[cctlds-comments] WIPO ccTLD Best Practices

Organization: Name Committee (krnic)
Position: wipo study group

Comments on the WIPO best practice document for the prevention and
resolution of intellectual property disputes

The document seems to be drafted primarily servicing the need for
enforcing intellectual property rights. We argue for more cautious approach in dealing 
with registrants' contact details, especially individuals' personal information 
such as names, phone numbers, addresses and fax numbers. Also, local privacy 
laws and international privacy principles should be respected, although 
convenience for enforcing intellectual property rights is not totally 
unimportant. Details comments follow.

1. Domain Name Registration Agreement

The six provisions that are recommended to be included in the registration agreement may pose undue
burden on the registrant of a domain name. Especially the third provision that considers inaccurate
or unreliable registrant contact 
details or the registrant's failure to keep contact details up to date a 
material breach of the registration agreement and a basis for cancellation of 
the domain name registration may require a cctld administrator to impose 
greater punishment than that is recommended by local laws and rules. The fourth 
provision that coerces the registrant to agree to have her contact details be 
made publicly available conflicts with many local and international privacy 
laws and principles. The registrant does not have any realistic choice to have 
her contact details not available. The provisions recommended for the 
registration agreement seem to be based on the assumption that the registrant 
contact details should be made publicly available, real time. But!
 this assumption is only one (maybe the most liberal one) of many ways for 
dealing with registrant data. Substantial discussion on this issue should be 
made before suggesting provisions based on this assumption.

2. Collection and Availability of Registrant Contact Details

This policy reflects the concerns of intellectual property holders very
well, unfortunately at the expense of individuals' fundamental privacy rights. The 
collection list of contact details includes many kinds of private information, 
without any supporting argument for making it available except for the 
convenience of property holders. The postal address, voice telephone number, 
and facsimile number of an individual are the essence of personal information 
that should not be so easily released to the public worldwide. A bigger problem 
stems from the fact that the registrant does not have any option to refuse to 
make this information available, which is often provided in real space (as in 
the case of telephone directories). The distinction between individuals and 
corporations may have to be made in this regard, as the privacy concern for 
individuals is bigger than that for corporations. Organizations or associations 
may also have to be provided bigger privacy protection !
than commercial corporations. There are many options of collecting and 
releasing registrant data from making only the information whether the domain 
name is registered or not available without releasing any personal information, 
to collecting only the registrant's name, or name and e-mail address. Another 
solution may be to make proxy information such as registrar's contact 
information available and to require the registrar to comply to the request for 
releasing the information when disputes arise. The pros and cons of these 
different approaches should be fully discussed. 
       The current document presents the enforcement of intellectual property 
rights as the basis for making wide variety of personal data available on the 
Internet. However, privacy principles and regulations have equal or sometimes 
greater individual and social significance, so should not be easily compromised 
for commercial or business purposes. We hope to see in the document greater 
respect for privacy laws in local jurisdictions, especially in the case of 
closed cctlds. 
        We recognize the problem of bad faith registrants who attempt to 
frustrate enforcement procedures by providing inaccurate or unreliable contact 
details. However, rather than making the provision of inaccurate or unreliable 
information per se the material breach of the contract, we recommend to 
distinguish between real bad faith act and accidental provision of such 
information by investigating facts of the case.

3. Alternative Dispute Resolution (ADR)

The value of ADR may be different among different cctlds and according to local 
situations. The current document focuses on the importance and benefit of UDRP 
or UDRP-based dispute resolution systems and seems to underestimate particular 
issues and possible difficulty in applying the resolution policy that is 
originally developed for gtlds to cctlds. Further discussion seems to be called 
for.