Proposed agenda and related documents
List of attendees:
Philip Sheppard - Commercial & Business users C.
Marilyn Cade - Commercial & Business users C.
Grant Forsyth - Commercial & Business users C.
Greg Ruth - ISCPC
Antonio Harris - ISCPC
Tony Holmes - ISCPC - absent, apologies, proxy to Antonio Harris/Greg Ruth
Thomas Keller- Registrars
Ken Stubbs - Registrars
Bruce Tonkin - Registrars
Jeff Neuman - gTLD
Jordyn Buchanan - gTLD
Cary Karp - gTLD
Ellen Shankman - Intellectual Property Interests C. - absent, apologies, proxy to Laurence Djolakian
Laurence Djolakian - Intellectual Property Interests C.
Lynda Roesch - Intellectual Property Interests C.
Milton Mueller - Non Commercial users C.
Chun Eung Hwi - Non Commercial users C. -absent, apologies, proxy to Milton Mueller
Gabriel Pineiro - Non Commercial users C. - absent
Amadeu Abril I Abril
17 Council Members
Audri Mukhopadhyay - GAC Liaison - absent, apologies
Thomas Roessler- ALAC Liaison
Roger Cochetti, Budget committee chair attended for item 7 on the agenda.
Elisabeth Porteneuve - ccTLD Liaison
Glen de Saint G�ry - GNSO Secretariat
Quorum present at 14:07 CET
Bruce Tonkin chaired this teleconference.
- Item 1: Approval of the Agenda
- Item 2: Summary of last meeting
Philip Sheppard/Ken Stubbs moved the adoption of the minutes seconded by Marilyn Cade.
The Council approved the adoption of the minutes, with Amadeu Abril l Abril abstaining
Decision 1: Motion adopted.
Matters arising from the minutes:
1. The GNSO chair was asked to liaise with the president of ICANN in connection with GNSO Council communication with the ICANN Board. Bruce Tonkin did not discuss this but posted a suggestion to Council explaining that the aim was to meet quarterly, via teleconference with the ICANN Board, to brief it on policy work undertaken and address any issues with regard to processes and procedures.
2. Liaise with the ICANN President on WIPO II recommendations - Item 3 on the agenda.
3. Discussion about new gTLDs as raised by Jeff Newman to be addresses in Item 8 Any Other Business
- Item 3: Update on ICANN President's working group on WIPO-II recommendations
Bruce Tonkin reported that the ICANN President had invited 6 members from the Government Advisory Committee to participate in the working group and asked the GNSO Council to nominate 6 participants. Bruce recommended that each constituency should nominate one person so that the GNSO Council representatives on the President's working group would represent a broad cross section of interests.
In response to a question from Jeff Neuman as to the purpose of the group, Bruce Tonkin referred to:
A discussion by the Board regarding the appropriate next steps for consideration of the WIPO recommendations
Whereas, the World Intellectual Property Organization (WIPO) sent ICANN a letter dated 21 February 2003 providing information about two decisions, concerning recommendations about the names and acronyms of International Intergovernmental Organizations and about the names of countries, which WIPO member states requested be transmitted to ICANN;
Whereas, in resolution 03.22 the Board requested the President to inform the Governmental Advisory Committee, the Supporting Organizations, and the other Advisory Committees of the 21 February 2003 letter from WIPO and to invite their comments;
Whereas, advice and comments were received from the At-Large Advisory Committee (ALAC), the GNSO Council, the Governmental Advisory Committee (GAC), and the Intellectual Property Interests and the Commercial and Business Users Constituencies of the GNSO;
Whereas, the Board has considered the advice and comments received, as well as the discussion and analysis in the 1 June 2003 General Counsel's Briefing Concerning Policy-Development Process on WIPO-2 Recommendations;
Resolved [03.83] that the President is directed to form, in consultation with the chairs of the GNSO Council, the ALAC, and the GAC, a working group including participants in the GNSO, the ALAC, and the GAC as well as Board members, for the purpose of analyzing the practical and technical aspects of implementing the WIPO recommendations, and notably the implications for the UDRP; and
Further resolved [03.84] that the President and General Counsel are directed to investigate and analyze legal aspects of the relationship between ICANN's mission and the recommendations conveyed by the 12 February 2003 letter from WIPO, and to report to the Board and to the working group formed under resolution 03.83 on the result of that investigation and analysis. Among topics to be considered should be whether implementation of the WIPO recommendations would require ICANN to prescribe adherence to normative rules, not based on established laws, for the resolution of competing third-party claims to rights to register names.
Amadeu Abril l Abril clarified that the purpose of the ICANN President's working group was not to look at implementation but to study the implications, how, if and what, and to map out the question. Difficult legal questions arise where protection is sought for matters which are not protected under law at a national level. Six participants from the GNSO are preferable to one, and at least some of those participants should have a legal background in international law.
Marilyn Cade drew attention to the way WIPO l and WIPO ll had come about. The former was a request for a fast track study with broad participation followed by a process in ICANN to determine what outcome should be related to the UDRP. The latter was a study of the implications of the recommendations that came from within WIPO itself.
Bruce Tonkin, seconded by Milton Mueller, proposed:
that the GNSO Council requires each constituency to nominate one person to represent the GNSO Council on the President's working group to deal with the WIPO ll recommendations.
The Council unanimously approved the motion.
Decision 2. Each constituency is required to nominate one person to represent the GNSO Council on the President's working group to deal with the WIPO ll recommendations.
- Item 4. Discussion of Staff Managers report on UDRP
Bruce Tonkin summarized saying that the report was divided into procedural and substantive issues. The Acting General Counsel of ICANN considered that most of the substantive issues and some of the procedural issues would extend beyond ICANN's mission.
01. Should there be improved centralized, searchable access to administrative panel decisions
02. Should complainant and respondent filings be publicly available
03. Should complainants and respondents be allowed to amend and/or supplement their filings?
04. Should the provider and panel selection processes be modified to address concerns about potential conflicts of interest?
05. Should standards for accrediting providers and panelists be promulgated?
06. Should transfers of proceedings between providers be permitted?
07. Should refunds of providers' fees in the event of settlement be mandatory and standardized?
08. Should the notice requirements be amended?
09. Should the procedure for implementing orders to transfer registrations be amended?
10.Should administrative panel decisions be subject to internal appellate review?
11. Should the policy be changed to require registrars to wait until appeal deadlines expire before taking action in response to court orders?
12. Should the policy be amended with respect to protection for non-registered marks?
13. Should the policy be amended to provide guidance regarding the interpretation of "confusing similarity"?
14. Should multiple complaints be allowed concerning the same registration and registrant?
15. Should the policy address the question of whether "holding" constitutes "use"?
16. Should "settlement negotiation" communications be excluded as permissible evidence of bad faith?
17. Should complainants be required to post a bond and/or pay a penalty in order to deter "reverse domain-name hijacking"?
18. Should the policy expressly include affirmative defenses?
19. Should administrative panel decisions have precedential effect?
20. Should "cancellation" (deletion of the registration � allowing subsequent re-registration by anybody) continue to be an available remedy?
Bruce Tonkin supported by Marilyn Cade, proposed that each constituency prioritize five issues from the total and then the GNSO Council would ask if they were in ICANN's scope in an answer to Council members who did not agree with the delimitation considered by ICANN that most of the substantive issues would extend beyond ICANN's mission and that some of the issues could be possible changes but in fact were not solicited by anyone.
Bruce Tonkin also proposed that after the elements were identified, there should be a discussion with ICANN General Counsel as to the scope of the issues within ICANN's mission.
Thomas Roessler, ALAC Liaison, said that ICANN should certainly not extend the UDRP to take up complex cases better dealt with in court, but that -- on the other hand -- it is certainly within ICANN's mission to either cut back or fix policy where it has already invaded realms better left to courts. On outreach done by the ALAC, it was felt that there was too little time for thorough outreach on these complex issues, but that ALAC had some expertise available on UDRP, and would be interested in continuing to participate in the discussion.
Bruce Tonkin, seconded by Milton Mueller, proposed:
- That the GNSO requests each constituency to review the list of issues presented in the Staff Manager's report on UDRP and identify the top five issues from the report that the constituency believes has the highest priority for policy development.
This should be done by the next GNSO Council meeting on September 25.
The Council unanimously approved the motion.
Decision 3 : Each constituency is requested to review the list of issues presented in the Staff Manager's report on UDRP and identify the top five issues from the report that the constituency believes has the highest priority for policy development. This should be done by the next GNSO Council meeting on September 25.