INZ Submission to Magaziner Green Paper

15 CFR Chapter XXIII
[Docket No. 980212036-8036-01]

"Green Paper"

The Internet Society of New Zealand Inc.

1.1 . The Internet Society of New Zealand Incorporated ("ISOCNZ") is a voluntary non-profit association of organisations and individuals with an interest in the development and management of the Internet within New Zealand. It was established in 1995 to foster coordinated and cooperative development of the Internet in New Zealand. It also works to safeguard the Internet's philosophy of open and uncensored exchange of information.

1.2 . ISOCNZ is not part of nor funded by Government, although some Government agencies and employees are members and councilors.

1.3 . ISOCNZ currently has no affiliation with The Internet Society (ISOC). It is a completely autonomous organisation.

1.4 . ISOCNZ has responsibility for management of the country code Top Level Domain, ".nz", by authority delegated from IANA.

1.5 . The ISOCNZ Council, elected by its members, formulates policy and undertakes other initiatives in respect of the .nz domain, the second level domains within .nz and the allocation of names within .nz. The policies can be found at www.isocnz.org.nz.

1.6 . ISOCNZ has formed a separate company, "The New Zealand Internet Registry Limited", trading as Domainz, to carry out the "registry" function for the .nz domain. Domainz performs that function on a commercial basis, directed by the policies specified by ISOCNZ and therefore within the policy framework derived from NSF, IANA, the RFC's and other rules, which govern the internet generally.

1.7 . ISOCNZ is a leading commentator on Internet issues, representing member views to politicians, industry figures, and the media in New Zealand.

1.8 . The email address for further information regarding this submission is secretary@isocnz.org.nz

2. Green Paper

2.1 . ISOCNZ regards the "Green Paper" as a positive step in the direction of placing the management and infrastructure of the Domain Name System and IP address allocation under an international authority. The designation of this body as a not-for-profit organisation is one that we fully support.

2.2 . ISOCNZ is pleased to be given the opportunity to comment on the "Green Paper". The paper outlines much of the way we ourselves have set-up structures for the management of the NZ Domain Name space (ccTLD) over the last 2 years. We would like draw on our experience to make some comment on parts of the paper for further consideration.

3. Submission overview.

3.1 . ISOCNZ has identified a number of problems and issues in the proposal as circulated in the discussion draft. For ease of reference, the main points are summarised immediately below, and then more detailed comments follow.

3.1.1 . The authority of the new-IANA needs to be clearly defined and continuity maintained throughout and after the transition period to the new organisation.

3.1.2 . There is a strong focus on issues relating to the US with insufficient attention being paid to non-US Internet participants.

3.1.3 . Greater consideration must be given to the maintenance of ccTLD's. Consideration must also be given to those countries, which are not able to operate their own ccTLD registry function.

3.1.4 . The trademark issue that is a major point of the green paper is a red herring and draws attention away from the overriding management issues.

3.1.5 . The .us domain should be promoted strongly for use within the US by US only companies, leaving the gTLD's to organisations with genuine international presence. As a part of this, the .mil and .gov domains that are solely for US organisations should be moved into the .us domain.

3.1.6 . The document is confusing in its use of the words "registrars" and "registries". The clear term for "registrars" may be "approved registration agencies", with registrars/registries being the underlying databases and their managers.

3.1.7 . The structure of the new management board should be determined by a strong international consensus, not by US Government dictate.

4. Comments on the Proposal

4.1. ISOCNZ's primary concern.

4.1.1 . The green paper did not specifically address the policies and procedures for the management of ccTLDs, but focuses closely on the gTLDs. ccTLDs are of major importance to all non-US based Internet users and organisations and the management of them needs to be accorded an equal level of consideration in the proposed new structure. Conversely a mechanism must be provided for users in all countries to have a single point of access to any new gTLDs.

4.1.2 . From the perspective of ISOCNZ, the most important shortcoming in the proposal is the lack of an explicit mechanism to preserve the existing delegated authorities and management structures associated with ccTLDs. These authorities and structures, which have been put in place by virtue of the authorities of NSF and IANA must be preserved. Specifically, it is important that ISOCNZ and other ccTLD registries are able to carry out their existing functions without disruption and with legitimate authority, unless and until an appropriate procedure is adopted for implementing any changes to those arrangements.

4.1.3 . In particular, there should be no doubt where the ultimate authority resides for:

(a) granting exclusive franchises to the managers of ccTLDs; and
(b) control and operation of what is currently known as the IANA root zone.

4.1.4 . ccTLD registries will continue to have the same powers and authorities as before, granted by an existing or a new entity which clearly has the powers to do so;

4.1.5 . Any changes to those arrangements must be controlled by suitable consultation and change control procedures.

4.1.6 . If part of the objective in setting up the new entity is to create a more formal (probably contractual) framework to link the parties involved in managing and using the internet, then that framework must be equally explicit in dealing with the country code domains.

4.1.7 . Consideration needs to be made to ensure that countries unable to maintain their own management structure are able to be supported/fostered under a delegated authority until such time as they are able to maintain this for themselves.

4.2 . There are several other issues which less directly affect ISOCNZ in the performance of its management functions, but which do concern all users of the Internet and are important for the stability and sound management of the Internet worldwide. The main issues of concern are:

4.2.1 . The proposal does not sufficiently reflect the international character of the net. While it incorporates elements of US legal and institutional framework, it does not deal adequately with matters which will fall outside the US domestic jurisdiction;

4.2.2 . The proposal perpetuates the US preoccupation with trademark issues. While these are important, they are secondary to the proper management of the addressing and naming systems, which are central to the correct function of Internet. The parties involved in those disputes should be responsible for dealing with them, as with other transborder issues, such as copyright, taxation, advertising standards and pornography;

4.2.3 . The proposal to create new generic TLD's will exacerbate the problem of name confusion, as name claimants seek to register their preferred names in multiple domains. In isolation from attention to the ".us" domain it will lead to a proliferation of US names in domains which should be international. It would be better for the US to rationalise the .us domain, before any new gTLDs are created.

4.2.3.1 . The .us domain should be promoted strongly for use within the US by US only companies. This would relieve some of the pressure on the gTLD space. As a part of this, the .mil and .gov domains that are solely for US organisations should be moved into the .us domain. RFC 2146 provides a framework for this already.

4.2.3.2 . The gTLDs would be more appropriately used for organisations requiring an international presence. Rather than mandating the creation of an ad hoc set of new top level domains, ISOCNZ would recommend the development of a policy for the creation of new top level domains by consensus. ISOCNZ has established a model for the creation of new second level domains within the ".nz" domain, and we would refer the Committee to our web page that outlines this, as a model for creation of new global top level domains. (http://www.mcs.vuw.ac.nz/~hine/ISOCNZ/DNS/Change2LD.html)

4.2.4. Trademark Issues

4.2.4.1 . We can see no particular reason why those who manage the Internet naming system should become involved in disputes between trademark holders and those who may or may not infringe trademark rights. Use of the Internet across national boundaries creates the potential of infringing a range of other rights including copyright, advertising standards, tax rules and censorship laws.

4.2.4.2 . We commend to you the approach taken in New Zealand, some (but not all) elements of which seem to be reflected in the discussion draft.

4.2.4.3 . As a first principle, anyone who wishes to use or publish a name or any other material on the Internet should take responsibility for the consequences. If their action amounts to an infringement of trademark (or any other rights), that should be a matter between the Internet user and the trademark holder or person whose rights are allegedly infringed. To ensure some accountability we suggest that:

4.2.4.3.1 . Every name applicant must indemnify the registry for any consequences which follow from the use of the name or other material.

4.2.4.3.2 . There is no reason why trademark holders should have to rely on the applicant's choice of forum. The choice of law and forum should be with the parties involved;

4.2.4.3.3 . Name applicants should be required to provide sufficient information, for publication, to ensure that any trademark claimant can identify them and take steps if an infringement occurs;

4.2.4.3.4 . There may be scope for some voluntary dispute resolution mechanism, though we do not believe that is a responsibility of the top-level registries. Such mechanisms only work as far as the parties are willing to submit to them.

4.2.5. International makeup of the new board

4.2.5.1 . It is very important to the continuing growth of the Internet that the managing board represents a spectrum of interests internationally. A mechanism must be put in place to allow direct input or representation from ccTLD managers.

4.2.5.2 . ISOCNZ believe that the makeup of the new-IANA should be determined by international public discussion in public forum.

4.2.5.3 . It is much more important that the new-IANA be responsive to the various interests and needs on the internet. Users must have an acceptable set of procedures and remedies, and a clear statement of the terms on which the various parties are contracting for management of the net.

5. Conclusion

Support the recognition of the need for smooth and ordered transition.

Seek recognition of the needs of managers of ccTLDs.

The new-IANA must have international acceptance.

The .us domain should be sorted out before introducing new gTLDs to avoid repetition of current problems.

© 1998 The Internet Society of New Zealand