Institute for Internet Policy & Law @ Beijing Normal University

IGF 2011 was completed in the last week of October in Nairobi.  Before the workshop on Government’s Responsibility on Day 4, I prepared a written statement and sent to the moderator and organizer well before.

I’m posting here the OBSERVATIONS ON INTERNATIONAL CODE OF CONDUCT FOR INFORMATION SECURITY (September 28, 2011) I made at a CoE workshop.

“I note a group of civil society organizations’ Open Letter to the President of the UN General Assembly on International Code of Conduct for Information Security. I deeply appreciate their timely contribution. I agree with some of the views they presented, but also believe we should be focusing on the most important issues.

I would like to share with you my observations. As a Chinese poem says, “you could not see the whole picture of a mountain when being in the ranges of the mountain.” Since I’m now almost 10,000 km away from Nairobi, hopefully my observation could be interesting to you.

I agree that the International Code of Conduct For Information Security (ICOC) proposed by the four countries does not have any direct “reference to the multistakeholder approach.” Although the document primarily defines the responsibilities of the States, it does not seem being the product of multi-stakeholder consultation and consensus.

On the other hand, ICOC, para. (h), does mention “all elements of society.” Given that language difference may result in variants of expressions, such as calling “civil society” as  “social groups” (see “MIIT of China response to the Further Notice of Inquiry on the IANA Functions”) , “all elements of society” could arguably imply multi-stakeholders. Truthfully,  the statement that “all elements of society” are under the leadership of the States does not imply the equal footing of all stakeholder groups. But is there any INTER-NATIONAL decision-making process really ensuring equal footing of all stakeholder groups? I’d be happy to learn more about how international law-making adapts to multi-stakeholder environment, as I had presented via unsuccessful remote participation system in Workshop 144 on September 27.

Making a simply comparison between ICOC and the two documents presented by Council of Europe (the “Declaration by the Committee of Ministers on Internet governance principles” and “Recommendation CM/Rec(2011)8 of the Committee of Ministers to member states on the protection and promotion of the universality, integrity and openness of the Internet”), I can see quite a lot of commonalities and interoperable elements. Both initiatives have the emphasis on “No harm”, which reflect the concern for world peace in the Internet age.

Since CoE’s document also mentions “Cultural and linguistic diversity”, I think it could be biased or mind-guessing to state that ICOC’s reference to “ ‘respect for the diversity of history, culture and social systems of all countries’ might be interpreted as diminishing the commitment of the UNGA to the universality of human rights.”

To my belief, the most important commonality is that both ICOC and CoE’s documents highlight the human rights and fundamental freedom. ICOC, the third sentence of para. (a), is a brilliant statement that is so dear to the people who are keen on access to knowledge. It may also explain why ICOC was not widely reported in the media in these four countries . So it would be good if ICOC, including the third sentence of para. (a), could be avail to the people of the four states, particularly when not all four states have ratified the International Covenant on Civil and Political Rights (ICCPR).

But the devil is in details. I fully agree that ICOC, para. (c) is the real concern and can be subject to different interpretations. Actually even the second sentence of para. (a), “respect for the sovereignty, territorial integrity and political independence of all States” could have alternative implication. I shall sincerely hope none of the interpretations would revoke the commitment to respect for human rights and fundamental freedoms, as stated in ICOC, para. (a) as well.”

The proposed International code of conduct for information security is contained in a Letter dated 12 September 2011 from the Permanent Representatives of China, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General is attached here for reference.

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Many people was not able to attend physically. But the so-called remote participation is most unreliable and ineffective way for anyone who genuinely intended to participate.

In the morning of Day One, I spent a long time to test and wait patiently for workshop “IG Principles” that I would present. Tragically, there was no signal on both the webcast and webex (participation platform) until the whole session started several minutes later. After I could finally log on webex, I posted messages to let the remote moderator know that there would be speakers remote and asked for testing. My testing requests were denied for unknown reason. Then I found that there was neither video nor sound on webex and told the RP moderator. The replies was always “fixing.” Frustrated by inaccessibility, I had to rely on the webcast to listen, which made me in an awkward situation of either listening without participation or particiaption without sounds. After one third of the workshop, I can finally hear some sounds from webex but the sounds were extremely weak, unclear and full of noises. I contacted the RP moderator but no fixation was offered.  As a result, I was not able to interact with the moderator and speakers of the workshop. Most unforgivably, my chance of presentation was unfairly deprived. I was merely given a few seconds to talk before the line was brutally cut by the RP moderator. I heard mildly that people on spot said that I should submit a written statement and RP was not reliable. Okay I then wrote a short note and posted on the webex. It was not read until almost the end of the workshop by the impatient and unqualified RP moderator.

After experiencing such unhappiness, I learned that RP was very unreliable.

My RP at another workshop on sort of OKE was equally unpleasant. There was no other RP participants at all. I sent in a comment but it was not read until the very end of the workshop. Sadly it was distorted and mutilated by the RP moderator. It was the insult to my sincere participation.

Washington Declaration on Intellectual Property and the Public Interest, now available for signature, http://infojustice.org/washington-declaration , was negotiated in late August by non-governmental groups, academics and others. It states, “[T]he last 25 years have seen an unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders.” However, “neither the substantial risks of intellectual property maximalism, nor the benefits of more open approaches, are adequately understood by most policymakers or citizens.” “This must change if the notion of a public interest distinct from the dominant private interests is to be maintained.”

The Declaration was drafted by some 180 experts from 85 countries at Global Congress on Intellectual Property and the Public Interest, held at the American University Washington College of Law in Washington, DC on August 25-27, 2011. As the only scholar from China, Prof. Xue attended the Congress and presented at several workshops. She particularly warned the danger of over-expansive of private ordering in IP enforcement.

The Declaration offers a range of recommended actions, aimed at issues such as limitations and exceptions to copyright, reining in IP enforcement, promotion of open access, and implementing development agendas. The declaration has a number of sections, entitled: Putting intellectual property in its place, valuing openness and the public domain, strengthening limitations and exceptions, setting public interest priorities for patent reform, supporting cultural creativity, and requiring evidence-based policy making.

Among the many suggestions in it, several highlighted by the organisers include:

* the use of other legal doctrines, like human rights and consumer protection laws, to cabin intellectual property rights expansion;

* promotion of open access, open educational resources, open government and related open information policies;

* strengthening limitations and exceptions that are needed to promote creativity, innovation and other socially beneficial uses of information and its products;

* setting public interest priorities in patent reform, including a more diverse structure of incentives for innovation;

* supporting cultural creativity through experimentation with new systems to reward and empower authors with, instead of in opposition to, new technologies for information diffusion;

* checking excesses in intellectual property enforcement with more safeguards, procedural fairness and proportionality in enforcement in our courts, at borders and on the internet;

* implementing development agendas, which take account of the economic, social and cultural development interests of all countries, throughout international intellectual property policy making; and

* requiring evidence, “rather than faith or ideology,” to be the core of all policy-making.

The Declaration intends to chart a more positive agenda – “one where the regulatory systems governing information and its products is informed by a fuller range of fundamental values and consideration of the public interest,” as stated by the Organization of WCL.

Global Academy on A2K held the post-Congress meeting in Washington on August 28, 2011. Representatives from Yale, China, Brazil, Egypt and South Africa participated the discussion. Many others, from India or France presented as well. Prof. Xue is leading the Chinese country study project on A2K. Her team is planning to complete the output by the end of 2011.

The founding APILP organized by the Institute for Internet Policy & Law of Beijing Normal University was held in Beijing on July 6-8, 2011. Program Director and Chair of Faculty Board is Dr. Prof. Hong Xue, Director of Institute for Internet Policy & Law, Beijing Normal University.

Asia Pacific Internet Leadership Program (APILP) is the very first multi-disciplinary and multi-stakeholder capacity building project on Internet Governance in Asia Pacific. The Founding Event was successfully held in Beijing. A group of distinguished experts from academia, governance organizations, technical community and judiciary in Asia Pacific constituted the faculty board. 20 fellows  from a variety of stakeholder groups joined the event. As the Faculty Chair, Prof. Xue, stated at the Opening Ceremony, APILP features 3 keywords as Internet, Governance and Asia Pacific and is becoming a research/learning center on Internet governance issues for this Region. The core members of the Faculty Board and the leading scholars from Australia, China, India, Japan, Singapore, Switzerland, Taiwan Economy unanimously agree to continue the project. Next year the event will be hosted by India NALSAR University of Law in Hyderabad.

Academic Faculty Board for founding APILP

Dr. Prof. Hong Xue, APILP Faculty Chair, Director of Institute for Internet Policy & Law, Beijing Normal University, China

Prof. Ang Peng Hwa, Director, Singapore Internet Research Centre; Acting Head, Division of Journalism and Publishing, Nanyang Technology University, Singapore

Ms. Bonnie Chun, HKIRC, Hong Kong SAR China

Mr. Champika Wijayatunga, Training Manager, APNIC

Ms. Christine Runnegar, ISOC, Switzerland

Prof. Izumi Aizu, Senior Research Fellow & Professor at Institute for InfoSocinomics, Tama University , Japan

Mr. Kuo-wei Wu, Director of Board, ICANN, USA

Prof. Vivekanandan, Ministry of HRD IP Chair Professor, NALSAR University of Law, India

Scientific program :

Day 1: Wednesday July 6, 2011

8:30-9:30 Registration

9:30-12:30 Opening and Orientation

Introduction to Internet governance—An Asia-Pacific Prospective

Lectures and discussions will focus on general issues and principles of Internet governance and current policy and legal framework. Historical review and stocktaking will analyze and assess the principles of openness, access, diversity and security. Lecturers and discussions will specifically address the concerns and priorities of Asia-Pacific Region.

9:30-10:30 Welcoming Addresses (Video 1)

Faculty Chair: Prof. Hong Xue, Director of IIIPL, Beijing Normal University

Speakers:

Prof. Bingzhi Zhao, Dean of Law School, Beijing Normal University

Pof. Qiheng Hu, President of Internet Society of China

Prof. Xiangyang Huang, General Director of CNNIC

Prof. Xianqiang Tang, Deputy General Director of CONAC

10:30-10:40 Break

10:40-11:10 Participants’ Networking

11:10-12:30 Keynote Speeches (Video 2)

Prof. Peng Hwa Ang, Director of Singapore Internet Research Center, Nanyang Technology University

Prof. Izumi Aizu, Japan Tama University, Co-Coordinator of Internet Governance Caucus

12:30-14:30 Lunch Break

14:30-17:30 Internet Technology and Infrastructure: Training by APNIC (Video 3)

This session will elaborate on how Internet works, what are the organizations that coordinate its addressing system, how these organizations relate to each other in an ecosystem and how decisions are being made by the Internet community.

Chair: Mr. Champika Wijayatunga, Training Manager, APNIC

Speakers:

Dr. Shuo Shen, Deputy Director of Development and Research Center, CNNIC

Mr. Champika Wijayatunga, Training Manager, APNIC

18:00 Social Dinner Sponsored by APNIC

Day 2: Thursday, July 7, 2011

9:00-12:00 Managing Critical Internet Resources

Lectures and forum discussion will examine the current regime of management of critical Internet resources, particularly ICANN domain name policies that have significant impact on diversity, access and security.

9:00-10:00 Issues in New gTLDs (Video 4)

Chair: Prof. Kuowei Wu, Member of ICANN Board of Directors

Showcase of ICANN Video on New gTLD Program

Discussants:

HKIRC, CNNIC, CONAC, .Asia, .Telnet, JPNIC, Zodiacs

10:00-10:15 Coffee Break

10:15-12:00 Comparative study of registration management (Video 5)

Issues: IDNs, vertical Integration, trademark measures, supporting developing countries, whois accuracy, illegal contents

Chair: Mr. Edmon Chung, CEO of DotAsia and Member of ALAC

Speakers:

Ms. Bonnie Chun, HKIRC

Dr. Shuo Shen, Deputy Director of Development and Research Center, CNNIC

Mr. Yang Yu, Director of Legal and International Affairs, CONAC

Mr. Edmon Chung, CEO of DotAsia and Member of ALAC

Ms. Lucy Wang, General Manager, .Telnet

Mr. James Seng, CEO of Zodiac and Member of ALAC

12:00-14:00 Lunch Break

14:00-17:00 Critical Legal Issues in Internet Governance

Lecturers will address a variety of legal issues, such as alternative dispute resolution to domain name disputes and intermediary liability of Internet service providers.

14:00-14:45 ADR and Data Protection (Video 6)

Chair: Ms. Christine Runnegar, Senior Manager of Public Policy, ISOC

Speakers:

Ms. Christine Runnegar, Senior Manager of Public Policy, ISOC

Dr. Hu Li, Deputy Secretary General, CIETAC

Mr. Fanwu Wang, Chief Judge of Civil Tribunal, Beijing 2^nd Intermediate People’s Court

14:45-15:00 Coffee Break

15:00-17:00 Copyright on the Internet (Video 7)

Chair: Prof. Hong Xue, Director of IIIPL, Beijing Normal University

Speakers:

Dr. Dongchuan Luo, Director of Research Division, Supreme People’s Court

Ms. Hong Ge, Judge of Intellectual Property Tribunal, Beijing 2^nd Intermediate People’s Court

Ms. Xiurong Ma, Judge of Intellectual Property Tribunal, Supreme People’s Court

Prof.V.C. Vivekanandan Director of Global Internet Governance & Advocacy, Ministry of HRD IP Chair Professor, India NALSAR University of Law

17:00 Conclusion (certificate issuance)

18:00 Social Dinner Sponsored by DotAsia

Day 3: Friday July 8, 2011

9:00-12:00 Faculty Board Meeting (for speakers only)

12:00-13:00 Lunch

13:00-18:00 Tour to Great Wall (for speakers only)

Background

“Internet governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet.” -Paragraph 34, WSIS Tunis Agenda

Asia Pacific has more than a half of world population. The Internet penetration in the Regional is growing rapidly. By the end of 2010, almost a half of world Internet users will be in Asia Pacific. Governance issues, such as Critical Internet Resources, Security and Stability, privacy, e-commerce, cyber-crime, network neutrality, dispute resolution, Internet of things, etc., are critically defining the development of this region. However, Asia-Pacific’s multi-stakeholder participation in the global Internet governance is considerably underdeveloped. Technical community and civil society in Asia-Pacific Region is particularly underrepresented and inarticulate in most global arenas on Internet governance. ASIA-PACIFIC INTERNET LEADERSHIP PROJECT (APILP) wishes to enhance regional capacity on policy-making and process-building for global governance of the Internet.

Given the tremendous diversity in languages, cultures, eco-social status in this Region, a systematic, informative and insightful training program will meet the pressing need of the Regional. Asia-Pacific Internet Leadership Program (APILP) will provide a unique opportunity for the Asia-Pacific participants from various stakeholder groups who have actively involved in Internet governance activities. We invite technical and management community (such ccTLD managers, gTLD registries, registrars), governmental officials, civil society leaders and Internet entrepreneurs to become the fellows. APILP  will provides Internet policy training or brainstorming for current or future leaders of Asia-Pacific Region.

Sponsors for Beijing Event

CNNIC

CONAC

APNIC

DotAsia

Singapore Internet Research Centre

 2011年7月6－7日，由北京师范大学互联网政策与法律研究中心主办、中国互联网信息中心（CNNIC）、政务和公益机构域名注册管理中心（CONAC）、亚太互联网信息中心（APNIC）、新加坡互联网研究中心、.Asia以及.Telnic 等多家单位协办的亚太互联网治理国际研讨会 （APILP）在法学院18层学术报告厅隆重举行。北京师范大学法学两院院长赵秉志、互联网政策与法律研究中心主任薛虹教授、中国互联网协会理事长胡启恒女士、中国互联网信息中心（CNNIC）主任黄向阳教授、政务和公益机构域名注册管理中心（CONAC）副主任唐贤强先生、最高人民法院研究中心主任罗东川法官、北京第二中级人民法院民庭庭长王范武先生、最高人民法院知识产权法庭马秀荣法官、CNNIC的发展研究中心副主任沈烁博士、CIETAC副秘书长李虎博士、新加坡互联网研究中心主任Peng Hwa Ang教授、日本互联网治理核心小组的联合协调员Izumi Aizu教授、ICANN理事吴国维教授、互联网协会公共政策高级官员Christine Runnegar女士、印度NALSAR大学法学院V.C. Vivekanandan教授、APNIC培训官员Champika Wijayatunga先生等出席了此次会议并发言。

在本次研讨会中，诸多青年学子们也积极参与其中，纷纷提问和发言，和与会专家探讨了许多有关互联网综合治理的问题。与会人员畅所欲言、气氛活跃而融洽，既为国内外互联网领域的专家们提供了深入探讨互联网治理方面的机会，也加大了我院在互联网领域的学术影响力，更为亚太互联网治理起到了积极的推动作用。

首届亚太互联网治理国际研讨会议程

2011年7月6—7日 中国北京北京师范大学新主楼18层法学院会议室

主办方：北京师范大学互联网政策与法律研究中心

赞助方：CNNIC， CONAC, APNIC, .Asia, Singapore Internet Research Center, .Tel.

2011年7月6日，星期三（第一天）

8:30—9:30 注册

9:30—12:30 开幕式和情况介绍

互联网治理的介绍——亚太的未来发展

演讲和讨论将着眼于互联网治理和当前政策与法律框架内的一般问题和原则规定。通过历史性回顾和盘点，分析并评价开放性、可访问性、多样性和安全性的原则。演讲和讨论将专门针对亚太地区关注的问题和重点展开。

9:30—10:30 欢迎仪式

主持人：薛虹教授 北京师范大学互联网政策与法律研究中心主任

演讲者：

赵秉志教授 北京师范大学法学院、刑事法律科学研究院院长

胡启恒女士 中国互联网协会理事长

黄向阳教授 中国互联网信息中心（CNNIC）主任

唐贤强先生  政务和公益机构域名注册管理中心（CONAC）副主任

10:40-11:10 与会者自我介绍

11:10-12:30 主题演讲

Peng Hwa Ang教授 新加坡互联网研究中心主任，南洋理工大学

Izumi Aizu教授 日本多摩大学，互联网治理核心小组的联合协调员

12:30-14:30 午餐

14:30—17:30 互联网技术和结构：由亚太互联网信息中心（APNIC）进行培训

此部分将详细说明互联网如何工作，协调处理系统的组织有哪些，在该系统中这些组织之间的相互关系和互联网社会的决定是如何做出的。

主持人：Champika Wijayatunga先生APNIC培训经理

演讲者：

沈烁博士CNNIC的发展研究中心副主任

Champika Wijayatunga先生APNIC培训经理

17:30 APNIC欢迎晚宴

2011年7月7日，星期四（第二天）

9:00—12:00 关键互联网资源的管理

讲座和论坛讨论将对当前的关键互联网资源管理制度，特别是对多样性、可访问性和安全性有重要影响的ICANN域名政策进行考察。

9:00—10:00 新通用顶级域的问题

主持人：吳國維教授 ICANN理事

播放ICANN关于新增通用顶级域名的国际推广活动的短片

讨论者：HKIRC, CNNIC, CONAC, .Asia, .Telnet, JPNIC, Zodiacs

10:15—12:00 注册管理的比较研究（国际化域名、纵向整合、商标措施、支持发展中国家，whois的准确性，非法内容）

主持人：Edmon Chung先生DotAsia首席执行官&ALAC成员

演讲者：Bonnie Chun女士HKIRC官员

沈烁博士 CNNIC的发展研究中心副主任

俞阳先生 CONAC国际、法律部主任

Edmon Chung先生DotAsia首席执行官

Lucy Wang女士 .Telnet总经理

James Seng先生 Zodiac首席执行官

12:00-14:00 午餐

14:00—17:00 互联网址里的关键法律问题

讲座涉及一系列法律问题，例如域名纠纷的替代争议解决和互联网服务提供者的中介责任。

14:00—14:45 替代争议解决（ADR）和信息保护

主持人：Christine Runnegar女士，公共政策高级经理，ISOC

演讲者：Christine Runnegar女士，公共政策高级经理，ISOC

李虎博士 CIETAC副秘书长

王范武先生 北京第二中级人民法院民庭庭长

15:00—17:00 互联网版权

主持人：薛虹教授 北京师范大学互联网政策与法律研究中心主任

演讲者：

罗东川法官 最高人民法院应用法律研究所所长

葛红法官 北京第二中级人民法院知识产权庭

马秀荣法官 最高人民法院知识产权审判庭

V.C. Vivekanandan教授 印度NALSAR大学法学院

17:00 闭幕式

17:30 DotAsia欢送晚宴

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.