[To: council[at]gnso.icann.org] Dear Council Members, Please find an extract from the draft minutes of the GNSO Council teleconference held on 6 September 2007. This is the portion of the minutes that will be included in the Board report. Please let me know if you would like any changes made. Thank you very much. Kind regards, Glen ........................................................................... Extract from the Draft Minutes of the GNSO Council teleconference 6 September 2007 Proposed agenda and documents List of attendees: Philip Sheppard - Commercial & Business Users C - absent apologies Mike Rodenbaugh - Commercial & Business Users C. Bilal Beiram - Commercial & Business Users C - Greg Ruth - ISCPC Antonio Harris - ISCPC Tony Holmes - ISCPC - absent - apologies Thomas Keller- Registrars Ross Rader - Registrars - absent - apologies Adrian Kinderis - Registrars Chuck Gomes - gTLD registries Edmon Chung - gTLD registries Cary Karp - gTLD registries Kristina Rosette - Intellectual Property Interests C Ute Decker - Intellectual Property Interests C Cyril Chau - Intellectual Property Interests C Robin Gross - NCUC Norbert Klein - NCUC Mawaki Chango - NCUC Sophia Bekele - Nominating Committee appointee Jon Bing - Nominating Committee appointee Avri Doria - Nominating Committee appointee 18 Council Members (23 Votes - quorum) ICANN Staff John Jeffrey - General Counsel. Denise Michel - Vice President, Policy Development Olof Nordling - Manager, Policy Development Coordination Kurt Pritz - Senior Vice President, Services Liz Williams - Senior Policy Counselor Craig Schwartz - Chief gTLD Registry Liaison Patrick Jones - Registry Liaison Manager Glen de Saint Géry - GNSO Secretariat GNSO Council Liaisons Suzanne Sene - GAC Liaison Alan Greenberg - ALAC Liaison Rita Rodin - ICANN Board member - absent - apologies Bruce Tonkin - ICANN Board member - absent - apologies Observers Miriam Sapiro - consultant Liz Gasster - consultant MP3 Recording Avri Doria chaired this meeting Approval of the agenda Item 1: Update any Statements of Interest No updates Item 2: Discussion of New gTLDs 2.1 - review reports Final Report Introduction of New Generic Top-Level Domains Part A: Final Report http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm Introduction of New Generic Top-Level Domains Part B: Final Report http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-partb-01aug07.htm 2.2 - review public comments http://forum.icann.org/lists/gtldfinalreport-2007/ Liz Williams reported that the Final Report Part A and B, Introduction of New Generic Top-Level Domains posted for the public comments, included the edits posted by individual Council members among whom were mentioned Avri Doria and Chuck Gomes, incorporated all the small group discussions and the final committee meeting on 6 August 2007. The public comment forum ran from 10 to 30 August 2007 http://www.icann.org/announcements/announcement-10aug07.htm There were 81 comments in all and a synopsis of the comments was posted at http://forum.icann.org/lists/gtldfinalreport-2007/msg00082.html The issues fell into three categories. 1. The first category related to recommendations 6 and 20 with similar language about the way in which morality and public order issues and their lead objection process would be handled. 2. The second category of comments were general ones related to the process and urging ICANN to move towards having a robust and objective application process available as quickly as possible. 3. The third category's comment related to specific elements which included discussions of IDN issues, Recommendation 19 with respect to the use of Accredited ICANN Registrars and protecting the rights of others. The arbitrary cutoff date was midday, CEST on 30 August, 2007 for producing the synopsis of comments for Council members. Comments that were received after that time (but before the posted deadline) would be included in the Board report. The agreed process was to discuss the principles or recommendations where there were issues or comments. Principle A New generic top-level domains (gTLDs) must be introduced in an orderly, timely and predictable way No comments Principle B Some new generic top-level domains should be internationalised domain names (IDNs) subject to the approval of IDNs being available in the root. No comments Principle C The reasons for introducing new top-level domains include that there is demand from potential applicants for new top-level domains in both ASCII and IDN formats. In addition the introduction of new top-level domain application process has the potential to promote competition in the provision of registry services, to add to consumer choice, market differentiation and geographical and service-provider diversity. Mike Rodenbaugh asked for clarification of the statement "the reasons for introducing new TLDs include their demand from potential applicants" Avri Doria commented that in the absence of statistics or metric of demand, anecdotally demand was visible. Tony Harris commented that there was a lack of available domain options which was a good basic reason to introduce new ones. Chuck Gomes called attention to the wording of the principle, "there is demand from potential applicant for new top-level domains.." which did not quantify, but stated that was there is demand from potential applicants. Public comments and personal requests received attested to the demand from applicants. Mawaki Chango added that during the ICANN public forum in San Juan forum, many participants called for the completion of the process so that they could apply for TLDs. Principle D A set of technical criteria must be used for assessing a new gTLD registry applicant to minimise the risk of harming the operational stability, security and global interoperability of the Internet. No comments Principle E A set of capability criteria for a new gTLD registry applicant must be used to provide an assurance that an applicant has the capability to meets its obligations under the terms of ICANN's registry agreement. No comments Principle F A set of operational criteria must be set out in contractual conditions in the registry agreement to ensure compliance with ICANN policies. No comments Principle G The string evaluation process must not infringe the applicant's freedom of expression rights that are protected under internationally recognized principles of law. No comments Recommendation 1 ICANN must implement a process that allows the introduction of new top-level domains. The evaluation and selection procedure for new gTLD registries should respect the principles of fairness, transparency and non-discrimination. All applicants for a new gTLD registry should therefore be evaluated against transparent and predictable criteria, fully available to the applicants prior to the initiation of the process. Normally, therefore, no subsequent additional selection criteria should be used in the selection process. No comments Recommendation 2 Strings must not be confusingly similar to an existing top-level domain or a Reserved Name. Mawaki Chango expressed concern about moving away from the terms 'visually confusing' or 'visually similar' to 'confusingly similar'. Chuck Gomes clarified that the committee had chosen 'confusingly similar' because it was a broader term used in some international treaties and that this was fully noted in: Recommendation 2 iv) The Committee used a wide variety of existing law[42], international treaty agreements and covenants to arrive at a common understanding that strings should not be confusingly similar either to existing top-level domains like .com and .net or to existing trademarks[43]. For example, the Committee considered the World Trade Organisation's TRIPS agreement, in particular Article 16 which discusses the rights which are conferred to a trademark owner.[44] In particular, the Committee agreed upon an expectation that strings must avoid increasing opportunities for entities or individuals, who operate in bad faith and who wish to defraud consumers. The Committee also considered the Universal Declaration of Human Rights[45] and the International Covenant on Civil and Political Rights which address the "freedom of expression" element of the Committee's deliberations. Mawaki Chango also expressed specific concern about the new gTLD policy in the content of multi-script TLD strings. Avri Doria commented that there had been specific discussion of multiple-script TLD strings. Mike Rodenbaugh expressed concern that an 'Implementation Plan' was mentioned in Recommendation 2 xvii) while in fact it was not yet available. "There is tension between those on the Committee who are concerned about the protection of existing TLD strings and those concerned with the protection of trademark and other rights as compared to those who wish, as far as possible, to preserve freedom of expression and creativity. The Implementation Plan sets out a series of tests to apply the recommendation during the application evaluation process." Staff commented that there was work in progress, experts were being consulted, and the goal would be to have confusingly similar disputes resolved by an algorithm that would be posted ahead of time. Avri Doria commented that the draft implementation note from the staff indicated that a series of tests using the algorithm have not been formulized or finalized. It was agreed that the language should be changed from "implementation plan" to "work in progress". Recommendation 3 Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law. Examples of these legal rights that are internationally recognized include, but are not limited to, rights defined in the Paris Convention for the Protection of Industry Property (in particular trademark rights), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (in particular freedom of expression rights). No Comments Recommendation 4 Strings must not cause any technical instability. Avri Doria commented that there were public comments on this recommendation. Recommendation 5 Strings must not be a Reserved Word. No comments Recommendation 6 Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law. Examples of such principles of law include, but are not limited to, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination, intellectual property treaties administered by the World Intellectual Property Organisation (WIPO) and the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Robin Gross reiterated NCUC’s continued objection to Recommendation 6 as stated in the Statement of DISSENT on Recommendation #6 http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm#_Toc43... and called attention to the many comments that were received in the public comment period objecting to Recommendation Number 6. Robin Gross further stated: "I think that Recommendation Number 6 is so bad that I will vote against the entire report based upon Recommendation Number 6 and 20 alone." Norbert Klein expressed concern that although many comments were recorded on recommendation 6, there had been no consequence and they had not received sufficient attention. Chuck Gomes agreed that there were recommendations that not everyone could agree on, but in the general approach of trying to reach a rough consensus that a strong majority of the group could support, considerable time and a sincere and effective effort was made on recommendation 6 to try and address the concerns of competing constituencies and interests. The NCUC concerns were addressed in a reasonable manner considering that there was no way the group could reach a position that perfectly met everyone’s interest. Avri Doria commented personally for the record: "while I have come to accept this Number 6 because the majority of the people in the group did accept it, I am still very concerned about how ICANN can actually create fair processes dealing with morality when morality is such a broad subject. And I just wanted to reiterate that. So even though I have accepted it because the rough consensus was there and as a chair, accept it, personally, I still find it very difficult to understand how we’ll do it." Recommendation 7 Applicants must be able to demonstrate their technical capability to run a registry operation for the purpose that the applicant sets out. No comments Recommendation 8 Applicants must be able to demonstrate their financial and organisational operational capability. No comments Recommendation 9 There must be a clear and pre-published application process using objective and measurable criteria. No comments Recommendation 10 There must be a base contract provided to applicants at the beginning of the application process. No comments Recommendation 11 [Replaced with Recommendation 20 and Implementation Guideline P and inserted into Term of Reference 3 Allocation Methods section] Recommendation 12 Dispute resolution and challenge processes must be established prior to the start of the process. No comments Recommendation 13 Applications must initially be assessed in rounds until the scale of demand is clear. No comments Recommendation 14 The initial registry agreement term must be of a commercially reasonable length. No comments Recommendation 15 There must be renewal expectancy. No comments Recommendation 16 Registries must apply existing Consensus Policies and adopt new Consensus Policies as they are approved. No comments Recommendation 17 A clear compliance and sanctions process must be set out in the base contract which could lead to contract termination. No comments Recommendation 18 If an applicant offers an IDN service, then ICANN's IDN guidelines[28] must be followed. There were comments on the public comment list pertaining to this recommendation. Recommendation 19 Registries must use only ICANN accredited registrars in registering domain names and may not discriminate among such accredited registrars. The Chinese registrar in the public comments suggested that it was not a good idea to use ICANN accredited registrars only: http://forum.icann.org/lists/gtldfinalreport-2007/msg00055.html http://forum.icann.org/lists/gtldfinalreport-2007/msg00049.html Chuck Gomes commented that the registry community and some public comments articulated clear concerns relating to small registries only, suggesting that an exception could be made for them. Chuck went on to comment that in an effort to support the rough consensus process, the registries would support the total package including this recommendation in spite of the fact that they did not get what they wanted. Tony Harris commented that the Chinese registrar http://forum.icann.org/lists/gtldfinalreport-2007/msg00055.html made a valid a point because new TLDs combined with IDNs in regions where there are no ICANN accredited registrars would require other options in the development of new TLDs. Avri Doria commented that an implication of recommendation 19 could be a possible review of the registrar accreditation processes, costs and eventual barriers to accrediting registrars in non-developed areas. Chuck Gomes expressed empathy for the Chinese registrar and others in similar situations and supported a review of accreditation requirements to assure that they adequately meet the needs of regions sparsely populated by registrars. Kurt Pritz commented that ICANN had undertaken coaching new registries to acquaint them with ways in which they could satisfy the registrar requirements. ICANN, in the past couple of years has held outreach meetings, the most recent being in Hong Kong with a large number of registrar representatives from Asian and other countries. Kurt was optimistic that in the implementation of recommendation 19, ICANN would facilitate the implementation of new registrars in thinly registrar-populated regions. Adrian Kinderis repeated former comments that the recommendation tried to be all-encompassing and combined two distinct channels 1. Registries should use ICANN accredited registrars 2. Registries must use a registrar If broken down, it could address the issue that if registrars were used, they must be be ICANN accredited or as a registry, if it was decided to use a registrar, then they should be ICANN accredited. Adrian added that from a registrar point of view it would be a problem going forward because it could rule out potential new TLDs. Avri Doria commented that while there was discussion at the committee level after Adrian joined the committee, no changes were made to the recommendation. Chuck Gomes confirmed that registrars had the option of offering which ever TLDs they wished and that this was one of the rationales behind the registry’s concern, because some TLDs business models were too weak for registrars to support, thus registries were at the mercy of the registrars who justifiably might not be interested in providing any support at all for the new TLD. Adrian Kinderis acknowledged that the Registry Constituency’s support of Recommendation 19 was as a part of the “total package” as reflected in Chuck Gomes’ comments on the call and not potentially of Recommendation 19 in isolation. The Registrars Constituency, having helped author the recommendation completely support Recommendation 19 in its entirety. Adrian Kinderis also made comment that he believed that no other constituencies or groups within the gNSO had really thought about the ramifications of Recommendation 19 and as such it is only the Registry Constituency and the Registrar Constituency that could comment with any authority. In this circumstance, because of the lack of understanding, Adrian Kinderis also pointed out that the Registry Constituency was “on a hiding to nothing” if it spoke against the recommendation which was an unfortunate position. Avri Doria confirmed that the current discussion was noted in the discussion in the report under recommendation 19 and that there was ongoing dialogue between registrars and registries where new agreements may come on line that would change the condition for the recommendation. Alan Greenberg commented that because existing registries and registrars might be willing to accept the recommendation, did not factor in that it concerned potential new TLDs in areas where they may be no registrars and no registries and it would be a no-win situation for a geographic TLD in an area where there were no registrars. Kurt Pritz commented that the accredited registrars operated through a contract with ICANN and that provided certain protection for registrants. Current debate is taking place that is strengthening protection for registrants through making changes to the RAA and making registrars more responsive to the needs of the user such as addressing small registries and amending their agreement to allow for graduated sanctions. Replacing this with another model would require deeper discussion and reflection. Avri Doria suggested that when it came to the vote, recommendation 19 could be voted on separately if councillors so wished. Recommendation 20 An application will be rejected if an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted. Liz Williams drew Council's attention to where the discussion of Recommendation 20 was to be found, that is in the Terms of Reference Three - Allocation Methods and that Recommendation 19 was to be found in the Terms of Reference Four - Contractual Conditions and was the last in the flow of the recommendations through the report. Robin Gross reiterated an objection to recommendation 20, just as for recommendation 6, largely because of the harmful impact to freedom of expression that these recommendations still contained. Particularly, the NCUC finds Recommendation 20 to have unpredictable, non-transparent criteria. The NCUC is concerned because it lacks objectivity and its advantages established institutions and industry incumbents at the expense of start up and non-commercial users. Unfortunately, Number 6 and Number 20 unravel all the other attempts and all the other recommendations that propose predictable and objective criteria. " So, based on the harmful impact of freedom of expression, I’m inclined to vote against the entire report based upon Recommendations 20 and 6. " Mawaki Chango commented given the definition provided for 'community' and for 'explicit and implicit target' Council needed to define what was a 'TLD that was targeted to a community' in order to help the community understand what TLD would not be included in the category of TLD applications that explicitly or implicitly targeted a community. Avri Doria commented that there was no requirement that a TLD be explicitly targeted towards the community and there may well be TLD applications that do not specifically target a community. Chuck Gomes cited as an example that if .Berlin was proposed but the proposer did not state that it was targeting the members of the Berlin communities around the world, there would still seem to be an implicit targeting of that community. Mike Rodenbaugh asked what would happen in the event that a community was targeted in the original application, then they changed their business model, as has been the case in several of the country code TLDs to date. Should there be a promise that the applicant makes that they would stick to their intention to target a community for a certain amount of time? Tony Harris commented and questioned that with sponsored TLD applications, there could be requirements which would have to be respected. Alan Greenberg reiterated previous comments, giving dot China as an example, whether it would refer to the country or pottery and believed the answer was, that the contractual agreements included the applications as part of its documentation, and they are held largely to that, although business model changes could be accommodated. Kurt Pritz commented that it was a complex issue that had not yet been settled. The way the recommendations were written to staff indicated that the implementation should include an ability for the applicant, in case of a string contention, to show that the string representing a community brings some value to the domain name space and that it should be considered in a string contention. On the other hand, it is not envisaged that ICANN should police a string or a TLD to ensure that it would continue to dedicate itself towards that community. ICANN's function lies in writing contracts and seeing that businesses are launched Adrian Kinderis commented on the definition of gTLD and that the premise of the entire document fell under the banner of gTLD. Chuck Gomes commented that historically, the definition of the gTLD, included both sTLDs and unsponsored TLDs. In fact in the registry constituency, has divided its members into those two categories. In the current round a specific sTLD category is not being suggested and old sTLD are still considered gTLD. A gTLD is not a ccTLD in the broadest definition of the term. There is no requirement to be sponsored in this round. Adrian Kinderis confirmed that a supported or non supported community could equally apply for a gTLD. Mike Rodenbaugh expressed the concern and asked what would be the role of ICANN in the case of an applicant with a sponsored community, applying to ICANN for a gTLD, ICANN granting the application, and then the applicant essentially changing its business model completely. For example, if dot Cat became a TLD for actual feline cat owners, instead of Catalan speakers. Mike Rodenbaugh commented that there was a difference between policing and acting on complaints. Kurt Pritz commented that the sponsoring community was free to arrive at an agreement with the registry sponsor or the registry itself. And in order to support that registry and have an agreement between them, that would be a form of guarantee for them that the registry operations would continue to support the original intent of the sponsored community represented TLD. Alan Greenberg commented that Kurt's comment was different from what came out in the committee discussions, that it was acknowledged at that point that ICANN was not going to police but could, since the original application was part of the contract, react to complaints, which was very different from policing and very different from what Kurt had said that that a separate contract would be required between the two bodies if the sponsored organization wants to try to enforce anything. Robin Gross commented it was important to leave room for innovation In the domain name space. For a domain name to be registered for one purpose, and then used for an entirely different purpose was perfectly lawful as long as there was not any kind of broader misrepresentation for which there would be legal recourse anyway. Avri Doria called for comments on the Implementation Guidelines to be found in the Summary - Principles, Recommendations and Implementation Guidelines Avri Doria clarified that input from the discussion, with regard to the guidelines, could be added in the report but wording would not be changed. Liz Williams confirmed that a full analysis of the public comments including Mawaki Chango's comment on paragraph H, line T in the Implementation Guidelines on page 22 of the Report Part A and all the other comments would be included for the board report. There would also be an opportunity to raise issues at the new gTLD workshop during the Los Angeles meetings. Mike Rodenbaugh requested clarification on paragraph I "An applicant granted a TLD string must use it within a fixed timeframe which will be specified in the application process." It was clarified that the guideline referred to a timeframe. Avri Doria called for a vote on all the recommendations as a block, unless there was a proposed and seconded a motion which obtained a majority vote in favor of separating out any question, any recommendation or any set of recommendations for a separate and prior vote. There could be more than one motion for separation. Norbert Klein, seconded by Robin Gross proposed a motion to separate recommendation 6 and recommendation 20 as a unit for a separate vote. Avri Doria called for a roll call vote on the motion. Vote in favour: Robin Gross, Mawaki Chango, Norbert Klein, Jon Bing Total number of votes in favour: 4 Vote against: Mike Rodenbaugh, Bilal Beiram, Ute Decker, Kristina Rosette, Cyril Chua, Tony Harris, Greg Ruth, Avri Doria, Sophia Bekele (each holding one vote), Adrian Kinderis, Cary Karp, Edmon Chung, Chuck Gomes (each holding 2 votes) Total number of votes against: 17 Abstention: Tom Keller (holding 2 votes) Council members absent who did not vote: Philip Sheppard, Tony Holmes, Ross Rader. The motion did not carry. Mawaki Chango proposed a motion of separating Recommendation 2 from the rest of the recommendations. There was no second for the motion, thus there was no vote. Avri Doria seconded by Tony Harris proposed the motion: The GNSO Council supports the 20 recommendations, as a whole, as set out in the Final Report of the ICANN Generic Names Supporting Organisation on the Introduction of New Generic Top-Level Domains http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm going forward to the ICANN Board. Avri Doria called for a roll call vote. Vote in favour: Mike Rodenbaugh, Bilal Beiram, Ute Decker, Kristina Rosette, Tony Harris, Greg Ruth, Avri Doria, Jon Bing, Sophia Bekele (each holding one vote), Tom Keller, Adrian Kinderis, Cary Karp, Edmon Chung, Chuck Gomes (each holding 2 votes) Total number of votes in favour 19 Vote against: Robin Gross 1 vote Abstain: Cyril Chua, Norbert Klein, Mawaki Chango (3 votes) Council members absent who did not vote: Philip Sheppard, Tony Holmes, Ross Rader. (4 votes) The motion carried with a supermajority vote as defined in the ICANN bylaws, section 16 http://www.icann.org/general/archive-bylaws/bylaws-28feb06.htm#AnnexA Councilor's comments on the voting: Votes in favour Mike Rodenbaugh: "The business constituency, as we’ve said in our recent public comments, have some pretty serious concerns about what will happen in new TLDs. We think that these recommendations do not address those concerns at all, but we have been actively participating in this process now for two years. We feel like this forum, perhaps, wasn’t the best forum to deal with those concerns about abusive registrations since they need to deal with existing TLDs as well. We’re hopeful that our participation and our acceptance of these recommendations will result in Council and ICANN taking seriously our issues about abusive registrations in existing and new TLDs, and in the interest of consensus, we will support these recommendations." Kristina Rosette: "Support with the observation that there appears to be a logical inconsistency between on the one hand including Recommendations 2 and 3, but on the other hand refusing to recommend to new TLD applicants that they provide rights protection mechanisms." Votes against Robin Gross: " I vote against the report largely because of the harmful impact on freedom of expression that Recommendations Number 6 and 20, the noticeable lack of legitimate authority for ICANN to adjudicate people’s rights has not gone unnoticed in this process, so I vote against the report." Abstentions Norbert Klein: "I will abstain, but I hope that all the discussion which went on will be also forwarded to the board." Mawaki Chango: "I abstain because I am in favor of introducing new gTLDs and I would have loved to support this policy. But I still have a substantial issues with some of the recommendations namely the Recommendation 2. " Decision 1: The GNSO Council supports the 20 recommendations, as a whole, as set out in the Final Report of the ICANN Generic Names Supporting Organisation on the Introduction of New Generic Top-Level Domains http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm going forward to the ICANN Board. -- Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org