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Final Position Paper on WIPO

NZ Position on The World Intellectual Property Organisation (WIPO) Report to ICANN

MAY 25 1999 BOARD MEETING

May 19, 1999

I. STATEMENT FROM THE NEW ZEALAND NATIONAL SUMMIT ON INTERNET GOVERNANCE CHANGES

The Internet Society of New Zealand Inc held a "National Summit on Internet Governance Changes" on April 30 1999. The Summit was attended by a broad representation of the stakeholders in the development of the Internet in New Zealand, including business, academia, government, individuals and professional bodies. The Summit, representing the New Zealand Internet community, achieved a near unanimous consensus on the issues raised by the March Singapore meeting and subsequent events. The Summit stated:

"The New Zealand Internet community views with concern ICANN's move into policy creation before the establishment of membership structures and the ensuing democratic election of an internationally representative Board has taken place. We respectfully request that the Interim ICANN Board undertake no policy decisions, and rather finish the process for which they were appointed, namely the establishment of the requisite membership structures which can then elect the new Board. It is appropriate for that elected representative Board to move into policy approval based upon recommendations from the Constituency Organisations required by the Articles of Association.

"We oppose many of the WIPOrecommendations, as outlined below, and oppose any of them being imposed upon ccTLD's. While there may be a need for a global disputes resolution process in some areas of the gTLD's, that is not the case for New Zealand, and it is the right of other ccTLD's to choose whether they utilise such a process. We believe that the need for such a process has been based on a US-centric model which does not necessarily reflect the situation in other countries.

"In particular we oppose any compulsory disputes arbitration process and the compulsory take-down of disputed domain names. Both proposals add costs to doing business on the Internet and increase market uncertainty. In a worst-case scenario smaller businesses or businesses in smaller ccTLD's would be at risk of bankruptcy caused by the process if challenged by larger businesses or businesses in larger countries or the multi-national arena.

"We also oppose the Registrar Accreditation Guidelines and accompanying contractual provisions being imposed on ccTLD's. We believe that these provisions will lessen competition, rather than enhance it, by making the stakes too high for smaller businesses and smaller countries.

"We call for ICANN to instead hold to the By-Laws under which it is legally incorporated, in particularArticle VI, Section 2 (b) and Article VI-B, Section 1(a)(*1). Under these articles, the WIPO proposals and any recommendations from the GAC must be sent first to the DNSO for their advice. It is then up to the ICANN Board to follow that advice.

"New Zealand has a successful model which operates in a lightly-regulated environment. Our experience is that the low entry-barrier model with a "first come first serve" basis has demonstrated its worth. The New Zealand Courts have endorsed the approach (see http://www.domainz.net.nz/newsstand/) and find no jurisdictional problems with the very few cases which have come before them. In a judgement of the High Court of New Zealand dated 11 November 1998 the High Court said of Domainz' policy and conduct:

" I agree that there is no basis for pleading that Domainz committed some breach of a legal duty. It was not in any way party to conduct of a third defendant; on the contrary it has acted, as one would expect, honestly, efficiently, moderately and in conformity with its role as disinterested gatekeeper to the domain names system."

"The New Zealand Governmentwill send representation to the ICANN Government Advisory Committee Meeting in Berlin.

"ISOCNZ has the confidence of the Internet community as represented at the Summit and the government of New Zealand (see http://www.moc.govt.nz/ran/itpg/internet/index.html) for the policy environment under which ".nz" is run. New Zealand has the sovereign right to determine how ".nz" is run and opposes any attempt by ICANN or it's advisors to intervene in our internal affairs."

*1 "ARTICLE VI:  SUPPORTING ORGANIZATIONS

Section 2:  RESPONSIBILITIES AND POWERS

(b)  The Supporting Organizations shall serve as advisory bodies to the Board, with the primary responsibility for developing and recommending substantive policies regarding those matters falling within their specific responsibilities..." "ARTICLE VI-B:  THE DOMAIN NAME SUPPORTING ORGANIZATION

Section 1:  DESCRIPTION

(a)  The DNSO shall advise the Board with respect to policy issues relating to the Domain Name System...

II. BACKGROUND

Involvement of the Internet Society of New Zealand Inc (ISOCNZ)

The Internet Society of New Zealand is a not for profit, incorporated society.Its membership is open.Membership subscription costs NZ$50 per year.A full description of the principles of ISOCNZ may be obtained at its website at http://www.isocnz.org.nz.

ISOCNZ has no affiliation or formal relationship with ISOC.

ISOCNZ is responsible for management of the ".nz" ccTLD.It has contracted the management of this to its wholly owned for-profit company, the New Zealand Internet Registry Limited, which trades as Domainz.

In line with that responsibility, ISOCNZmaintains a watching brief on all activities which may affect the fabric of the Internet. Where appropriate ISOCNZ makes extensive effort to take part in the international consultation processes whether by email, in person, or by written submission. Internal consultation is normally held with our own membership, but when the issues are of a broader and more profound impact, ISOCNZ consults with the New Zealand community as a whole. ISOCNZ regularly liaises with the New Zealand government on issues of import to the greater New Zealand community.

ISOCNZ Responses to International Consultation Processes

  1. ISOCNZ monitored the formation of the IAHC and the MoU
  2. ISOCNZ monitored both the Green and White papers
  3. ISOCNZ made written comment on the Green and White papers (see  (link
  4. Domainz also made submissions to the Green Paper (see http://www.domainz.net.nz/newsstand/usgovt.html )
  5. ISOCNZ and Domainz were part of the Boston Working Group (BWG) submission tothe US Government, late 1998.As the BWG submission was only one of two formal responses to the IANA draft that preceded formation of ICANN, NZ was involved in a number of audio conferences with Ira Magaziner and the US Dept of Commerce
  6. ISOCNZ and or Domainz attended three of the international meetings prior to establishment of ICANN
  7. ISOCNZ has, through Domainz, participated in the WIPO process, attending the Sydney meeting and presenting submissions in response to RFC-2 (see:http://www.domainz.net.nz/newsstand/wipo2.html.).
  8. ISOCNZ made written submission on WIPO RFC-3 (see link)http://www.isocnz.org.nz/WIPOresponse2.html)
    [The New Zealand Ministry of Commerce made comment to WIPO endorsing ISOCNZ's submission.]
  9. ISOCNZ and Domainz attended March 1999 Singapore ICANN meeting
  10. ISOCNZ had representation at the April 1999 FICPI/AAPA meeting, Wellington, New Zealand
  11. ISOCNZ organised a New Zealand National Summit on the proposed changes to the governance of the Internet arising out of WIPO RFC-3 and the ICANN Singapore meeting

National Summit on Internet Governance Changes

New Zealand has been monitoring the significant changes to the governance of the global Internet which have been underway since the publication of the American Government's Green and White Papers. ISOCNZ and The New Zealand Internet Registry Ltd (Domainz) were involved in the consultations processes which led to the formation of The Internet Corporation for Assigned Names and Numbers (ICANN) outlined aboveThis process has been ongoing since late 1998 and we shared world expectations that once the membership structures had been created and the representative boards, such as the Domain Name Supporting Organisation (DNSO), had been elected, the current small group of appointed Interim Directors would be replaced by freely elected representatives of the Internet Community. At that stage the future policy for the governance of the global Internet would be developed.

The March 4 meeting of ICANN in Singapore saw the ICANN Board start to move into policy-implementation mode. This, coupled with the results ofthe World Intellectual Property Organisation (WIPO) "Requests for Comments" (RFC3) process, due to be presented at the ICANN meeting in Berlin in May, raised significant concerns within the New Zealand Internet community that New Zealand's right to determine how its own Domain Name System is administered may be removed or significantly altered. New Zealand was particularly concerned that ICANN appeared to be moving towards an uncritical adoption of the WIPO proposals which have significant implications for New Zealand in the realms of National Sovereignty, Ecommerce, and the Knowledge Economy.

III. NATIONAL SUMMIT - APRIL 30 1999

New Zealand Internet Community Concerns - WIPO RFC3

  1. ICANN entering into Policy creation before membership structures and democratically elected Boards are in place.
  2. Moderation of Domain Name Allocation - undue influence of Trade Mark/Intellectual Property concerns which are in direct conflict with New Zealand's "first-come, first-served approach" now endorsed in New Zealand law
  3. gTLD name registration - Registrar Contracts directly with ICANN
  4. Increased regulatory regime for ccTLD's - the "open" and "closed" proposals are highly regulated regimes and are counter to the New Zealand approach of deregulation and open markets.(1.2.4)
  5. ccTLD Registrar accreditation "guidelines" - unreasonable financial requirements would force many New Zealand companies out of the domain name registration business and place severe barriers to entry.
  6. Information transmission requirements - daily upload of registration recordshaveimpacts on privacy and conflict with NZ privacy laws
  7. Globalised disputes process and compulsory taken-down of disputed domain names
  8. The lack of New Zealand representation at the inaugural ICANN Government Advisory Committee (GAC) meeting in Singapore (because no invitation to the New Zealand Government arrived through the normal appropriate protocol channels)

The Summit

ISOCNZ called an urgent National Summit when concerns about the ICANN process became apparent. The Summit was run in partnership with Ihug (The Internet Group) and Ernst & Young, the latter providing a Senior Manager as the Independent Chair for the Summit.

The Summit had two functions - the first to raise awareness across all sectors of the Internet community about the implications of the proposed changes for the New Zealand ".nz" domain and the flow-on impacts for the future of the operation of the Internet within New Zealand. The second was to bring together a New Zealand position to take to the ICANN meeting in Berlin on May 25.

In order for this consultation to take place a wide variety of interests needed to be represented at the Summit. To achieve this a range of measures were used to widely promote the Summit including:

  • Regular mail-outs to a the relevant mailing lists and news groups
  • Personal invitations to the CEO's of the top 250 companies in New Zealand
  • Presentations at fora around New Zealand - e.g., the New Zealand Computer Society, the UniForum '99 Conference (The NZ Association of Open Systems Professionals.)
  • A series of timed and targeted media to both the business and the technical communities.
  • Radio and newspaper advertising
  • Media interviews - print, radio, television
  • Briefing of the E-commerce/IT spokespeople for all the political parties in Parliament

Attendees

The desired broad cross-sectorial representation at the Summit was achieved (see Appendix One). Fifty-five representatives from a number of government departments, top Internet Service providers, Web Design companies, educational institutions, law firms, and professional associations attended. In addition the Summit was audio-cast across the Internet with at least twenty-six streams in use at one time (total listeners unknown) and direct participation for listeners was enabled using email to the Summit.

Outcomes from Summit

The National Summit achieved consensus on the key issues of concern to the New Zealand community. Participants in the break-out groups on Intellectual Property & the DNS, Policy & the DNS, and NZ Representation at ICANN brought back specific recommendations which are outlined below. The few dissenting points of view accepted the consensus when their issues were fully debated (also below).

Break-out groups

  1. Intellectual Property and the DNS (Appendix Two)
    • Famous trade marks - do not support this initiative
    • Disputes procedures- do not support the root server being one of the four locations for dealing with issues.
    • Piracy - Existing law is adequate
    • Should have a uniform approach for ccTLD's - Do not support a global mandated solution - the processes should be developed along the lines of country of residence and suited to individual countries or other appropriate lower level jurisdiction.
  2. NZ Policy and the DNS (Appendix Three)
    • ccTLD's should be in the hands of relevant government to manage
    • ".nz" remains under control of NZ and we're happy with it- want to see more of what is planned by ICANN
    • We should go back to ICANN and say that the Government and the Community are happy with what we have and we have reservations over the processes that are proposed. Our comments are embodied in what ISOCNZ has responded on the WIPO paper.
  3. NZ Representation at ICANN (Appendix Four)
    • Endorse: Jim Higgins, Chair, ISOCNZ and Peter Dengate Thrush, Barrister
    • We should have New Zealanders in as many constituencies as possible, e.g. IDNO
    • ISOCNZ supports the formation of an Individual Domain Name Owners (IDNO) constituency

Alternative viewpoints

  • That a global disputes resolution process could be a positive thing as Treaties and conventions will be required in multi-jurisdictional dispute. Agreed: Provided is not compulsory and is much better thought out than at present. Local ccTLD's, e.g., New Zealand, may well have effective processes already.
  • The issue of Domainz being a monopoly was raised. The NZ Ministry of Commerce spokesperson said the government deemed it as an essential service and was happy with the way that ISOCNZ was handling the running of ".nz", and emphasisedthat there is no reason for the government to change the status quo unless there is a sign of market failure. He said there were no signs of anti-competitive behaviour or profit gouging. He also noted that there is a mechanism for complaint via the Commerce Commission and that Domainz had already been cleared by such an investigation in 1997.
(see http://www.domainz.net.nz/reference/report.html)

Consensus from Summit

  1. New Zealand has the right to determine how ".nz" is administered
  2. ISOCNZ as the delegated manager for ".nz" has the support and confidence of the New Zealand community and government
  3. Domainz as the commercial company tasked with running the Registry for ".nz" is doing an efficient and cost effective job
  4. The regulations proposed by the WIPO report for gTLD's must not be applied to ccTLD's in general and ".nz" in particular
  5. ICANN should make no policy decisions until the full membership structures are in place and a democratically elected Board is in place.
  6. The New Zealand Government must take its place on the ICANN Government Advisory Committee
  7. ICANN Board meetings should be open, not closed

IV. SUMMARY

The Internet Society of New Zealand Inc held a "National Summit on Internet Governance Changes" on April 30 1999. The Summit was attended by a broad representation of the stakeholders in New Zealand Internet and achieved a near unanimous consensus on the issues raised by the March ICANN Singapore meeting and subsequent events.

The New Zealand Internet community:

  • views with concern ICANN's move into policy creation before the establishment of membership structures and the ensuing democratic election of an internationally representative Board has taken place.
  • opposes the WIPO recommendations, asoutlined above, and opposes any of them being imposed upon ccTLD's and in particular
  • any compulsory disputes arbitration process
  • the compulsory take-down of disputed domain names
  • the Registrar Accreditation Guidelines and accompanying contractual provisions being imposed on ccTLD's

and calls for ICANN to hold to By-Laws as stated in Article VI, Section 2 (b) and Article VI-B, Section 1(a) which require that the Supporting Organisations (in this case the DNSO) be the ones to review such proposals and then make recommendations for the ICANN Board to carry out.

  • New Zealand has a successful model which operates in a lightly-regulated environment
  • As the delegated manager for ".nz" ISOCNZ has the confidence of the Internet community as represented at the Summit and the government of New Zealand
  • New Zealand has the sovereign right to determine how ".nz" is run
Signed
The Internet Society of New Zealand Inc

APPENDIX ONE

NEW ZEALAND NATIONAL SUMMIT ON CHANGES TO THE GOVERNANCE OF THE INTERNET: ATTENDEES BY ORGANISATION/COMPANY

Barrister
Black Albatross
CLEAR Communications Ltd
Consultant
Ernst & Young
Lawyer
Innovus Limited
Internet ProLink NZ Ltd
JADE Group
KuniSurf
Labour Party Spokesperson On Communications & Information Technology
Longworth Associates
Ministry of Commerce
Ministry of Research, Science & Technology
Netlink Corporate Internet Specialists
New Zealand Army
New Zealand Computer Society
New Zealand Police
New Zealand Post
North Shore City Council
NZ Internet Registry Ltd (Domainz)
Optimation Ltd
Shift Ltd
Tasman Solutions
Telecom Internet Services
Terabyte Interactive Ltd
The Internet Company of New Zealand Ltd (ICONZ)
The Internet Group Ltd (Ihug)
The Internet Society Of New Zealand Inc (ISOCNZ)
The University of Auckland
TUANZ (Telecommunication Users Association)
UNITEC Institute of Technology
University of Waikato
Wang NZ Ltd
Web Innovations Ltd

APPENDIX TWO

ISOCNZ Summit

April 30 th 1999

Notes from the Breakout session of theIntellectual Property group

The group reviewed the paper prepared by Peter Dengate-Thrush that is to be sent to WIPO as the response from ISOCNZ.Peter had already presented his paper to the summit meeting, and participated in the group discussion.

Points raised were :

  1. Famous trade marks
  2. Names known in NZ will not be known in other parts of the world. To be consistent in its application, would need to determine where the cross-over points occur. Existing practices should be adequate to deal with name piracy.Do not support this initiative - it is too difficult to describe; difficult to "get in" i.e. to become recognised as a famous name at the higher level, also difficult to determine the process by which a name is dropped from the list. The WIPO report is silent on how the status of a famous name is lost.
    Don Rae - NZ is party to a treaty but the clauses have never been used.
    Sanyo were able to claim their domain name back from the pirate but through normal means.
  3. Disputes procedures

The ICANN document suggests there will be a choice of four locations for dealing with issues.

This group disagrees with the location of the root server being one of those locations. This option would lead to going to the country where the root server resides - which may be fundamentally different from the citizenship or residence of the parties. This would make legislation difficult and impractical..

More on piracy -

There have been only very few cases in NZ so it's a bit difficult to make comment, eg only 50 cases in the US.

It is observed that rules and regulations that work are those that the community accept as being fair and reasonable.Some trademark lawyers - in the first few years kiwis register famous names, the courts recognise this and refused to accept. This is now maturing - all the pirates are now pulling out.

Have to have rules accepted by international community.

RMMB - Have dealt with domain name trademark disputes, none has ever gone to court. Existing law is adequate.

The issue is probably overstated.

WIPO brief -

Should have a uniform approach for ccTLD's -

Do not want a global mandated solution - the processes should be developed along the lines of country of residence and suited to individual countries or other appropriate lower level jurisdiction.

Don't want a online process interfering with existing procedures - mediation should be an option, with the parties agreeing the outcome will be binding.

Other comments on Peter's paper -

20-21 - the scale of the problem may be large in other locations, we don't have a problem with this in NZ.

There is considerable tension with domain names, but feel that the tension is being adequately resolved with existing procedures. While we are promoting hands-off can't say that there is no tension. But the tension is difficult to define and has not caused material substantial problems, or insurmountable problems, (this is purely commenting in the disputes within .nz)

.com names - too much time to deal with US lawyers etc, so support a type of regime to be operated globally - eg by ICANN.

The disputes resolutions may not be appropriate for ccTLDs because the two different groups face considerably different disputes.

Would be happy to see the proposed (global) approach to disputes resolution less the automatic takedown less the mandatory nature - should be optional only. Should only apply to GTLDs or cross ccTLD

Optional jurisdiction available - a global external and neutral organisation to mandate the process.

Support 39

Agree with 40

Agree with 41

Agree that there should be a contractual arrangement. But NZ has its own contracting arrangements.

48 - the need to provide contact details should be just as critical for non-commercial as for commercial domain name holders.Less evident - provides accurate contact information. The details should be provided, and accurate in case of remedy. Then can aim the suit at the registrant.

49 - support

56 - and add willful or negligently fail to provide accurate information.

65-70 support

J Northover
Recorder

APPENDIX THREE

Policy and the DNS

Andrew Mason Facilitator

Summary

Cc's should be in the hands of relevant government to manage

Show of hands 20 up 1 down - agree with the proposition (1 recorded abstention)

.nz remains under control of NZ and we're happy with it

want to seem more of what is planned by ICANN

We should go back to ICANN and say that the Govt and the Community are happy with what we have and we have reservations over the processes that are proposed. Our comments are embodied in what ISOCNZ has responded on the WIPO paper.

M Harris
Recorder

APPENDIX FOUR

ISOCNZ Summit
30 April 1999 New Zealand Representation at ICANN

Direction of representation - Representatives:

Jim Higgins, Chair, ISOCNZ

Peter Dengate Thrush, Barrister

wwwTLD group will probably have a strong influence on ICANN

Internet is key to NZ economy

What is the cost to the end user?

ISOCNZ is working through the best ways to support access etc to all of NZ

Government is likely to develop a paper in advance, detailing current what NZ policy and it's reluctance to move away from it.

What do we need to do?

  1. Go to meeting
  2. Select the right people
  3. Get elected on the names council
  4. Try to get New Zealand representation on as many constituencies as possible
  5. Support the government representative at the GAC
  6. ISOCNZ give support for other constituencies,e.g., IDNSO
  7. ISOCNZ supports the formation of an Individual Domain Name Owners (IDNO) constituency
R Bourne
Recorder

Feedback was received from a variety of members of the Internet community and now forms part of this final paper. Thank you for your input. A post-Berlin report will follow as soon as it can be done.

© 1999 The Internet Society of New Zealand
Last updated 19 May 1999

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