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Intellectual property debate heats up, as ICANN looks to the future

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ICANN Lisbon The first day of the ICANN meetings in Lisbon had a certain predisposition to it. Lost luggage complaints, which oddly dovetailed with a certain ICANN-induced weariness, seemed to be more prevalent than concerns about the organization itself. A kind of internet industry bonding ritual had begun, along the lines of Monday morning at the water cooler.

The opening day speeches reinforced that feeling of familiarity. Everybody seemed to be getting to know each other again after an extended absence.

The second day had more of a feeling of sleeves being rolled up, as everyone involved broke off into groups of particular interest. One of the difficulties of this arrangement is that with so many worthwhile topics being discussed, and some of the sessions being all-day affairs, you need to make a decision early on about how to approach the day.

I decided to focus on the registrar and intellectual property angles, which have revolved around the issuance of new top level domains (TLDs), and the privacy debate surrounding the Whois database.

The arduous task of approving new TLDs has dogged ICANN for years. In what is essentially a kind of virtual land rush, ICANN has taken it upon itself to determine the who, what, where and when of entirely new classes of property rights.

Although the .xxx argument is the most famous, and has yet to be resolved (allegedly sometime this week), the problems created by this approach are really more complicated than the moralistic issues that so often surrounded that debate. In fact, the .travel/.aero debate of a few years ago proved as divisive if not more, due to the stubborn odyssee of Edward Hasbrouck, a travel writer, to determine why a relatively narrow industry group had received an entire TLD to the exclusion of all other stakeholders.

ICANN's bylaws require it to "operate to the maximum extent feasible in an open and transparent manner". Instead, following approval of .aero by ICANN's Board of Directors, the rules for .aero were drafted by ICANN staff in secret meetings with Société Internationale de Télécommunications Aéronautiques (SITA). These rules differ radically from the original proposal, in that only suppliers of travel services, not consumer advocates, are allowed to register .aero domain names. Consumers and travellers aren't welcome. Members of the "aviation media" can register .aero domain names, but only if they "promote" air transportation. No critics or muckrakers need apply.

The current process seems to be far more inclusive than the divisive process that had Hasbrouck hounding ICANN for years for information regarding the process that led to the approval of the .travel/.aero TLDs, but it still begs the question of just what kind of rights ICANN is granting, and why and how certain people or groups become excluded from obtaining those rights.

ICANN, as it states in its own literature, exists to promote the security and stability of the internet. Part of that responsibility consists of providing a coherent framework for the net itself, which may indeed include organizing the TLDs in a manner that is easily comprehensible to the public.

In fact, today's discussion in the intellectual property forum provided a nice example of how a more inclusive ICANN process ought to work. The sponsors of .asia have provided a very orderly procedure for ensuring that current trademark holders can maintain that trademark, essentially establishing a three-step procedure with current trademark users at the front of the line.

One participant in the discussion noted that in many jurisdictions the first to register a trademark takes precedence over anyone using a sufficiently similar mark that has not been registered, which could lead to problems in certain jurisdictions, Edmon Chung of .asia noted that it specifically intended that current users, whether located in Asia or not, retain their rights with a minimum of potential litigation. After all, the point is for people or companies actually to use the names, not to squat on them.

The nexus to Asia is sufficiently loose to enable almost anyone with an established trademark to register it through .asia - only one of the tech, admin, billing or registrant parties involved needs to be in Asia, which includes the Marshall Islands, an American protectorate. Thus, just about any American company will be able to qualify. Admittedly, geographical distinctions are easier to draw than substantive distinctions, as in the .travel/.aero domains, but again the openness of the process is what matters. Conflicts would be dealt with through public auction, though that raises the question of economic might versus legal right.

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