Institute for Internet Policy & Law @ Beijing Normal University

Mid-June was a busy time. 2 Internet events was held in Singapore consecutively. The 2nd Asia Pacific Regional IGF was on June 15-16, 2011 in Singapore Suntec Center and ICANN meeting was on June 19-24, 2011 in Raffles Place.

Regional IGF was a policy discussion form involving a couple of stakeholder groups. Although few local participants joined the event, the Regional IGF attracted many overseas visitors. Prof. Xue chaired the plenary session “Anti-Counterfeit and Other Controversies” and managed to organize interesting presentations and discussions.

Introduction

The Anti-Counterfeit Trade Agreement would be a treaty to put in place new and higher international standards on intellectual property enforcement. Apart from its obvious TRIPS-Plus nature and forceful use of ISPs as private police, ACTA reveals a couple of critically important aspects that deserve careful scrutiny from the perspective of Internet Governance. ACTA’s plurilateral and closed negotiation process directly goes against the multi-stakeholder and open and transparent participation principles developed for Internet Governance. ACTA’s narrow focus on intellectual property rights ignores human rights concerns, especially free speech and access to the Internet, that are essential in the information society. ACTA demonstrate the temptation to shift from the existing multilateral WIPO-WTO regime to a more restricted and opaque system to enforce the private exclusive rights on the global information network. In addition, other domestic (such as US Bill “Combating Online Infringement and Counterfeits Act (COICA)”) or private (such as ICANN’s trademark measures in new gTLD process) enforcement measures for intellectual property will exert significant global impact. The session intends to have a vivid discussion on all these interesting issues in the most populous and economic-booming region of the world.

Chair: Hong Xue (Beijing Normal University)

Speakers included academics, businesses and technical community from US, Switzerland, Hong Kong SAR, New Zealand and Malaysia.

Summary

This session talked about the following issues:

a)      Specific legal initiative, such as US new legislative initiative, especially protecting IP to use domain name system to enforce intellectual property rights. Intermediary liability has always been a big issue for the development of internet, cloud computing and its impact on intellectual property.

b)      Obviously, our focus of discussion has been on anti-counterfeit trade agreement. The forum shifting from multilateral to plurlateral, and the local response to this ACTA negotiation process.

A couple of lessons learned from the discussions.

Lesson 1 is that most people agree on the process for making IP law or policy should be opened and transparent. The secrecy of ACTA negotiation is really the wrong way to presume the IP interest and will not balance the whole system.

Lesson 2 is that internet property should be updated and refreshed. Internet property was created after industrial revolution and international IP regime has been going on for more than 100 years. However, we are now facing the new business model, new media environment and especially the new way of life. In order to make intellectual property effective, internet, in our new social media environment, to make it relevant to our real life, and need to be remixed, and recreated. Intellectual property is supposed to protect creation and stimulate originality. It should be able to be creative by itself. It should not be stifled and refused to respond to new business and media environment.

Lesson 3 is that we believe intellectual property is only a link of the whole social life, so it should be accessed in a wider context and take into account the impact on consumer protection, on business competition and especially on human right protection, including but not limited to privacy and free speech.

Prof. Xue was also panelists of the other two parallel sessions, i.e. ICANN and New gTLD and International Law Enforcement. The conference materials are on the website.

ICANN meeting in Singapore immediately followed the regional IGF. After more than 10 years’ debates and 6 years’ policy making and despite pressure from GAC and USG, ICANN Board finally approved the new gTLD program around 12:00pm on June 20, 2011.  Few people applauded at the decision but many others were too tired and fed up by the long process to be excited.

Prof. Xue raised a visionary question at the Public Forum but was interrupted by the stepping down Chair of Board who seemed wanting to spend most of the time ceremonially, well for his friend. The question is about the implementation of the so-called trademark clearing house. Not only non-Latin trademarks could be excluded as “device marks” by a database operators who know nothing about the trademark scripts, but the trademark service providers without knowledge of Chinese language would deem the domain names in simplified characters not visually similar to the trademark in traditional characters, vice verse. It seems the very technical variants table would have to be referred by both the database operator and verification center to prevent “variant-squatting” in new gTLD process. Unfortunately ICANN Board did not have the chance to listen to such important view.

ICANN’s year-end annual meeting is happening at Cartagena de Indias, Colombia, December 5-10. This is one of 3 ICANN global meetings held yearly. Cartagena must be a nice city. I can see the Walled Old Town with Towers, Churches and cannons on the Wall, which is opposite to the Convention Center. But apart from enjoying the sunshine of Caribbean Sea at the breaks, I have been at the conferences or en route to the conference.

IDN fast track process review is one of the sessions. ICANN staff chaired the session. Senior Director on IDNs presented on the following aspects of fast track process:

– Transparency
– Community Support
– Meaningfulness
– Determination of the IDN ccTLD manager
– IDN Tables
– Disputes
– Confusingly similar string
– Objection/re-evaluation rights

Although there were less than 30 participants in the plenary room, the session brought up interesting information. At the end of the presentation, there were questions raised on the Internet referred to .бг (applied Bulgaria IDN ccTLD string) case. The staff restated that they were not supposed to comment on any specific case.

I then asked a procedural question. Although the String evaluation done by DNS stability panel (according to their guidelines) is a technical decision, it is a decision made on behalf of ICANN and has (significant) policy implication. If such technical determination is not subject to reconsideration or independent review, wouldn’t it be an accountability issue, as highlighted by ICANN at the opening ceremony?

To my *rough* memory, both replied that fast track process should be sufficiently simply, without objection or re-evaluation. And, surprisingly both ICANN staff replied that anyone would be available to reconsideration or review. I assume I heard their reply clearly. The audio record at the link is broken unfortunately.

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Interestingly, ICANN staff made a statement on December 4, 2010 on Internet Governance list: “The Fast Track Process is a limited process set up for the initial implementations of IDN ccTLDs. It was a factor in the community development of the process that there should be no reconsideration process included specific to the Fast Track process because it was a limited approach to only those requests where no dispute, questions, or otherwise concerns existed.” “Now, the process is a year old, and hence we are conducting a review of how well it functions and if any changes should be made. There is a public forum online and also a session scheduled in Cartagena. We will discuss all aspects of the process there.”

ICANN Senior Director on IDNs later responded in following two bulletin points:

• The fast track process was built limited in nature and for those applications where there is no concerns or no disputes of any kind. I also said I believe this is an appropriate approach for the initial IDN TLD delegations. It does however not mean that things should be more liberal in the future, but it is always easier to expand a program than to narrow it after the fact.
• Anyone at ICANN who are unhappy about a decision and not able to solve this with staff, can always go to the Ombudsman or seek reconsideration through the process for such. For details about these general processes, which are non-dependant on the fast track process, but part of ICANNs Accountability and Review Processes, please see the link.

The case reveals the ICANN’s matrix of Ombudsman, reconsideration, independent review or other “accountability mechanisms” (if any). There are built-in appeal systems for a specific program and there are others generally applied.

(Drafted for ALAC Statement on IDN Issues; Hong Xue, Chinese Domain Name Users Alliance

Posted at https://st.icann.org/idn-policy/index.cgi?alac_statement_idn_issues)

The Synchronized IDN ccTLDs is a proposal to resolve some critical problems of the fast-track IDN ccTLD implementation. Although the proposal facilitated the Board to make the resolution on completion of fast-track string evaluation of two Chinese-character IDN ccTLDs on April 22, which absolutely addresses the pressing need from the Chinese-language community and is warmly welcomed by At-large community, we have the reservation that the proposal should be generalized to cover the other language and culture. ICANN may wish to limit the solution to script or language group, which would truthfully reflect ICANN’s bottom-up, rather than one-set-fit-all, policy-making & implementing character.

Submitted to ICANN by Hong Xue, Chinese Domain Name Users Alliance

April 8, 2010

The Proposals seem a follow-up to the Fast Track IDN ccTLD Implementation Plan. Given that a request for a synchronized IDN ccTLD must have completed the String Evaluation in the Fast Track Process, the proposals, obviously, are patches to redress the insufficiency or unthoughtfulness of the original one. Although no one would really appreciates the patchwork, which would inevitably complicate the implementation, these remedial proposals do capture the most critical issues, particularly multiple corresponding strings deemed equivalent to one IDN ccTLDs. The issues are by no means new to the community or ICANN. During the policy develop process and implementation plan drafting process, the string equivalence or variants issues were repeatedly, consistently and vocally addressed by a few non-Latin script communities. For instance, both ALAC and APRALO made the submissions. After so many rounds of public consultations, it has been widely understood that solution to equivalent strings or variants is the center piece for implementation of IDN ccTLDs in the relevant IDN communities. No solution available, hardly IDN ccTLDs workable. This is why there were strong repercussions from the IDN communities after the Fast Track implementation took off. It is indeed positive that ICANN eventually moves to solve such “significant” problem for the communities. If the Fast Track was crafted to address the pressing need of non-Latin script users and non-solution to equivalent strings or variants would pose “significant problem for the community”, I cannot help but ask why such measures could not be incorporated into the implementation plan in the first place and have to be deferred to such a supplementary document.

(Hong Xue, Chinese Domain Name Users Alliance)

Unlike the Clearing House and URS that have been subject to hard-thought community review and improvement, the present PDDRP proposal is basically intact since the IRT report. With respect to this very complicated and special trademark protection mechanism that may be applicable to both top and second level, substantive works are still badly needed to be done. The present judgment criteria are highly subjective and in a large part subject to the discretion of the expert panel. Furthermore, application of the procedure at the second level imputes an indirect liability on Registry. This may have serious chilling effect to drive the registry to monitor and supervise not only the domain name strings but the content of the websites that the domain names are used to prove their innocence. As a result, this will impose new restriction on registrants.