FINISHED TRANSCRIPT
EIGHTH INTERNET GOVERNANCE FORUM
BALI
BUILDING BRIDGES ‑ ENHANCING MULTI‑STAKEHOLDER COOPERATION FOR GROWTH AND SUSTAINABLE DEVELOPMENT
OCTOBER 24, 2013.
11:00 BALI
WORKSHOP 253
THE DEBATE ON 'CLOSED' GENERIC TOP LEVEL DOMAINS
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This text is being provided in a rough draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
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>> WILLIAM DRAKE: Welcome. This is the workshop on The Debate of the 'Closed' Generic Top Level Domains. It is organized by the ‑‑ what is that? This is a CIVIL SOCIETY GROUP within ICANN's generic organization with support of other partner organizations, the Center of Global Communications at the University of Japan, Google, we have multistakeholders that thought it was an important issue to talk about.
The question of closed generic top‑level domains is controversial in the ICANN world. In the recent meeting in South Africa in July I organized a session on the same topic leading to robust debate among a number of different ICANN insiders. I thought it would also be useful to have a discussion that reaches out to a broader range of people who do not necessarily go to the ICANN meetings but have heard of this issue.
Some people I have talked to, and they have said to me, why bother organizing a workshop on the topic that's not resolved yet or that the board of directors is considering what to do which is an ICANN way of thinking about it? I tried to explain that even irrespective of what ultimately is decided in terms of ICANN policy that this is an issue that really speaks to some of the larger questions about the relationship between ICANN and the work it does and the larger Global Internet Governance Ecosystem. You have a situation where you have the community of people that work in ICANN designing a policy framework for the establishment of new generic top level domains and we know that beginning next year hundreds of new extensions will be added to the name space. In which context, the question of 'closed' generics names are available cam up, we figured it should go forward.
It began to get press in the general mass media around the world and people were going, wait, what's going on? What are these people doing? What are they talking about? Is this a good idea? It was controversial.
A number of actors within ICANN began to challenge this on various grounds. Wait a minute. We shouldn't have top level domains at all. It turned politicalized not only within ICANN and the internal processes, but in the larger global public sphere.
It seems to me it captures then the misjunction between what we do sometimes in ICANN and how people outside of the ICANN world see it. I think it is a perfect issue as sort of a leverage point for addressing the questions of what is the global public interest around the management of the name space, what basic should decisions be made? What types of models should be followed, so on.
Briefly for people that may not be completely versed in this, when we talk about a 'closed' generics top‑level domain we're talking about a top‑level domain for word which the applicant does not have a trademark but nevertheless would be exclusive registrants, only to say they could have the names that are under this top‑level domain or left of the dot. It could be baby, beauty, blog, book, cars, et cetera, et cetera, et cetera. Generic terms that particular companies said they want to run a registry for this, and I would like to be the only entity that manages who gets the domains and how they're used, et cetera, rather than having them be resold by a variety of registers around the world.
Many of the applications are for particularly choice character streams and the applicants are major corporations that have not been significantly involved in the domain name industry before in many cases.
It is interesting. There is a big debate then as I say within ICANN and it is dividing the ICANN community. A lot of interesting ways. The business community has been totally divided, society, internally divided. Nobody seems to be completely on the same page as to how this issue should be managed. The current status of it is that at the ICANN's April, 2013 meeting in Beijing the Advisory Committee of ICANN advised the board that exclusive registry access should serve a public interest goal and it had to be assessed in late June the Board's new GTL Program Committee decided to prevent the applications, prevent applicants for 'closed' generics signing registry contracts pending more talks with the registry applicants, they have to agree to a set of public interest commitments which include obligations to operate in a transparent, none discriminatory manner and not impose eligibility requirements limiting registrations to just a single person or entities.
Also, more recently, with the United States government remaining neutral the government advisory decided to file formal opposition to Amazon which could lead to legal action.
Hundreds of applications for these kinds of 'closed' generics top level domains are now on hold although some applicants have signaled desires to go ahead and sign registry agreements even if they prohibit their use as a 'closed' generics. That's where things are.
As I say, it is a very divisive issue and we have a good panel of people that are all over the map on this issue. Let me just introduce moving from my right to the end.
Right here, we have Olga Cavalli, a representative of the Government of Argentina. She's the former vice chair of the GNSO Council.
We have over there, we have sitting in the front row Rafik Dammak. Rafik Dammak is a member of the non‑commercial stakeholder group from Tunisia taking questions and facilitating the remote participation of a speaker.
Next, over here, we have Stephane Van Gelder. Stephane Van Gelder was a former chair of the GNSO Council that adopted the policies around the 'closed' generics top level domains and consultant from France.
We have here Thomas Schneider, deputy head of International Relations and International Information Society for the Federal Office of Communication in the Government of Switzerland and also an active member of the Government Advisory Committee.
Next to him, we have Joy Liddicoat. Joy Liddicoat is the director of Global Internet and Human Rights in the Association of Progressive Communications, a major Global NGO and member of UNUC and from New Zealand.
To her right, we have Avri Doria, an independent consultant and another former chair of the GNSO Council that was closely involved in the adoption of the policies and a member.
From the United States and online we have calling in remote from Washington D.C. Kathy Kleinman. She's also a member from the United States.
We have a number of people on the panel, they have quite different views on the subject of 'closed' generics.
I thought maybe people could make a 4‑minute opening statement of their basic baseline view. Then I'll pose some questions to the group to try to get interactive discussion. These questions are listed by the way on the background paper for this session, which is on the Website. If you go to the IGF Website it lists all of the questions that I was hoping that we would get through, we'll see how that goes.
Let's start moving from the other end: Avri Doria, you were very involved in the development and policy around this, perhaps you can start by giving your view in 4, 5 minutes, the overview of your sense of this process. I apparently have to hand the talking stick down to you.
>> AVRI DORIA: Thank you.
As Bill said, I have been involved in the process of creating this round of new gTLDs since we began to talk about it at the end of the last round of the new gTLDs.
When it comes to this topic, I actually have a real problem. I don't really understand what a 'closed' generics, what it is. I don't really understand how we define a generic word even. For example, are we talking about any word in any dictionary anywhere? In any language? Are we talking about a word with only one meaning, never used in any other context? Are we talking about words that have no synonyms and therefore are we talking words that are somehow sacred?
For example, when this comes up, the word and example most often used is "book". Somehow that's a sacred word to people. A book that evokes, you know, emotion and such. You know, it takes us back to the beginning of the printed word and Bibles and "book" it is so important to us that we therefore consecrate it, we treat it as special.
The process of doing the new top level domains, we had always assumed that there would be TLDs with restriction on them. We were following up a level of supported top level domains where every term that was used including a term like museum, a word that I would hold dear to my heart. Thinking anyone with a private bug museum in their house could get a museum, no, they had to be museums that belonged to an association. The notion that we would limit terms to some sort of entity, that there is a limitation on terms was always with us. It was a presumption of this.
We had the notion of community top level domains where a certain select community would have access to a term and it would be barred from use by others. That was accepted.
In the discussions, we even used to talk about things like boutique TLDs, that term didn't go but we had a notion of a family. If you go back through the talk during the top‑level domain names, you will see discussions of my last name, Doria ‑‑ I didn't know it would cost more than I could afford, we had a notion that a family getting itself a name for restricted use of the family ‑‑ policies that came out never barred anything like that.
There was always a presumption that if something wasn't barred by the policy recommendation perhaps it was doable, there was precedent on it.
People talk about, can you own a name? The whole notion of ownership of a top‑level domain is sort of a red herring, no one owns a top‑level domain. You have licensed use of it, if somehow you abuse it, abuse the terms by which you agreed to it, you can actually lose it. I don't think there is many cases of that yet.
Again, there's not an ownership of a word. It is the use of a space in the Internet of a term for a specific purpose, for a specific point in time. So, when I look at all of this, and I look at this ‑‑ I get back to my point of the closed generics, we're talking about one word in one language being used for a specific purpose at a time. I have gotten to the point where I really do not understand the issue. Do not understand why anyone would expect there to be a limitation on a company using a word or a community using a word or a club using a word or a family using a word. The family would have to be incorporated to apply for it, other than that why couldn't I have incorporated my family and applied for that? No, it is only members of the Doria family. You know, is that a generic word? I don't know. It is a name you can find in dictionaries and biographical dictionaries and other places, if my name was Smith, we said that all of the blacksmiths wanted to use that, would that be a generic term that needed to be ‑‑ you know, to me, the actual issue was mind boggling when it came up.
I have since learned about it. I have heard other opinions. Still, I have never heard anything that really convinced me why we would need to limit use of a name whether it was to a single group for a single purpose, to a community for a multiple purpose or something else. I guess that my point, I don't get the topic.
>> STEPHANE VAN GELDER: Hello. I'm Stephane Van Gelder.
I also have trouble with this issue. I'll take it from a slightly different stance, that's purely a business stance rather than a GNSO chair stance.
Coming in to the process slightly later than Avri, I came in at a time when the GNSO had mostly perfected its recommendations for the new gTLD program. Nowhere in the recommendations was it explicitly stated that people were disallowed certain generic terms for their specific uses. Those recommendations came out, the board, the ICANN board voted to approve and then ICANN staff moved to implement. All through that process potential applicants, those business people or private initiatives or whoever they were, people that were about to stump up a fair sum of money to go through this process, none of them were ever told the term 'closed' generics was something that they should not be looking at.
In fact, 'closed' generics is actually quite a recent term in the new GTLD process, coined recently and a lot later than the actual rules were finalized in the applicant guide book which is for those people that aren't familiar with it basically the rulebook applicants have to follow to submit an application for a new gTLD.
The situation from the business standpoint or ‑‑ let's use another word so that we don't get into the whole debate about business versus public interest ‑‑ if you take it from a project management standpoint, you're entering a project and you're given a set of guidelines or rules to work with the project and those guidelines state a certain number of things. You work along those rules. Suddenly, out of the blue, someone comes up, sorry, that, you shouldn't be able to do. That's my issue with the 'closed' generics. I'm trying to purposefully stay away from the debate of whether a certain company should be able to own a generic term. That debate will no doubt be covered by some of my fellow panelists and it is a debate with many issues, some companies have generic words as their trade names. Some companies want a word to run generic word services and are not allowed to in the trademark world, some mentioned CCTLDS, they have their own rules, was it Bill? Not many people can object to those.
So, getting in that rules debate is a crux of the panel today. I want to start on the project management side of things. Reminding people that applicants paid $185,000 to apply and a lot more money to prepare this application that they submitted to ICANN. These applicants were working through a set of rules that changed along the way. I think that in any other space that would lead to possible litigation or worse.
Thank you.
>> WILLIAM DRAKE: I'm sorry. It didn't occur to me that we have also in the room the president of ICANN's Generic Domain Division and actually also we have Peter, the former head of the Board of Directors of ICANN and was involved in these things too. We have a lot of people that we can draw into the conversation as we go. We'll look to you gentlemen later for your views as well.
Thomas, please.
>> THOMAS SCHNEIDER: Thank you. I'm Thomas Schneider. I work for the Swiss government.
I think Stephane made a valid point. I'm trying to make at least in our view a very valid point which is countering some of the ‑‑ some of what's been said by Stephane.
In my country, a small country in the middle of Europe, language, it is generally considered as a common good, a public good, you cannot own or buy a trademark language as this is a basic assumption, especially when it comes to generic terms. The question is what is the end of the definition of what is generic or not? This relativizes the whole discussion that we have at least to my knowledge there is no definition, there is no borderline between what is generic or what is not. There are some terms that I ‑‑ in a society, I understand that is generic for them.
There are cultural and political expectations on how generic terms, are they clearly identified generic terms are dealt with, at least in my country.
The economic market rules, the market regulation, whether exclusive use, the closed use of a generic term may create market advantages. This is another aspect of the discussion which we have to take into account.
To try to give you a concrete example on how in my country the discussion was held on the word "Swiss." "Swiss" it is important for people in Switzerland, the objective of their community, but also because it is not a brand, you cannot trademark the word "Swiss." You can have trademarks in different sectors of the industry that include the word "Swiss" in a logo or "Swiss‑made" on watches, you know this. No single company can own ‑‑ nobody can own the word "Swiss."
We have the case that the Swiss International Airlines, that's the full name of the company, but the logo, it is across, the word "Swiss," they applied for a gTLD Swiss for exclusive use which the government understand this is a nice marketing advantage knowing that "Swiss," not a brand but a label with a value A high value, there is a lot of fake Swiss products around the world, you know some people have interest in profiting from that value.
They applied for it. They didn't tell us. They didn't ask us. We found out. We had a discussion with them, quickly we made a consultation among the government but also with the industry, with the Civil Society and came back clearly to 100%, nobody should have the exclusive right to use the word "Swiss" as a TLD because it is not just a sector, it is for the whole virtual world in the future. There was a clear mandate given to the government and given to us, we have to prevent any single company from exclusively using "Swiss."
We filed an application of our own. We did it in three weeks, which was a challenge, and we filed it as a community TLD to be able to clearly state this is not a government owned thing, we don't own the word "Swiss" either. We want it to be at the disposal of the community. This is how we dealt with the word "Swiss" on the top‑level domain.
An example of dealing with generic terms under the community, we asked what, do with duo with apple, mountain, geographical names, so on, so forth. We thought we have the chance to try and see whether there are innovative ideas out there, what can be done with generics, not just giving it on an auction basis, first come, first serve.
We'll make ‑‑ we will make ‑‑ set up more or less a list of what we get as most important generic terms, and we'll make a call for proposals. For proposals to use the generic terms as a name space. That means if somebody has an idea, what to do with hotel Swiss. How to put it at the disposal of the hotel industry, the tourists, consumers, you can make proposals, taxi, restaurant, a name of a lake, a cultural name, mountain. We'll give a certain time where we will reserve the names and see whether their innovative ideas are out there that come up. If they don't, we may give them away like normal names.
This is an attempt, we don't know what will ‑‑ whether something will work or not. This is an attempt to somehow pay tribute to the fact that the generic terms are special, and we hope that something interesting may come up.
Thank you.
>> WILLIAM DRAKE: The notion of culture as a consideration that would be connected to the ICANN process is interesting. Let's go to another governmental aspect.
>> OLGA CAVALLI: I think ‑‑ am I allowed to ‑‑ would I be able to register Cavalli? Maybe not, it just came to mind. The problem with generics, they're closed. If they were open, maybe the discussion would be different. There could be a development of a registration policy that could be more inclusive perhaps to communities. If they're closed I think that is the ‑‑ the specific problem about the rules that Stephane courteously stated, I fully understand that.
At the same time, we all understand that rules can be revised and reviewed. If things don't work, maybe they could be enhanced.
What I would like to say is that the issue with geographic names is not new. It is already established many years ago by the GAC.
In the GAC principles in 2007 in the meeting we held in Lisbon. Everything, there is a reason there. There is ‑‑ there is a specific concern about geographic names. There is a definition of geographic names, I won't go into the details of the document. Also, if there are doubts, the applicant guidebook establishes that. It is in the applicant's interest to consult with governments and public authorities unless there is no issues prior to the registration submission application. In some terms mentioned by Bill, you know, with Argentina, Chili, we thought with the governments, that the rules were clear. That those names that are specifically related with very big regions of our South American subcontinent, clearly stated that this applicant should have been a word they had to consult with the governments and they didn't.
This is not new, the rules. The rules were already including this awareness about using this. I like what Thomas explained. I think that's innovative, a good way of using a word that you consider that is a part of public interest. That would be a way to ‑‑ we should find ways to make not so close with some terms that perhaps are relevant to communities and to some countries. I wanted to say something else but later.
Thank you.
>> WILLIAM DRAKE: To be clear, your concern is with names generally or names that are closed?
>> OLGA CAVALLI: I think, this is an assumption, if the application for the names, the geo names would be open, perhaps it would be different but they were closed.
A company cannot have a name of a land that is 4% of the whole world land and where millions of people live there and it is clearly taken from there. It is nonsense. It is clearly stated in the rules that they should have consulted governments and they didn't.
The same happens with Amazon. It is a large land, river, nobody can deny that. No consultations previously were made.
If they were open, maybe this could be different. If they're closed, it is clearly the word that belongs to the company that applied for the TLD making things more complicated.
>> WILLIAM DRAKE: Thank you.
Joy, can I hand that talking stick down to you?
>> JOY LIDDICOAT: Thanks. Joy Liddicoat for the record.
A different perspective again: As a Human Rights advocate and Human Rights defender I'm not at all surprised and delighted that there are conflicting views and intense debate because I think what we have is the articulation of a whole range of rights that are competing with each other and in conflict with each other.
The question is not which right is the most important or which right came first, which process evolved to prioritize one right over another, but rather how do we balance the rights in ways that are feared to all stakeholders that are involved. Including those that are involved in Internet policy and Internet Governance issues outside of ICANN and are effected by the decisions that take place at ICANN from which they are entirely removed. That's why it is good, it is very good to have this debate and this discussion here at the IGF.
For example, Stephane is correct to say that as a measure of the rule of law, of course, there are rights to certainty, to know the rules and procedures under which he and other parties are entitled to apply for generic names or detailed deeds I should say.
Same time, it is entirely incorrect to say that somehow the rights stop just because they're not clearly articulated as being forbidden. Obviously some of these rides issues don't arise until it is clear what words are being applied for. So, we can't say that Human Rights are sort of frozen in time, that these cases can no longer be raised simply because no one thought of it, we're partway through the business processes.
At the same time, there are, of course, spaces around cultural rights as Olga referred to, there are many in developing countries that are relying on the governments to put forth their cultural rights and assert the rights which are not able to be taken into account in either the application process by others. In the absence of that, I think it would be high levels of concern as to how to protect and promote the cultural rights not just in the Amazon, Patagonia, many places.
I think in the "gay" there is rights related issues related to that word that we would want to ensure are secured by ‑‑ I as a Human Right defender, I would want to resist government approaches to prohibiting that or limiting that in anyway, in same time, empower, the community seeking to support the developments under the "gay" TLD to do so safely, securely.
We have the competing, conflicting rights. I think ICANN is a private corporation, but undertaking public policy in relation to what is a public comment. You don't own a domain name under RFC91, you have stewardship over it, there are roles and responsibilities to the Internet community and I do think that there is perhaps a lack of innovative thinking particularly around the 'closed' generics and Olga, Thomas mentioned this, perhaps the word ‑‑ the issue is not so much that certain words are captured but rather the way in which access to the words will be mediated or could be restricted.
So for example, the business models which would mediate who could operate the certain words, it raises Human Rights concerns, particularly for those in developing countries.
I think we should welcome and embrace these conflicting rights and not be perturbed seeing how they compete but asking us the question, what is in the best interest of the Global Internet Policy in relation to the conflicting words and how do we improve the outcomes of these in ways in which enable more users and right holders?
Thanks.
>> WILLIAM DRAKE: We have Kathy Kleinman in Washington D.C. Is she able to communicate with us? She was to give a remote presentation? Is that set up now? While we wait, is it a minute or two? While we wait ‑‑ you have a view you want to toss on the table? I'll hand you this.
>> Thank you, Bill.
So I will actually try to provide a quick update on where we are with these applications. As advised on category 2, you know, that they would prefer basically to see everything being open and if it is not open basically they want to see there is some public interest value in being closed.
So far what we've done, we have asked all of the applicants mentioned in the GAC's advice, whether ‑‑ it provided the string but not the applicant. So, therefore there are multiple applicant for every string, we wanted to identify the applicants that wanted to be closed versus those that wanted to be open.
There were about 186 applications effected by the category 2 advice. We have sent them a questionnaire on whether they intend to operate the TLD in a closed way. We have received answers from 174 of the 186 that they don't intend to operate the TLD in a closed fashion and therefore are willing to sign the contract as it is leaving ten applicants that want to operate the TLD in exclusive manner and two that we're still following up on, we haven't gotten full responses from them. That's where we are today.
From our perspective, our concern, it is mostly the implementation of policy and as we mentioned, as Stephane mentioned earlier, it is important for us to stick to the rules that the applicants applied under and not to change rules as they're going through the application. We tried to stick toes that as much as we can. Changing rules for us is a big danger sign and we try to avoid that as much as possible. There is merit for every argument. I don't think that if it was a clear‑cut issue we would be debating it here.
That's my opinion on that. I appreciate everybody's opinion, and hopefully we can resolve this in a way that is rewarding for everybody involved.
Thank you.
>> WILLIAM DRAKE: Fantastic. Thank you very much.
Is Kathy ready now? Good. Let's hear from Kathy Kleinman in Washington.
Kathy?
>> KATHY KLEINMAN: Bill, can you hear me?
>> WILLIAM DRAKE: Yes, but you could be louder.
>> KATHY KLEINMAN: Excellent.
>> WILLIAM DRAKE: Nasty interference.
>> KATHY KLEINMAN: How is that, Bill? Hello?
>> WILLIAM DRAKE: We can hear you.
>> KATHY KLEINMAN: Wonderful.
Hello from Washington D.C. I'm Kathy Kleinman and I have been a part of ICANN now for many years and it is a pleasure to hear so many people I know speaking and involved as well.
I was a part of a number of groups that were rules for new domains as were many people on this panel. I read the rules very, very carefully as part of different committees, including the registry committee looking at the rules for the new registry.
I have to tell you all, share with you all, the day that the applications came out, the day we could read the applications, I was shocked, shocked to see so many 'closed' generics.
Generic, it is a legal term. Generic term, it is the common term for a business or industry and you're never allowed to trademark a generic term in a generic way because it would remove that term from use from others in the industry.
If you're a milk producer you can't trademark milk because that's what the competitors are using as well, the generic term, a basic term of what you're providing, the product you're providing.
I'm going down the list, I got the same type of list that Bill did, I was shocked of so many after another of the 'closed' generics, baby, beauty, book, cloud, mobile, phone, search, video, watches. You know, basic words and yet the registries or proposed registry, the applicant registries didn't want to register domain names, they wanted to keep all domain names. These are big companies for the most part, almost all U.S. or European.
This was a shock to me. It was a shock to me because I thought the rules were very clear in terms of the registry agreement, what it said, under section 2.9, it absolutely says that the registry operator may establish non‑discriminatory criteria in the TLD's that are reasonable in the functioning of the TLD. So, that criteria, when we discuss that had in the committee, it meant that if you close that off, lawyers could do it, not just the lawyers in the U.S. but in a law firm, and that criteria, it was almost like global, non‑discriminatory, and in addition, a code of conduct adhered, the code of conduct within the rules that barred registries from registering domain names in their own rights.
It is on page 9. The rules are there. Unless they're registering domain names for management and operations and the purpose of the TLD, which is technical, operational. Many of us were very surprised when we saw so many 'closed' generics, we wrote to ICANN and we appealed to the community. I used to be director of operations ‑‑ policy, I'm sorry, for .org. We believed in equal access, urban access and we think that with ICANN, we were using our heads if we were doing anything else.
I was really pleased to see the community respond, the government advisory committee take a leadership role in this area and ICANN trying to clarify what the rules are to clarify what the requirements are of the registry and to ask applicants if they want acceptance of the code of conduct, to ask for it. What we're seeing now is 'closed' generics opening up, that's the right way to go.
For the Internet community, all future registrants coming in, that have a place in the generic terms, based on that.
Thank you.
>> WILLIAM DRAKE: Thank you. I hope that was not too complex technically for you.
There is a number of interesting questions I would like to put on the table. I see all kinds of people waving hands already. Same thing that happened when we have had this conversation in Durban. It is a topic many want to get in on. That's fine.
We have another 40 minutes to do it.
Let's start perhaps with Peter. Peter was chairman of the board at the time of all of this going on. He may have a distinctive ‑‑ is there another talking stick by the way? Only one microphone?
I'll come, take it back from you after 20 minutes or so.
Peter.
>> Thank you.
Can I start by explaining I'm an IP trial lawyer. People see me as an ICANN person, my provisional expertise is intellectual property law. My last case, before the New Zealand Court of Appeal involved the use of generics. I do know a bit about this.
I'll start by explaining why Kathy's use of trademark registration rules here is just wrong.
The idea about registering a trademark is that it takes a word out of common use. You cannot use ‑‑ when someone does that, you cannot use that word in a number of ways. A registration of a trademark in English takes the word and certain circumstances out of use.
That was not the case here. Registering a new gTLD takes nothing away, we're creating a whole new thing. So, people that are doing ‑‑ people that are able to carry on doing exactly what they have always done, registration does not restrict anything.
What the complaint is, is that in this new expansion not everybody is allowed to expand. That's a very different point in something that's taken away.
Let's be clear, the trademark rules which take things away, take them out of the English language, a defense that many of us are sensitive to, me included, does not apply. We're talking about who is going to get access to something new.
That's the first one.
I wonder if I can then put the ICANN hat back on, come back.
It is helpful to have you set out four reasons that you did, Olga. You're operating off of the wrong rules.
The fist point, it was referenced to in the 2007 GAC principles, not the operating principles at the moment for geographic names.
If you remember, the GAC was rejected, when the board does not accept that advice we start a process for reconciling that two. That process was to be started, and there was an original exchange of letters before the GAC changed their mind and withdrew from the principle. It is not appropriate now to go back to the 2007 principles.
I recall this particularly because I kept the board up to about 3:00 in the morning in Mexico. This was the issue, the geographic names.
The next point ‑‑ not talking about the 2007 principles. The GAC abandoned those and moved to a different negotiated position which was again different from what you see it.
The definition of geographic names that was used does not include those regions. The principle on which the bargain was struck was there would be a clear set of rules, a clear set of lists that people, applicants could work to, and the argument became what should the lists be so that applicant would know in advance what was in and what was out.
So, the suggestion that people should go and consult with the governments about their regions, that again doesn't apply. Those regions are not on any list and don't require government consultation.
Each of those things is actually incorrect in terms of a basis for this, they're not the rules, not on the lists, not the regions ‑‑ the only countries and other continental regions were put on the lists, geographic regions like Patagonia, et cetera, they're not on the list, do not require consultation.
So, you know, I think you're arguing from a point that was negotiated and changed and I think back to a pre‑negotiated version is ‑‑ makes it very difficult.
Can I come in to what Joy said? I think Joy got it right. I agree, the ‑‑ the position is, you know, a balancing of rights. I agree that it is not simply good enough to say that the applicants started this way.
The way I would put it, when you set up a position like that, as Stephane Van Gelder said, you have the rules, business certainty, people paying millions on reliance on the rules, the board has a responsibility to the public interest. If somebody comes forward showing something is dangerous, I think the board has to stop. The community has to stop and say, you know, what do we do about this?
This circumstances, this is not a new issue. I think that the onus is on the person that says stop, we need to change, they have to overcome the burden that all of that previous stuff creates. I have to show that it is a problem.
I don't see how we get there. I don't see how this problem meets the criteria, the high level you have to have, to stop a process.
What's not explained is what the actual harm is, and that the more that come to even a space, they're not currently there now, applicants create it for their purpose, design it for themselves not taking the name out of English, off the Internet, nobody is stopped from trading. You have to be clear on what the actual harm is to overcome.
I agree with you, Joy, a balancing exercise. A lot on the scale saying we focus out, we negotiated it, we got to a position, we published it, we have taken money, I agree that can be stopped if you show harm. I think the emphasis has to be show me the harm. The harm that justifies undoing all of this sort of work.
I'll be ‑‑ then I would be there too.
Thank you.
>> WILLIAM DRAKE: Thank you. Peter.
I know there is people in the audience that want to get in on this. I know there are people on the panel that want to respond as well.
I want to give the people that Peter just threw down the gauntlet directly a chance to respond first.
Kathy, are you still able to hear us? Would you like to respond to the point that there isn't something being taken out of circulation in the way of trademark? An expansion?
Is she there? Able to communicate?
Kathy, can you respond to Peter's point? Did ‑‑
>> KATHY KLEINMAN: Should I respond after Olga?
Bill, can you hear me? Can anyone hear me?
Bill, I would like to respond after Olga.
>> WILLIAM DRAKE: All right. That's fine. Now you can hear me!
Olga, how would you like to respond to the points that were made about ‑‑ particularly, it is true that the regions did not have the same status as countries in terms of geographic names? We shouldn't be all about geographic but interested in the closed dimension particularly. Let's go to that.
>> OLGA CAVALLI: I think Thomas wanted to respond.
I want to say, in the applicant guidebook, the document that was made through the process and all of that, there is the GAC advice and the warnings. So, for this particular cases, we have that process. I fully disagree when someone says that the governments have a veto power over the TLDs requested because the GAC has this process of advice. I will let Thomas comment.
>> THOMAS SCHNEIDER: Thank you.
I can disagree with some of what Peter had said. I have to agree with some of what he had said, but I agree with others.
First the GAC, it is not a yogurt gate. It stands until we stand it corrected. I don't know how many lists we created to refer to things we said before, particularly in the 2007 principles.
I think this is something that should be very clear. The fact that we accepted the applicant guidebook knowing that it is not perfect but knowing the negotiations ‑‑ we still had different ideas on that particular thing and other things with geographical names, no, we didn't get it. We were basically forced being an advisory body to accept that guidebook. That doesn't mean that we're happy to 100% with what's written in there. That's something to keep in mind.
I think the general problem of this, if you look at it from a political point of view, the fact that we're ‑‑ the governments didn't prevent or didn't see that ICANN is partly making to be provocative, doing the same, like the Europeans did when they were colonializing the rest of the world, the Americans from the east did when they were conquering the wild west, you're right, we're creating new territories. The first one who gets in, the one that pays the most is flagging. Who is on the moon has the flag in first.
You're right, you're not exclusive by giving a closed TLD to somebody, you're not excluding others from using the word but there is only one TLD .org, maybe there is book shop, bookstore, whether this is a problem or not, we don't know. It may be a problem for competition, it may be.
The problem is, we created a situation where some have far better access to possibly key resources for the next 100 years if the gTLD is irrelevant because you type in search engines that lost gTLD we lost millions of money around the world. If they become relevant some countries, companies have basically the most attractive, probably the most attractive parts of the new space in a very short time for much money, but maybe they'll make million times more money in the next 100 years and other stakeholders, other countries, mainly developing countries, they have had no chance, no resources to understand what's going on to be ready, to be prepared, to know California law as well as the Europeans and even the Americans. This is a political risk that ICANN is running and the governments are not strong enough, also because of time pressure, resource problems, to insist much more on some aspects of this.
I was one of those that said if the new program doesn't get 10% of applications from Africa, we have a problem. I don't know how many percent ‑‑ I think we have 5, 10 applicants among the 2,000.
(Audio disruption)
>> Yes. I disagree with what's been told by the gentleman on the panel about cooperation of trademark and top‑level domain. No clue at all.
In the trademark you can have ‑‑ you can apply for being a representative of one category, one group can represent the computer, electronic machines, while others can apply for fruits, vegetables, et cetera.
A top‑level domain, that's not possible. You can't compare the two things. You're giving an advantage to one.
In our case, BBC competes with transport bus, transportation company in the U.S., I think something like that, or not the case for this application.
This potential case, the BBC will get to the top‑level domain the bus company cannot use his own name. So this has to be excluded as ‑‑ in a sense as a ‑‑ as a significant element. I don't understand, by the way, I'm not ‑‑ neither a lawyer, neither an engineer ‑‑ why this is not possible to have coexistence of who top level domains. In the future I think that will be very easy through the artificial intelligence if you're looking for something concerning computer, you will not go to the fruits on you arrive to a page where you say do you mean apple fruit, Apple computer? That's another point.
The second point I want to say: This discussion, what was mentioned before, it strikes me once more, this contradiction of the GAC being only an advisor and this is a big contradiction that needs to be solved one way or the other. It doesn't make sense. Especially until when the culture of the public interest it is not deeply rooted into the behaviors.
This is a learning process that we're going all through, but this learning process is to lead to new ways to understand that there are interests in the Internet, that it cannot be governed in the same way as the world but on the other side, there needs to be an understanding of the public interest needs that cannot be ignored.
Thank you.
>> WILLIAM DRAKE: Thank you.
I have to say, I have some sympathy for the first point. If you Google UNUC, you get the North Carolina Utility Commission, that makes me very unhappy.
So, Stephane and then Avri, just pass that down the row. Okay.
>> STEPHANE VAN GELDER: Thank you very much. Thank you for giving me an opportunity to come back to the point I had earlier on. It is something along the lines that you said, Thomas, as well.
Just on the trademark issue, I don't want to get into trademark debate. Any trademark in the current domain space will give you an exclusive right to a name.
If I have Apple I don't have to explain what category that is, I still get the presumption right to apple.com, anything. I can go through a process and just be stronger than anyone that has a different trademark just by proving that.
I think it is a difficult question.
Others say, you know, there are categories inherent in the fact of the gTLD, if you can't get the apple.com, you can get others, et cetera. It is a complex issue. One that's probably best avoided here.
Just one word on the openness, the fairness. I heard that from you both. I actually ‑‑ I understand that you're trying to make the process fair for everybody and everybody to have equal access. You made the point, Thomas, of Africans maybe not having ‑‑ let's not stigmatize anyone. Some developing countries not having equal access. I will counter no one has equal access in the new gTLDs. Personally, I cannot even ask for a gTLD as an individual because the rules prevent me from doing so. I think it is a question of realism versus idealism in a sense.
You know, the ideal is for everyone to have access to the Internet name space. It is a beautiful idea. Once you get into the realism of it, you realize that if the program, for example, had been open to individuals, it would have been extremely difficult to vet all the applications and ‑‑ he looks tired right now, think what he would look like if that had been the case!
You know, you have to keep a degree of realism. Part of that realism, it is that the program simply isn't fair access to everyone. You know, as an individual I can't apply, I possibly, you know, some of the developing countries, were not able to apply as easily because of other issues that have nothing to do with the rule set.
Thank you.
>> AVRI DORIA: Thank you.
So, a couple of things that have been discussed that I ‑‑ we talked about trademarks. I want to bring it back again, domain names are not trademarks. They're not covered by the same rules.
Having a domain name does not give you a trademark. The discussion of trademark and trademark rules and sort of saying it is restricted because it may be restricted in a trademark discussion is sort of a ‑‑ a stray argument. I can't remember the expression I wanted to use. A read her ring.
In terms of conflicting of rights, I think that's ‑‑ oh. Thank you. Don't tempt me. Don't tempt me!
In terms of the conflicting of rights, I think that is actually very fertile. When I look at it, I see a conflict between Freedom of Expression, which has been brought up several times and freedom of association. When we're referring to the Freedom of Expression, there really is no restriction on anyone registering book, whatever, and 1,000 other TLDs. Not having a .com, again, go back to book.com, an example that was brought up by many frequently. Barnes & Noble having book.com never stopped amazon.com from selling books. The argument that somebody having "book" would prevent the market in books and allow them to monopolize the market in books again does not make sense to me.
Also, you go beyond that when you talk about Freedom of Expression, we have located that on words, but really what you're talking in Freedom of Expression is just as often the meanings and what you're expressing in meaning.
When you look at the notion of book, what it means to be a book, not only are there so many words for it in English, when we start to look at all of the other scripts, all of the other languages that one can cover in the domain system there's so many other ways to express the meaning "book" I don't see having book being ‑‑ whereas with Freedom of Expression, a group has a right to stand under a banner, if they want to stand under that banner and be associated, saying this is where we're standing, then it is something that is as much a right as anyone's to express meaning in any way they want.
I really do see that.
I liked the argument about the inventory of books and ‑‑ of TLDs and taking one out. I thought that was a really good argument. I went and did the math on 26 timed 59 and came up with a name that was 23 octillion. So, therefore, I said, yes, indeed you're right, it is a finite, not an infinite resource but a definitely large body. I don't see that necessarily as that.
Yeah, I think that was my last point on the inventory, it is indefinitely large. I'm not worried about one particular item being taken out of 23 octillion minus 1.
(No microphone being used).
>> JOY LIDDICOAT: I want to raise some point that haven't been raised already.
One, it is not only in relation to Human Rights that there are a range of rights holders, the different stakeholders had different obligations in relation to Human Rights and governments are one. Of course, under the international Human Rights regime they have duties, they have duties to protect and uphold the rights of the citizens individually and collectively that other stakeholders in relation to Internet public policy don't have.
It is right and proper, and the citizens should demand of them to raise the issue to uphold the rights. That's a factor in thinking about the harm that's done to Internet public policy and the name space that also needs to be effected and I wanted to come back to this point about ‑‑ we have the rules, we have to stick to the rules.
Any parent knows that if you aren't open to understanding a wider sense of justice, being willing to change your mind when rules are becoming problematic just for the sake of having them, that you're in trouble. I think while certainty in the rules and law is important, I think where, you know, business are used to rules changing all of the time. Parliaments pass new rules, courts make decisions which fundamentally change business models and trade commissions making decisions which fundamentally change competition rules which businesses have to operate. I don't think it is a real argument to say well, we have the rules, and they can't change.
I think the question is whether, you know, not changing the rules, sticking to fairly to the rules is a particular power grouping and then it is from fear. That's effected and should be taken into account with the review of the new processes. I think that's critical actually.
I think one thing we may see in the future Rounds, should they happen, is some innovation around the rules and requirements to reflect the concerns that have happened in this and some of which may yet to be emergent. I think that would be very useful contribution.
I think also having the discussion in the IGF about these policies, it is also very useful.
>> Ten seconds on copyright: You can have 10 different companies with the same name branded, this is one addition to the discussion. Let's leave that.
Agree with what Joy has said. I think the question that we need to ask now, what are we doing now? We have this situation that we're in, it is in the perfect. No regulation is perfect especially on something that doesn't exist yet. We can't expect to get everything right. This is a trade that we have had as government, do we try to force them to wait until we get everything, most of what we want? Do we allow them to let go knowing there are means thing not done the way they want? We kind of took a compromise in this.
What do we do now? I think we should allow for both. We should allow for ‑‑ GAC said you should not allow it, allow it, there should be a reason for it though. With all this, what we're doing, because this territories yet, they don't exist, many of the business models is based on assumptions. Also whether generic term, if it is close, it is a problem or not, it is an assumption, a hope, a fear for some, for others, so we have to try it out. Then, this is what Joy said, in case things go wrong, we have to face the consequences and change the rules. This is something that should have been maybe more clearly communicated to the applicants that this is the best that we got but beware that this is not the end of the story. No matter how much money you invest in something, rules may be changed in case you are not aware of n maybe this is something that should have been better communicated. Rules will be changed, the world is moving on.
A final word: I take your remark about ‑‑ well, access, it is never equal, so you have to live with that as not a true meaning because otherwise if you say this in the U.N. or anywhere where you have not only countries but stakeholders, people who have better advantages or more advantages or easier access to some resources or to quality of life, whatever, and you tell them well, sorry, that's the way life is, I don't think that's the right answer to give. I definitely think that's not the answer that I can ‑‑ should give.
All those representing ICANN ‑‑ not only the GAC, but others ‑‑ they should say we try our best, help us get better, be critical. We need people that are critical if we're serious on trying our best.
I trust the team that they're trying to take the criticism serious than in previous histories of ICANN and we have a chance of getting something out of this. If we don't get this right those who are neglected in this model will look for another model. It is very clear. It is legitimate.
If we don't get this right, this model may cease to exist and it is the fault of those that didn't develop the model as they should have in the end.
>> OLGA CAVALLI: Thank you.
I fully agree with Thomas, with Joy. I think this ‑‑ I won't repeat what others have said. I also agree with Chuck.
I think this is part of the internationalization process. I heard the speech with the GAC, that was on Monday. The points were valid, they were relevant.
My opinion is that it was great that you have new offices in different places of the world, fantastic that you have an office which is very close to my home. I can go ‑‑ I can complain easily rather than going to California, which is nice as well. It is not only about ‑‑ it is not only about having offices in other parts.
It is about thinking about being really international. I fully understand the interest of corporations and businesses. I think it is their role to maximize their revenues and their role as business. At the same time, there are communities, government, other constituencies, that's the key role of ICANN in becoming really international and that's a real challenge that you have in front of you.
Thank you.
>> WILLIAM DRAKE: Rafik? No questions from the remote participants?
Quick points.
>> I want the last word ‑‑
>> Thank you, Bill.
I want to make sure it is clear: We don't change things and allow the applicants to sign the contract and then go on that way. We follow the process of making a change request. When that change request is implemented, it is posted for public comment and the application does not move until it finishes public comments.
It is not that we're allowing things to move willy‑nilly and sticking through the entire process.
I want to go back to the point of we don't want to change the rules.
I think it is important to have predictability when you're doing a process. The reason we don't want to change the rules is to ‑‑ we don't want to remove the predictability and it is also very important to ‑‑ for everybody to realize that this is ‑‑ the guidebook was realized through consensus policy from the stakeholders. That guidebook has not been changed because we don't know anything more today than we knew when we built the guidebook.
We haven't launched the TLD, we have not learned from the first round. It is important for us to think about that we'll learn more things when this first round goes out. We will be better from that.
Today we're rehashing all of the arguments we have argued about earlier. We want to come out with a different conclusion. I think we need to be careful about that. That's the gripe, it is not that we're in the able to change rules but we're making changes to the rules without justification, that is valid justifications.
That's all I will say. Thank you.
>> This is Peter again.
Just agree, we're absolutely ‑‑ with Joy, again, we're in the sticking with the rules for the rule's sake. You're absolutely right. It is a balancing, the whole exercise. This discussion has been helpful in sorting out what the rights are.
The board has to make a decision on that balance.
You're right, Thomas, the applicants were told that the rules could change but they're also guaranteed they would change with a due process followed only and to a lot of people, GAC advice coming in at the end outside of the consensus phrase does not meet that requirement.
As a personal plea: I work very hard over the years to try to strengthen the GAC in all sorts of ways including in the affirmation of the commitments, it is crucial for ICANN to have a strong, functioning GAC to get others to join, that's part of the comment on the role of the GAC.
A warning, if after going through a scorecard with 180 I think ‑‑ remind me ‑‑ 180 different individually negotiated points to get to a compromise on this, if the GAC thinks it can go back to a previous position because it said so, doesn't enter into the spirit of bargaining and keeping that bargain, that's a real problem for all of ICANN. I know that, you know, the 2007 principles are out there. When we get to a position, I think, you know, it is good for everybody to stick to it.
Thank you ‑‑ I think ‑‑ I asked what are the harm issues to put in the balancing exercise that Joy and others think we need to do. The fear of a new colonialism, that's a good one. That's a relevant harm that needs to be balanced.
The difficulty, it is sort of too late. It could have been raised. It doesn't apply to all of the other 'closed' generics, really only a narrow one in terms to the geographics, not applying to the others. In my view, it doesn't outweigh the predictability problem for ICANN.
If you change the rules, you have to allow the applicants to change applications causing consequential unfairness down the line that prejudices competitors if you took a different approach.
You get a ripple when you change your mind, that's the consequence of rule changes. Joy does a lot of the consequences, you have to think all the way through that.
The final point about the harm: It is only in English. I know that's a dominant language, that's not trivial. There are dozens of other languages and also dozens of other scripts.
>> WILLIAM DRAKE: Did you hear the comment that was just made, Peter?
>> I'm waiting for him to finish. I want to finish on that.
Olga, it is great to have ICANN close to complain but also to go up when they're doing it right. We should not let this pass, we have to thank ICANN and the whole community to get us to this point.
>> WILLIAM DRAKE: To close, a one‑word answer from everybody.
We have a story, where the community‑based group, it went off, designed a process, then we start to have the applications, you start to get the press responses, you start to get the public comment responses, negative views came in. The GAC comes in, weighs in with its view. Now we end up in a situation where 186 applications of 186 applications, only ten are now saying they want to operate closed TLDs.
Is this a happy outcome? Did the system work? Is this a bad outcome and the system did not work? What are your ‑‑ let's hear the assessments.
You don't want to ‑‑
>> In that case, I won't answer Bill's questions. I will make two points.
The first, I think it is important just to be precise on what I said. I talked about realism, no way did I say equal access was a bad thing.
You should definitely strive for equal access. In a realistic manner. I think that loops around to a lot of what's been said. There is realism and, you know, once again, I didn't say the rules should be closed. I said there should be predictability. I think that loops around to what's been said.
So in short, we'll try to answer Bill's question. Is that it is down to 10, is that a good outcome or not, I think I'll take a page out of the book saying we'll see when this round has been launched. People actually start using these things both users and the registries. We shall see what comes out. I honestly don't know if that's a good outcome or not.
I think it is a good outcome for some companies that were competing with 'closed' generics and a bad outcome for some companies that had business models that may have been a novelty on 'closed' generics. We'll just never know.
At least there will be ten of them that we can throw eggs at or congratulate.
>> I will refer to the ladies first.
>> JOY LIDDICOAT: It is a very good question. It puts a lot to the idea that it somehow is impossible to change the rules once the process is there. The applicants themselves decided to change in response to the context in which the applications have been received.
I think it tells us that there is more agility, more creativity and more flexibility even within the existing rules. I think in relation to ‑‑ I haven't done an analysis of those applications which have narrowed but I think it is interesting to look at the range of outcomes from that. Yeah, that would be my comment.
>> A very quick response.
You cannot expect the bargaining is fair between two bodies on unequal level, an advisory level cannot negotiate on an equal level with the decision making body that's over it. That doesn't make sense. That means basically you have to eat what you get as the advisory body that. Doesn’t mean that you have to give up your ideas, visions, goals while eating what you get. I don't think this comparison is the right one.
We signed up to the model, that's the reality. That doesn't mean that there can be some fine tuning in the future on the model that we signed up to the model. We still do.
Let's not get this wrong.
Again, to the question of ‑‑ I think we should really give it a try, see what happens. Be ready ‑‑ you need stability of rules, but if the rules are not 100% perfect but in some ways far less than 100% ‑‑ and I insist in the fact that it is a failure, you did many things right, in terms of developing issues, the ICANN gTLD is a failure so far, it even enhances the imbalance. Look at the applicants, it is American, U.S. companies that try to take words in Chinese and others, it is not Chinese companies. If you look at whose applied, where the applicants come from, the domain names, draw the world map, it is worse than the access to the Internet word maps we saw ten years ago. This is not a success. It is not too late, we can correct it in the future. We have to correct it.
That's at least my hope.
Thank you.
>> OLGA CAVALLI: I would like to also say that inside the GAC we also have very ‑‑ a very difficult work to do. We ‑‑ when people talk about the GAC as oh, we're happy, yeah, agree on everything. That's not the case.
The differences of how many applications are from Africa, Latin America, it also shows in our discussions inside. So, it is a tough work inside. Not everything ‑‑ I meant ‑‑ not everything that ‑‑ I complain, like many things that ICANN has done in all of the six, seven years I have participated in the process.
I agree, this process has some imbalanced bias to some regions but that can be fixed.
Thank you very much for inviting me.
>> I want to thank Thomas for leaving us on that happy, up lifting note. Very positive.
Thank you for participating in the discussion. I think it is interesting and great to be able to have this kind of conversation not only inside ICANN but in a broader community as well and looking forward to seeing you again.
We have another workshop tomorrow if you're interested, 11:00, on the convergence of telecommunications and the Internet and the implications for global governance and we hope to see you around.
Thank you.
[Applause]
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