Apologies, attachment now, well, attached! From: council <council-bounces@gnso.icann.org> on behalf of Mary Wong <mary.wong@icann.org> Date: Tuesday, May 28, 2019 at 16:14 To: "council@gnso.icann.org" <council@gnso.icann.org> Subject: [council] IGO Curative Rights: Materials from March 2017 facilitated discussions and compilation of GAC advice on the overall topic of IGO protections (preventative and curative) Dear Councilors, In preparation for your discussion regarding possible engagement with the GAC on the topic of IGO protections, you may find the following links helpful. These constitute the background documents and recordings for the facilitated discussion that took place at ICANN58 in Copenhagen in March 2017 on this topic (i.e. Problem Statement, Briefing Paper, facilitator’s slides and the transcript of the session: https://icann58copenhagen2017.sched.com/event/9sZA/gnso-gac-facilitated-dial... [icann58copenhagen2017.sched.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__icann58copenhagen2017.s...>). As you go through the materials, please note the following: * The background summaries relate to the topic as matters stood in March 2017; as such, for Curative Rights, there have been subsequent developments that are not mentioned in the documents (e.g. subsequent GAC advice; finalization of the Curative Rights recommendations, etc.). * At the time, the IGO-INGO Curative Rights PDP Working Group had just published its Initial Report for public comment – as such, what became Recommendations 1-5 comprised, at the time, some preliminary recommendations that were later modified by the Working Group. * The facilitated discussion began with, and focused largely on, “preventative” protections for IGOs – this remains an outstanding topic for which the Board had indicated it wished to resolve in the same timeframe as the curative rights issue. For completeness, please also find attached the latest compilation of GAC communications and advice on the topic of IGO protections up to October 2018 (from the Barcelona meeting). Consequent to the March 2017 facilitated discussions in Copenhagen on the topic of IGO protections, you may wish to note the following: * The Copenhagen Communique (March 2017) advised the ICANN Board to: I. Pursue implementation of (i) a permanent system of notification to IGOs regarding second-level registration of strings that match their acronyms in up to two languages and (ii) a parallel system of notification to registrants for a more limited time period, in line with both previous GAC advice and GNSO recommendations; II. Facilitate continued discussions in order to develop a resolution that will reflect (i) the fact that IGOs are in an objectively unique category of rights holders and (ii) a better understanding of relevant GAC Advice, particularly as it relates to IGO immunities recognized under international law as noted by IGO Legal Counsels; and III. Urge the Working Group for the ongoing PDP on IGO-INGO Access to Curative Rights Protection Mechanisms to take into account the GAC’s comments on the Initial Report. * The Johannesburg Communique (June 2017) expressed concern over the possibly divergent path that the Curative Rights PDP looked to be taking, and advised the Board that the GAC’s continued belief was that the appropriate second-level dispute resolution mechanism should: I. be modeled on, but separate from, the existing Uniform Dispute Resolution Policy (UDRP) II. provide standing based on IGOs’ status as public intergovernmental institutions, and III. respect IGOs’ jurisdictional status by facilitating appeals exclusively through arbitration. * The Abu Dhabi Communique (November 2017) contained the statement that the GAC: “remains open to working with the GNSO to try to find a mutually agreeable resolution to this issue [and] also recalls the values of openness, transparency and inclusion, and representativeness and process integrity, that are respectively enshrined in ICANN’s Bylaws and GNSO Operating Procedures … “ * The Panama Communique (June 2018) advised the ICANN Board to: “ … work with the GNSO and the GAC following the completion of the ongoing PDP on IGO-INGO access to curative rights protection mechanisms to ensure that GAC advice on protection of IGO acronyms, which includes the available “small group” proposal, is adequately taken into account also in any related Board decision”. * The Barcelona Communique (October 2018) advised the Board to: “facilitate a substantive, solutions-oriented dialogue between the GNSO and the GAC in an effort to resolve the longstanding issue of IGO protections, on which it reaffirms its previous advice, notably with respect to the creation of a curative mechanism and maintenance of temporary protections”. Finally, while not constituting formal GAC advice, the Kobe Communique (March 2019) contained a note that “during the Kobe Meeting the GAC has had fruitful exchanges with the GNSO Council regarding the possibility of restarting the PDP on curative protections, under conditions amenable to all interested parties, including IGOs and interested GAC members, with a view to achieving mutually acceptable results. At that meeting, the GAC indicated that there should be a timeline with a targeted date associated with such a course of action.” Best regards, Steve & Mary