Democracy is hard to achieve and harder to maintain, especially when dealing with bodies that, in its name, seek to infiltrate and distort egalitarian processes. This is exactly the case with the Not-for-Profit Organisations Constituency (NPOC), which recently submitted to the ICANN Board a Notice of Intent to form a new constituency existing within the scope, mandate and mission of ICANN’s Non-Commercial Stakeholder Group (NCSG). According to NPOC’s statement “membership is open to any not-for-profit organization/NGO with missions such as: philanthropic, humanitarian, educations, academic and professional development, religious, community associations, promotion of the arts, public interest policy advocacy, health-related services and social inclusion”. This new constituency does not require that such organizations are commercial or non-commercial in nature or whether they are meant to serve commercial or non-commercial interests. So, what does a constituency that fails to distinguish between commercial and non-commercial interests want within a purely non-commercial group?
Simply put, NPOC wants to dilute the role of NCSG within the ICANN community. Starting with the very unsuccessful and unimaginative choice of name (one would think that a bunch of trademark lawyers would be able to understand what a first year law student would pick up: NPOC is confusingly similar with NCUC), NPOC appears to have a more fundamental goal: to promote trademark and other commercial interests using the non-commercial platform. What is wrong with this picture?
Well for starters, NPOC does not belong and should not be part of the NCSG. The fact that this new constituency fails to distinguish between commercial and non-commercial interests and make a decision which to advocate for manifests its highly problematic mandate; it demonstrates a lack of philosophy, which ultimately impacts upon ICANN’s multistakeholder model; it jeopardizes the role and mandate of civil society in other fora, like the Internet Governance Forum.
Reading the reasons that obliged a group of certain individuals to proceed to the formation of the NPOC is like reading a mission statement by trademark corporations and their lawyers. It has no originality and no true direction. It is actually the case that when trademark issues where discussed, existing members of this constituency were sitting amongst a panel of trademark lawyers and brand owners. If that is the case, I will again ask, why do they not seek to become part of the Commercial Stakeholder Group (CSG)?
More substantively, however, the formation of this group is based on the fact that certain individuals do not agree with the policy direction of NCUC/NCSG. And, the main difference seems to be trademarks and NCUC’s approach in ICANN’s trademark policies. As an active member of NCUC’s trademark policies, I would like to make something clear to all of you. For trademarks, as for every other policy issue, NCUC has always sought to apply the traditional standards of trademark law and to address the same concerns trademark law addresses in the offline world. These are freedom of expression and fair use and compliance to the limitations and restrictions of the trademark right. And, NCUC’s direction was not taken arbitrarily or without consultation with its members. NCUC has always turned to its members seeking advice and opinion and its policy statements have been a reflection of consensus and the rule of the majority. This is what democracy is about. It is about disagreeing but accepting the will of the many. Obviously, NPOC does not adhere to such democratic standards; it uses democracy as a vehicle for sustaining the will of the few.
Under the pretence of advocating for non-commercial users, NPOC is trying to squeeze itself into the ICANN process and it is already indicating its intention to operate as the mouthpiece of the trademark community. We already know that NPOC will disagree with NCUC. This is what this constituency is all about. The vision of this constituency is based on this account. This can only mean one thing: non-commercial interests seem to threaten organisations like ICANN.
And here is a thought for all of us to understand what types of organizations may join NPOC: not-for-profits, just like ICANN!!!