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 |
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