates a unique problem for a society, which has become so ‘gracefully’ attached to the Internet that it turns into a story worth-telling for the generations to come. It is really important, therefore, that we (at least) pay attention to some issues that have manifested themselves through this process.

The first thing we can observe from this almost 18-month exercise is that intellectual property protection has become the driver of Internet governance. The protection of copyrights and trademarks has lately dominated all Internet governance discussions at the ICANN, the OECD, the European Union and IGF levels – to name but a few. Camps for both sides have been created and debated extensively, whilst America has been sending conflicting messages regarding its own vision of Internet freedom. The world has heard the Secretary of State Hillary Clinton declaring America’s support for Internet freedom, whilst simultaneously witnessing an attempt by the US Congress to pass PIPA and SOPA, suppressing these very freedoms. At an international level, this insistence on intellectual property has given the Internet governance debate a problematic agenda, which focuses on one specific issue. It has distracted attention from other significant issues, creating a faux presumption that the Internet is all about intellectual property rights and their protection.

Another (anthropological) observation is that everybody seems to be talking about piracy - children, grannies, academics, politicians, journalists, civil society groups, the Hollywood, Record Labels, famous and independent artists, the Internet community - all take sides in favour or against the American proposals. Editorials have been written on the impact of PIPA and SOPA and Twitter has been on fire with hashtags encouraging followers to ‘retweet’ and raise awareness. This is significant. The fact that, unlike previously, such a debate is no longer happening within some closed doors of an international organization or other political institution, but instead everybody is involved is truly impressive and we should not take it lightly. This is the greatness of the Internet – it has spread the word that the US is proposing legislation that will change the way we interact on the Internet. And, Internet users have reacted. They are discussing it on Facebook, they blog and tweet about it, they follow and post comments and, in general, they engage in a debate they feel directly concerns them.

Here, an observation of governance can also be made: multistakeholderism is working. In this framework of stakeholder cooperation, we have experienced many changes and shifts. Actors have become more involved and much of the debate on piracy has turned into a debate about freedom of speech, American imperialism and the future of the Internet. Suddenly, the intellectual property community is left behind and civil society groups with the technical community have come together to support the Internet. This was an organic alliance and it appears to be based on the fact that the intellectual property community has managed to alienate the rest of the Internet community. Throughout this exercise, the intellectual property community denied to listen to the techies, who were warning about the dangers of tampering with the DNS and the infrastructure of the Internet; civil society groups were neglected when they talked about the impact on these proposals on free speech, requesting a balanced approach that respects the rights of fair use and freedom of expression. So, the IP folks should really not be frustrated that discussions on PIPA and SOPA were put to rest for the time being and many of their supporters are changing sides. This happened because, in a true multistakeholder environment, where Wikipedia, Amazon, Google and Facebook protest along with civil society, their voices are heard over and above businesses. This is the Internet at its very best.

An additional (political) observation is the wrong incentives SOPA and PIPA can provide to other countries. It has long been a stated fact that certain countries are unhappy with the existence of the “A” Root in the US and the de facto control the US Government appears to have on the DNS. This is a great opportunity for these countries to make some more noise. The fact that both SOPA and PIPA wish to manipulate domain names by taking them down, redirecting them or filtering their content can be a very persuasive argument against the kind of management and administration the US government is exercising upon this global Internet resource. What appeared to be a pure political argument becomes a legitimate one. This, of course, does not suggest that any other country will do a better job, but it certainly attests to the very fact that the US is failing to uphold its end of the deal and conduct appropriate administration of the DNS.

Finally, another (necessary) observation is that this is not the end of the road for either of these proposals or for the overall debate on intellectual property. This is fine. But, the nature of the debate now has to change; it cannot continue under the same premise that only existing creating industries should be protected and it can certainly not continue with only one participant on the negotiations table. The intellectual property community needs to start engaging with the other stakeholders and needs to listen. International institutions, where required, need to step up and need to become careful observers of this debate; civil society groups need to continue tirelessly their work and effort; the technical community needs to persist on preserving the stability and security of the network; and, governments, need to start resisting their lobbying processes and their lobbyists.

Following this debate closely myself, I feel many times like I am watching a Hollywood blockbuster movie - A movie about destruction, revenge, alienation and division, starring the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the US Congress. Guest stars: Google, Wikipedia, Amazon, Facebook, Twitter, Anonymous and civil society.

New generic Top-Level Domain Names (gTLDs) are all about innovation, entrepreneurship and creativity; they are about identifying new entrants, opening up competition and providing the domain name market with the opportunity to explore new means of interaction on the Internet. Equally, new gTLDs are a great opportunity for existing businesses and brands to reconsider their business practices and models and to adapt to new commercial realities and ideals. In both cases, however, it is important that some basic rules and principles are maintained so that terms are not abused, terms are assigned to their rightful owners and, where there are no rightful owners, a robust and fair process is in place to ensure that the assignment of words is done in a manner that does not endanger the Internet, does not confuse consumers or does not obstruct current societal structures.

I, for one, have been a proponent of new gTLDs from the early days of their policy development process within ICANN. I always believed that the existing gTLDs – and mainly the .com space – have created artificial scarcity, which is primarily responsible for much of the cybersquatting and the abuse trademarks experience. I do not share the same fears as those who argue that new gTLDs will create intolerable levels of cybersquatting or will necessitate defensive registrations from brand and trademark owners alike. As for the policy itself, I do not believe it is perfect and I feel that, for certain issues, ICANN could have taken a different direction, but, ultimately I recognize and respect ICANN’S multistakeholder governance structure and the decisions that have come out of it.

Lately, however, something has caught my attention, which can potentially create problems. Almost the same day ICANN opened up its application process, a tiny start-up was granted by the United States Patent and Trademark Office (USPTO) a trademark for .bank (registration number 4085335). What is the problem with this? The problem is twofold: first of all, there is a general principle within traditional trademark law, which instructs that generic terms cannot be trademarked if they are to reflect what the term means. In this context, a company would not be able to register the word coffee and sell coffee. This would provide an unfair competitive advantage to any company and would, most likely, excommunicate all other similar companies selling coffee. Secondly, by granting this application, the USPTO is essentially leaving ICANN and its Governmental Advisory Committee (GAC) with a big problem. Part of the whole exercise regarding the role of the GAC within the new gTLD process related to the GAC’s role; this issue was resolved with the agreement that the GAC would be in the position to provide early advice to any new gTLD application, effectively giving the GAC the right to torpedo and determine the success of an application, which the GAC believes it raises issues of cultural significance or is contrary to national laws. To this end, it is exactly names like .bank that the GAC had in mind when they were pushing ICANN to insert this provision within the Applicant Guidebook: “[The GAC may advise] ICANN that there are concerns about a particular application ‘dot-example’. The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision”.

Now, with the USPTO granting trademark rights for .bank, this early warning mechanism becomes superfluous, and multiple rights are created for .bank. On the one side, there are the rights of the trademark owner; on the other, there is the GAC which believes that the term .bank is sensitive enough to interfere and whoever applies needs to go through a scrutiny process; and, finally, there is also the rumoured applicant of .bank – a joint effort made by the American Bankers Association (ABA) and BITS, part of Financial Services Roundtable. So, in practical terms, what the USPTO has essentially done is to provide the opportunity to an independent entity to object the application of .bank by asserting valid trademark rights.

So, this is a mess and a mess that will only get worse unless trademark offices around the world stop granting trademark registrations to .generics. The way things are right now, the GAC may sign off the .bank gTLD to ABA and BITS, but the owner of .bank will have valid claims to stop this application process or at least demand some sort of financial compensation for giving up the name to someone else. And, if he is really pissed off or he wants to retain .bank for his own personal use, he can then sue for trademark infringement. In any case, the trademark owner is the only winner here and both the GAC and the American Bankers should feel very pissed off with the USPTO. At this stage, the only solution is for the USPTO to accept that they screwed up and recall this trademark.

It is not a secret that I have been (and I continue to be) against the requests made to ICANN by the International Olympic Committee (IOC) and the Red Cross for special protection of their names and their variations. I am mainly against because of the problems associated with these types of protection, the potential implications they may have and the fact that any attempt to reserve any names in the Domain Name Space will set a very bad precedent that will be detrimental to the whole new gTLDs experience. Well, the effect of this precedent is right upon us and, once again, ICANN is faced with a big challenge to find ways to accommodate the similar demands of intergovernmental organizations in the new gTLDs space. But, let’s take things from the beginning.

For quite some time now, ICANN has been subjected to a huge amount of pressure by IOC and the Red Cross to protect their names in the new gTLD program. This request, which was also vehemently supported by ICANN’s Governmental Advisory Committee (GAC), was meant to ensure that all the names associated with these two organizations (OLYMPIC, OLYMPIAD, RED CROSS, RED CRESCENT, etc.) are reserved under both the top level and second level domain names. As it normally goes, the justification is that these organizations constitute targets of cybersquatting activities, their non-profit nature (a point which is questionable given their involvement in multi-billion dollar licensing deals) does not allow them to spend money defending their brands as other purely commercial entities do and, in any case, such organizations should receive special treatment especially since Treaties and international commitments provide them with presumed privileges that could justify such levels of protection. Seeking a solution to this issue and given the pressure inflicted upon it, the ICANN Board agreed to initiate a process between the GNSO and the GAC on finding ways to address this issue; in the meantime, IOC’s and the Red Cross’s requests were accommodated – at least partially, as ICANN has committed to reserve their names in the new gTLD space but only for the top level domain names, stating, “the extraordinary step of blocking the requested names at the second level should not be taken as it would deny those with a legitimate interest or rights in registering those names at the second level, e.g., olympic.taxis and redcross.salt.”

I still think that this compromise is problematic and it is not because I don’t believe in the mission of these organizations or what they stand for. My problem is that these organizations are misusing trademark law and international Treaties to receive unprecedented levels of protection, especially when their names (in the case of ‘Olympic’ at least) conflict with other recognized rights, associated with traditional knowledge as well as cultural and geographical identifications. But, ultimately, it is the very dangerous precedent that such policy compensations set.

A recent letter from a number of Intergovernmental Organizations “on the Expansion of Generic Top Level Domains” to ICANN is a case in point. Based on the justifications used by the Red Cross and the IOC, several intergovernmental organizations are requesting ICANN to afford them the same privileges as these two organizations. So, if with IOC and the Red Cross we were stuck between a rock and a hard place, now we are in real trouble. The problem is simple - the argument that all these organizations should be afforded special protection, despite the very valuable work they are doing, is weak and flawed. In the letter, the organizations state that measures to protect their names can “find support in international legal norms”, citing Article 6ter of the Paris Convention for the Protection of Industrial Property, Article 16 of the Trademark Law Treaty and Article 2 of the WTO Agreement on Trademark Related Aspects of Intellectual Property Rights.

It is indeed the case that all these statutes mainly reflect the need for the protection of these organizations; but they are equally being referenced quite widely. In particular, Article 6ter, para. 1(a) states: (a) The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks [emphasis added], of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view.  And, para. 1(c) states: “The countries of the Union shall not be required to apply the said provisions when the use or registration referred to in subparagraph (a), above, is not of such a nature as to suggest to the public that a connection exists between the organization concerned and the armorial bearings, flags, emblems, abbreviations, and names, or if such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organization [emphasis added].” So, here we have provisions that commit to protect the names, abbreviations, flags, etc. of such organizations, but only in relation to trademarks. Neither of these statutes seeks to create or is willing to acknowledge special privileges like the ones being requested from ICANN.

But, the bigger picture here is the position that such pressures place ICANN. ICANN is not a trademark entity and was not created to confirm, amend or re-write trademark law. And, this is essentially what is being asked from ICANN - to interpret old Treaties into the realm of the Internet and, to do so, in a fashion that is not compatible with its governance structure. This is problematic.

It really took ICANN a lot of time to become a body that was not purely seen as a front for trademarks and their protection. The history of the organization is replete with examples of how the trademark lobby has used ICANN as the platform for many expansive policies. But, lately things have changed. For instance, the fact that ICANN resisted the adoption of the Globally Protected Marks List (GPML) is a credit to the organization, since its adoption would place ICANN as the new legislator of trademark law. The fact that such listed never existed and was requested by ICANN to do so is a clear indication of why ICANN should resist meddling with trademarks.

The current requests by all these organizations are not that far away from the GPML idea; they may not be asking ICANN to create something new or novel, but they are asking ICANN to interpret international law instruments and translate them into DNS language. This is not ICANN’s job and ICANN should refrain from engaging in such dialectic. Imagine, for instance, if the World Health Organization were to reserve its abbreviation ‘WHO’. With many existing entities making legitimate use of the word ‘WHO’, it would be contrary to existing trademark law for only one entity to use it. (Examples include the music band ‘The WHO’, ‘Doctor Who’, the biographical encyclopaedia ‘Who’s Who’, etc.). If ICANN complies with this request and continues to grant these privileges, it exposes itself to all sorts of problems. It is time we reconsider the way trademarks fit within the domain name space.

Below find the letter sent by NCUC regarding the PROTECT IP Act (PIPA) and the Stop Online Piracy Act (SOPA).

/uploads/4/7/0/1/4701503/pipa.pdf

The US Senate Committee on Commerce, Science and Transportation Hearing on ICANN’s Expansion of Top Level Domain Names on December 8, 2001 was all about strategy. The strategy was simple: while the world has its attention turned to the debate on the copyright legislative proposals of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, let’s have another ICANN hearing and try to re-open trademark protection for new gTLDs. And this time, let’s have a different crowd submitting the testimonies: Mr. Dan Jaffe of the Association of National Advertisers (ANA); Ms. Angela Williams, of the Young Men’s Christian Association of the United States of America (YMCA); and, Ms. Esther Dyson, first ICANN’s chairwoman.

What was heard at the Hearing was not something inspiringly new: brands will suffer and consumers will be confused. A lot was said about defensive registrations, how the Internet is a scary place for trademark and brand owners, how there is a possibility that child porn will proliferate, how cybersquatters can ‘blow us up’, how law enforcement will not be able to do their jobs and how US senators may not be able to register their names. Innovation was questioned in a much unconvincing way and much was argued about the presumed lack of consensus for the new gTLD program.

The new twist in this Hearing was the participation of non-profits, through the YMCA, which was used by the trademark community as the new vehicle to air trademark concerns and as a further attempt to demonstrate that if these organizations’ brands are suffering, then this should be enough to put the new gTLD program on hold. This might have impressed the Senators at the Hearing but it, ultimately, is a really weak argument. Non-profits are not trademark maximalists, especially in the way trademark interests are represented at the ICANN level. Non-profits are entities that protect their marks (not brands), but following the underpinning principles of goodwill, consumer protection, competition, etc. associated with the mark and the services they provide. So, I am not sure whether the YMCA’s testimony represents an understanding for NGOs and non-profits outside the US; in fact I am pretty sure it doesn’t represent the views of many NGOs and non-profits in Europe and, especially, in the developing world.

On the other hand, ANA’s message was simple: the new program is a threat to companies and consumers and it should be stopped. ANA has been particularly involved in this process after the Special Trademark Issues (STI) team recommendations were released, which were based on a consensus that the trademark community did not agree with. This consensus was highly challenged by ANA, on the basis that, since it didn’t reflect the views of the trademark industry and some non-profits, it was illegitimate. No matter what one thinks about ICANN’s consensus policies, these have been in place for many years, a lot of work to more accurately define it has been done and continues at the level of the GNSO, they are part of ICANN’s ecosystem of procedures and, in many cases, have been instrumental in the trademark community winning many policy battles. So, the idea that this consensus is not working is mistaken: it just didn’t work out this time for the trademark crowd.

I was quite puzzled with Esther Dyson’s testimony, especially the part where she argued that “the process of consulting with the public hasn’t really worked” and that she was representing Internet users, who will be confused through this expansion. There are two mistakes Ms. Dyson made: through NCUC for example, users have participated in the process and, for instance, concerns of free speech and freedom of expression (that no one at the meeting even dared to mention) have been addressed to the fullest extent possible within a multistakeholder model. (The difference is that, contrary to other groups, these groups have accepted the results of such multistakeholder recommendations.) And, as for the argument that users will be confused through this process is really not working any more. Users have become more savvy than any other time; by now the majority knows how to use the Internet, what to suspect and what to avoid. The idea that we need stronger intellectual property protection for the users reflects a time when our parents and grandparents were not logging on to Facebook and they thought computers were aliens.

So, what one should take from this Hearing is that the people who actually have been involved in this process, Ms. Fiona Alexander from INTA and Mr. Kurt Pritz from ICANN, both celebrated and gave their vote of confidence to multistakeholder participation. They both correctly insisted on the fact that the new gTLD program was a consensus policy and that its language is an attempt to represent the multistakeholder environment of ICANN. They addressed how all stakeholders participated in the various policy groups and that, although work needs to be done, a lot has happened towards ensuring that ICANN’s work on the new gTLD program reflects its multistakeholder community in a transparent and accountable way. This is a very crucial point and Hearings like this one demonstrate how foreign multistakeholderism is for many US politicians. So, here’s a suggestion: if we wish to have Hearings like this one, let’s do so, at least with an understanding of how ICANN works, where we were and where we are now. Because it turns out that Hearings like the one of December 8, are not constructive at all; they are highly disruptive, in a time when ICANN should be focusing on finalizing and cross-checking everything in order to make sure that the January 2012 launch goes as smoothly as possible.

The strong enforcement of intellectual property rights has been one of the most discussed topics and Internet sites and blogs (including this one) have dedicated much analysis on the latest twists concerning domain name takedowns, draconian copyright measures and, in general, the place intellectual property occupies within different Internet Governance fora. In the context of these discussions, I have started lately to wonder how strong enforcement of intellectual property rights can be justified in light of the commitments made by the liberal state to promote Internet freedom; because, at least from the outset and in light of recent intellectual property legislation around the world, these actions appear highly incompatible. (Only in the US, for instance, we have been exposed to three different legislative proposals – the Combating Online Infringement and Counterfeits Act (COICA), the PROTECT IP Act and the E-PARASITE Act – all of which have made the relationship between intellectual property and free speech harder than ever before). Considering that the common feature of all these proposals is to put in place strong enforcement mechanisms for the protection of intellectual property and given that this idea is slowly spreading (perhaps not as vociferously) in other parts of the world, how will Internet freedom and the principles associated with it (free speech, freedom of expression, etc.) also be sustained?

I was hoping that the recent letter sent by US Secretary of State, Hillary Clinton, could shed some light on what appears to be an issue regarding two highly incompatible and irreconcilable concepts. According to Secretary Clinton, “there is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of speech on the Internet”. Secretary Clinton is right-intellectual property and freedom of expression walk hand in hand – at least in theory. (I, also, don’t consider intellectual property and free speech incompatible or irreconcilable; it is rather the direction that intellectual property is taking that I see as making the relationship between intellectual property rights and free speech antagonistic and inconsistent). But, the letter does not do this job. Instead, Secretary Clinton re-affirms the US Government’s earlier commitment to protect both intellectual property rights and Internet freedom, without going, however, into much detail as to how this can be achieved.

There is, however, reference to the rule of law and this is something that I find particularly a very important point. According to the letter: “The rule of law is essential to both Internet freedom and protection of intellectual property rights, which are both firmly embedded in US law and policy”. I have always advocated that the rule of law should operate as a reference point for the policies and laws we seek to create and relate to the Internet. The rule of law can provide the justifications, can legitimize processes and can, in general, create balanced frameworks of principles and rules. But one thing we need to bear in mind is that the rule of law is a metaphysical ideal that is in constant transition and, to this end, should always be evaluated within a specific context.

The question, therefore, is which rule of law is Secretary Clinton referring to? Is she referring to the traditional notions of intellectual property law, where creativity and innovation are balanced against free speech and fair use? Or, is she referring to the rule of law that is based on the recent attempts by the intellectual property community to create law according to their own needs? So, in reality it is not whether the rule of law is to be upheld; the question is what this rule of law should look like and who should be responsible for transforming it from an abstract notion to a solid and tangible article.

It is an undisputed fact that today's intellectual property laws have been subjected to intolerable levels of lobbying, so much that we lost track of what we are seeking to protect. Intellectual property is an all-inclusive framework of creators, innovators and entrepreneurs at all levels; but, for instance, the current approach does not support any of these strands of individuals at the ‘ground zero’ level – the level that consists of those who are not yet part of the Hollywood clan - but need the Internet to imitate, ‘borrow’ and distribute ideas, advocate and criticise.

To this end, although I welcome references to the rule of law, at the same I feel quite disconcerted. I feel uneasy because we can still refer to the rule of law even if that law is based on arbitrariness, intimidation, corruption and bias or is the by-product of lobbying and intimidation or it justifies the creation of an environment where balance and transparency are not essential components. So, I suggest we are cautious when we refer to the rule of law as it can become meaningless through ideological abuse and over-use. As Professor Judith Shklar has adequately phrased it: “[The rule of law] may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter”. 

So ICANN 42 is over and it was, I think a great meeting. Senegal was a great host and the yassa chicken was delicious. There were some technical hick-ups, but nothing major enough to disrupt the ICANN-style debate. And, it was a pretty important meeting too. It was Dr. Crocker’s first meeting as the Board's Chair and he had to manage a Governmental Advisory Committee (GAC), which over the past year, in particular, had proven to become a threat to ICANN's miltistakeholder model.

And, there is not a more important time to preserve multistakeholderism! In a time where governments shut their ears to the rule of law, they give in to excessive lobbying and they appear to disregard processes based on checks and balances, ICANN (along with the IGF) are the only true and remaining environments that support multistakeholder governance arrangements. So, it was interesting to see how the relationship between Dr. Crocker and the GAC would play out. I think he did a pretty good job. He asserted his role without distancing the GAC or becoming their puppet. He has a technical background, after all, and he understands (perhaps better than the most of us) what the imposition of bureaucratic processes can potentially cause. But, that doesn't mean that he can make the GAC problem disappear.

The wish of the GAC to acquire a more decisive role within ICANN is getting more real and more threatening. The relationship between ICANN and the GAC has always been awkward, but became particularly problematic at the latest stages of the new gTLD program over intellectual property and competition issues. This time, although the tones were somewhat lower, they followed the same pattern of disruptive behaviour. The GAC had an issue with the way Registrars were not willing to implement a set of recommendations driven by the Law Enforcement Agencies (LEA). The Registrar community was not willing to accept these recommendations without initiating a Policy Development Process (PDP), a justification that left the GAC unimpressed and pissed them off.

Suddenly, Registrars became the most controversial group of ICANN 42. The GAC sought to recalibrate and assert its place by taking this issue straight to the Board, seeking to bypass the miltistakeholder model of the GNSO. This action by the GAC is problematic and manifests its inability to adapt to the new governance reality of the Internet. In general, governments find it difficult to accept that the processes have changed, having moved away from the bureaucracy associated with them; the decision-making process has been taken away from the hands of the governments. But, that shouldn’t mean, at the same time, that governmental input is not required. It does mean, however, that governments should accept the processes established by the community and participate ‘on an equal footing’.

In general, the ICANN community does a pretty good job in monitoring and fighting for the multistakeholder model. In contrast, it is the actions of the GAC that confuse and frustrate the multistakeholder community. Last year, this frustration had to do with the GAC's intervention on the trademark issues and its disappointing failure to support the multistakeholder model of the Special Trademark Issues (STI) team; in Dakar it was the GAC's wish to bypass the processes of the GNSO.

The GAC is proven to be a highly dysfunctional body. But, this follows the general pattern that governments have decided to follow in the context of Internet governance - a denial to see that they have entered an uneven battle with the Internet itself, its evolution and capabilities. The disappointing fact is that the GAC appears neither willing to adapt nor, at the very least, give a try to the multistakeholder model. It continues to adopt an arrogant attitude of superiority over ICANN although so far it has failed to provide good alternatives to the various issues; it continues to stall the various processes and create a negative environment amongst all ICANN stakeholders, who end up feeling de-valued; and, it continues to operate on what seems the position of a handful of governments.

This latter issue is rather troubling. Although reassurances are made every time that the GAC position represents consensus, one cannot help but wonder how real a consensus this is. In the open sessions, many of the governments do not even speak; in some instances, GAC positions are drafted only by one government; and, unreasonable and mistaken requests are made to satisfy certain and known interests. For example, after the Registrars turned down the GAC's request and the issue was brought to the attention of the Board, the US Government made the following ridiculous suggestion, citing an unverified discussion, which took place at the ICANN meeting in Singapore and which suggested that something like 20% of Registrars may be bad actors. I was told in Dakar by some Registrars that this was not a statistical fact, but a random figure. Based on this abstract example, in Dakar, the US Government publicly demanded that ICANN de-accredits these 'bad actors'. Just like that - without proper evaluation, without the courtesy to request an investigation on the issue. This is a problem. The fact that Governments are making these suggestions without realizing the potential impact they might have, is – by itself – a testament to their ignorance.

So, here we are fighting for multistakeholderism and the ability of the community to participate, succeed, fail, get angry, get passionate, get active - in one word ENGAGE. The GAC may appear as a collective body right now, but this is because they all appear to fight for the same goal. I am wondering whether once they achieve to ascertain their control over ICANN, this collegiality will continue or whether (a most likely scenario) we will go back to a dysfunctional, intergovernmental structure that doesn't understand the Internet and is all about sovereignty and dirty politics.

Participating in ICANN, therefore, becomes crucial. And, ICANN should encourage this participation and seek to support those policy directions that are made by – and for – the community.