Institute for Internet Policy & Law @ Beijing Normal University

ICANN completed its 43rd meeting in Toronto. The new CEO took office and a couple high-level officers appointed. Over the busy week, I drafted a few policy documents that have been adopted by the pertinent constituencies.

I drafted the “ALAC Statement on Trademark Clearinghouse Document”.

In August 2012 the Registry Stakeholder Group filed a DIDP requesting all documents relating to

• Any claims alleging ownership of intellectual property rights made by any bidder or bidders [for Trademark Clearinghouse (TMCH)] responding to the RFI, including but not limited to claims of copyright in data or compilations of data, patents, trademarks or trade secrets; and

• Any analysis regarding validity of these claims.

In September 2012 ICANN responded that: Regarding this item, to the extent that bidders made claims of ownership of intellectual property rights associated with the proposed operation of the Trademark Clearinghouse, those materials are subject to the same conditions of non–disclosure identified in conjunction with Documents on cost and financial models regarding the operation of TMCH. Regarding claims of ownership of intellectual property rights arising out of the operation of TMCH are being negotiated and will be published in the finalized agreement later.

The ALAC wishes to request further information on the following:

• Intellectual property rights affect or impact ICANN’s decision and selection of TMCH providers. Legally, except trade secrets, intellectual property rights, including Patents, Copyright, Trademarks, should be publicly disclosed in due course either for subsistence or exercise. Will intellectual property rights that affect or impact ICANN’s decision or selection, be disclosed to the community in due course, or will they be allowed to remain secret?
• Will ICANN (and its community) be appropriately licensed on royalty-free or RAND (reasonableand-non-discriminatory) basis by the relevant intellectual property owners?
• Is ICANN developing necessary intellectual property policy for decision-making or contract negotiation?

The ALAC further advises that ICANN needs to implement a thoughtful and comprehensive intellectual property policy in which the global public interest is properly secured. In this regard, the Internet Engineering Task Force (IETF) intellectual property policy sets a good example.

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I draft ALAC Comments on IDN ccTLDs PDP.

We note with concern that the draft recommendations consider selected IDN ccTLD strings to be confusingly similar based on their appearance to “a reasonable Internet user who is unfamiliar with the script” although “linguistic, technical, and visual perception factors” will be taken into consideration.  Notwithstanding the merit and rationale for this assessment criterion, an assessment on confusing similarity based primarily on the appearance of selected strings to users unfamiliar with the script may not be consistent with the nature and purpose of IDN ccTLDs, which are fundamentally introduced for the use and benefit of local IDN users in pertinentccTLD territories.  Without taking into account sufficient linguistic factors, problematic results may occur.  For example, an IDNccTLD that is assessed as not confusingly similar by a user “who is unfamiliar with the script” may well be deemed confusingly similar by the local IDN user and vice versa.  We believe that this particular issue can be addressed in the policy making processthrough more consultations with the IDN communities in implicated ccTLD territories.

A group of IP scholars and social activists met in the ambit of Gobal Research Network on Limitations and Exceptions at Washington College of Law, American University in the 3rd week of September. This was the 3rd meetings on the research topic since the establishment of the Gobal Network. With the participatant from North America, Latin America, Europe, Asia-Pacific and Africa (working in US though), the Network is able to stimulate dynamic discussion on globally compatible copyright flexibility model. Although there were many debates and misunderstanding on the proposal “open” model, particularly between Latin American civil law tradition and American common law tradition, consensus is gradually being built. The research on 3-step test is also fruitful. After the meeting of Day one, some participants took a long trip to Maryland to meet the TPP negotiators from all Member States except Canada and Mexico, both of which will not join negotiation until next round.

The Discussions show that there are many creative industries that are relying on copyright flexibility and newly opened-up legal model (e.g. Singapore and Isreal) exerts positive economic effect on GDP and employment. The so-called open model does contain a few new elements that were either overlooked or ruled out. Firstly, open model is shifting the defensive fair use to proactive users’ right, which has been confirmed in Canadian case law; secondly, open model may incorporate the legal presumption for the listed use, which would ease the burden of proof from the users; thirdly, 3-step test can be used prospectively to enable new exceptions, rather than to limit the existing exceptions.

It is interesting to witness the back and forth of the copyright reform in a couple of countries. While Panama enacted a restrict copyright law recently, Brazil is experimenting some flexible approach. China’s 3rd Revision of Copyright Law is another focus of internation attention. For more information, please refer to my recent paper that covers all the important aspects of the 2nd Draft at WCL website.

At ALAC gTLD-WG meeting on Aug. 27th, I suggested that Implementation of Trademark Clearinghouse (TMCH) be a rolling out issue for the group to comment. It was agree by the group.

After TMCH Meeting in Brussels on August 20-21, 2012, the problems existing in the current TMCH implementation model have become widely aware in the community. Although TMCH providers is scheduled to begin operating in October (3 weeks from now), ICANN’s planned implementation models for Sunrise and Trademark claims are apparently not supported by a majority of the new gTLD applicants. The current model’s complexity, restrictions on new registries and high costs are widely criticized.

At-Large community concerns that the problems in the current model may be against the public interests for the following reasons.

1. Burdensome Cost Model to New Registries from Developing Countries

On June 1, 2012, ICANN posted a Preliminary Cost Model projecting the potential fees to be charged to TLD registries and trademark holders to fund the TMCH, i.e. upfront fees $7-10k per registry and the $150 per trademark were “upper bands” of the fees.

Since the proposed cost model was strongly disputed at Brussels Meeting, the ICANN-delegated providers are now open to considering
other models including a transaction model whereby there would be a fixed set up fee paid by each registry (for each TLD) and a variable transaction based fee.

The proposed fees are believed expensive to most new gTLD registries. For new registries from the developing countries that have just paid off high application fees, it would become extraordinary burdensome for their future operation. The little-used Application Support Program is unlikely to offer any help as well.

At-Large community therefore suggests ICANN consider setting up Implementation Support Program to help the new gTLD registries from developing countries to handle the complicated and expensive TMCH implementation.

2. One Set Does Fit All

The current TMCH model uniformly applies to all the gTLD registries, irrespective of their difference. As a result, there may be a couple of registries obliged to pay for the TMCH services that are not need by them. In a hypothetical case, say “.IGO” for intergovernmental international organizations’ names only, the registry has to pay for TMCH services although no trademark will be eligible for registration under .IGO because IGO names are not “trademarkable” under the Paris  Convention (with more than 100 member states).

On the other hand, uniform TMCH may not provide the tailored services that are really needed by the registries. For example, those GEO TLDs or IDN TLDs would like to restrict the Sunrise Period to only those rights holders having trademark registrations in their geo-regions or character set. But they would not be able to do so without setting up a completely separate process with the TMCH at additional cost or doing by themselves. This would additionally burdensome to registries, particularly from developing countries.

It seems that the ICANN drafted model as proposed / planned potentially limits market flexibility for variations of approaches to
sunrise and therefore drives the (per TLD) work on custom sunrises back to the TMCH. Instead,  more open and flexible model deserves further exploration.

3. Not Actively Soliciting Consensus

Since the implementation will be very imminent and there still lacks of consensus in a variety of stakeholder groups on almost all aspects of the implementation model, At-Large community seriously concerns whether it would be implemented timely for the new gTLD program. Since the much-debatable Brussels meeting, there is no follow-up meeting scheduled as planned.

ALAC therefore advises the Board to take immediate action to ensure that ICANN is seen as moving forward with the TMCH in public interests and with community consensus.

4. Lack of Transparency

ICANN so far refuses to disclose a series of key documents on selectionof TMCH provider and TMCH implementation model, including Executed contracts for the provision of Trademark Clearinghouse services and Documents on cost and financial models regarding the operation of the Trademark Clearinghouse.

ALAC therefore request the documents be timely release to enable the community to access the critical information on TMCH.

8月31日，美国新罕布什尔大学法学院院长John T. Broderick, Jr.教授、副院长Karen J. Borgstrom教授和富兰克林皮尔斯知识产权中心主任Mary Wong教授一行三人访问了互联网政策与法律研究中心。主任薛虹教授与之进行了两轮会谈。新罕布什尔大学法学院是全美最好的知识产权院校之一，其知识产权项目在全美的法学院中尤其突出。

美方院长对北师大的学科实力表示认可，表示愿与我中心合作，为学院学生提供中美优质法律教育资源。双方还就在知识产权、国际刑法等领域合作的具体方式、执行程序、培养项目等问题进行了磋商，达成了初步的合作意向。会谈最后，赵秉志院长向来宾赠送了法学两院的纪念品。

新罕布什尔大学法学院的来访推动了我院法学教育尤其是知识产权学科的国际化，增加了我院及互联网政策与法律研究中心在国际上的知名度，并且为法学两院青年学子提供了更多教育资源和国际机会。

2012年8月 14日至19日，由韩国信息安全局（KISA）主办的第十四届亚太新一代互联网青年精英会议大会（APNG）在韩国首尔梨花女子大学召开。我院互联网政策与法律研究中心主任薛虹教授受到了主办方的诚挚邀请并指派中心硕士研究生邱江涛作为代表参加了会议。邱江涛同学在会议上针对留守儿童的远程教育以及互联网时代远程教育的版权保护问题发表了演讲。

此次会议为期四天，有来自亚太地区20多个国家的80余名青年参加，并邀请了众多来自韩国互联网协会、日本东京大学、互联网数字与地址分配机构（ICANN）、韩国信息安全局（KISA）等机构的知名专家和学者进行演讲，其内容涉及互联网的发展、政策、法律、前沿技术等众多领域。在青年论坛环节，来自各国的硕士和博士就自己在该领域的研究成果与大家进行了分享，专家们对青年学子的研究和学术演讲进行了指导。本次会议为知名学者和青年学子之间搭建了一个良好的沟通平台，为青年学子在互联网领域的研究提供了丰富的国际资源。

来自通过此次会议，扩大了我院互联网政策与法律研究中心的国际学术影响，丰富了学生的国际视野，提高了学生的外语水平，客观上为我校学生参与国际事务提供了实践的机会，对于在国际上扩大我校、我学院、我中心的知名度有着积极的作用。