WIPO Internet Domain Name Process

Transcript - part 1: Washington, DC Regional Consultation

Georgetown University
October 1, 1998

Professor Ryan: ............. and the Government, the U.S. Government thought that it would be a good thing to make it possible to move data and information quickly, easily, expeditiously, from one place to another, so, that was the original idea behind what became the Internet. Over the last twenty years or so, the Internet has been developing gradually and then, now, at a very rapid pace in the last couple of years and it’s role in this world economy is becoming considerable. It now appears as though the Internet is going to be playing a very important role as a market place and so the role of the electronic market place has become an issue of tremendous importance for people in the business community, for Government policy makers and for others who are interested in the continuing evolution of the world economy and providing goods and services to people. The World Intellectual Property Organization has been, for the last couple of years, playing an important leadership role in looking at the Internet and specifically the issue of Internet domain names. What we know is markets operate best when appropriate institutions are put in place to smooth transactions, to reduce those costs of the transaction and so the World Intellectual Property Organization has been playing a leadership role, in trying to do just that and to helping establish a system for domain names and so they have been holding a series of regional consultations around the world. The one today here in Washington is the third one, and so, Georgetown is very, very pleased to be hosting this, the third of the regional consultations that WIPO is hosting and what I would like to do at this point then is to ask Francis Gurry, who is the Legal Counsel at the World Intellectual Property Organization to open the event.

Chairperson (Francis Gurry, Legal Counsel of WIPO): thank you Professor Ryan. Good morning Ladies and Gentlemen. First of all, let me welcome you here on behalf of WIPO and thank Professor Ryan and Georgetown University and its Faculty of Law in particular for hosting this hearing today, we are extremely grateful to Georgetown and to Professor Ryan in particular for the considerable work that he has put into the organization of this hearing. It is, as he mentioned, the third such hearing, we held in Brussels on Tuesday of this week which was well attended and we held one in San Francisco last week which was also a successful hearing. Let me thank all of you also for coming this morning, we are very grateful for your support for the process and let me thank, in particular, the United States Government, a number of whose officials are with us this morning. As you all know, historically, the immediate genesis of the WIPO process was a request that was addressed to WIPO in the White Paper that was published in June this year. That request said that the United States Government would seek international support for WIPO to initiate this international process and I am pleased also to report that that support has been expressed recently in the meeting of the Member States of WIPO when this domain name process, the undertaking of this domain name process was approved by our Member States.

Let me say a few words, if I may, very briefly, about the process itself. It is a somewhat new process for WIPO. It is a new process in several respects. First of all, with the modalities that we are using for the conduct of this process, it is one that is largely being conducted with web-based or Internet-based consultations, which is a different form of consultations really to those that WIPO as an institution is used to. Up until now we have operated almost exclusively on the basis of physical meetings and it is, in this respect, something of an experiment for us. To date the website that we have put in place has proven to be a very successful vehicle, we have over 575 persons now registered to receive mailings through the website, those coming from over 50 countries, which satisfies one of the aspects of the process, one of the criteria set down for the process, namely that it be an international process. It is also an unusual process for WIPO insofar as it is a process that is carried out direct with the private sector or the interested parties, and not direct with our Member States although, as I mentioned, our Member States have approved the undertaking of the process. We understand that this special aspect of the process is due, in the first place, to the nature of the subject matter that is being addressed, there are questions that we are asked to address in such a way as to develop practical mechanisms that may provide workable and efficient solutions rather than to undertake a process which is necessarily going to set any mutable framework of norms for the ensuing 20, 30 or 50 years. It is a process that we are undertaking direct with the private sector also I think because of the inherent nature of the medium with which we are dealing, namely, the Internet and the fact, the historical fact, that the domain name system is a privately administered system; is, or has been, a privately administered system as opposed to the other classes of intellectual property rights with which WIPO is concerned which are all administered by public state authorities. So, in some respects we see this process as something of a prototype, or with the potential of being a prototype for the sort of questions that are increasingly going to arise as a result of the intersection of the real world and the institutions that have been developed on the basis of the past experience of the real world and what is rapidly becoming the very intensively active space of cyber-space. There are a number of features of this particular question which we feel will increasingly occur namely, the speed with which the problem has arisen, first of all, the consequent urgency of finding a solution and the very short time frame or the speed with which a response is needed in order for that response to be a relevant one.

Let me say a few words also about the principles that we feel are fundamental to the way in which the process has been going forward and should go forward in the future and there are in particular four such principles that I would like to mention.

The first is that we understand by an international process that we should seek to attract the widest possible geographical participation in the process. The principle vehicle for the process, the website that we have put in place, obviously has certain limitations in this respect since there is a very differential access to the Internet throughout the world and it is for this reason, amongst others, that we are conducting a series of regional consultations now and will repeat the exercise early next year at a later stage.

A second principle is that we feel that the process, even though concerned just with intellectual property questions, should attract the widest possible sectoral participation i.e. that it is very important that the voices of all groups or sectors that are concerned with the use, development and exploitation of the Internet be heard in relation to these questions even though the questions are somewhat discrete.

A third principle is that we feel that the process must be an open one in the sense that we, as an institution, do not have any a priori positions about the recommendations that will emerge from the process. There are certain issues that have to be addressed but the solutions will have to emerge in the course of the process.

A fourth principle is that the aim, or the ultimate objective of the process, is to obtain consensus around certain recommendations that will be made on the issues that need to be addressed. And, by consensus, we understand that it is going to be extremely difficult to find a set of recommendations that satisfy any particular sector’s interests 100%, we hope, however, that we will be able to find a set of recommendations that every sector can live with, that no sector will feel it is necessary to veto, or to speak entirely against.

A final principle is that, in the course of the process, WIPO will be assisted, and has been assisted, extremely ably to date, by a Panel of Experts. Let me take this opportunity to introduce those experts who are present here today. We have, if I may go from the far left of the table, Mr. Philip Sbarbaro, from Hanson & Molloy, Philip Sbarbaro is known I am sure to all of you, he has been the Chief Outside Litigation Counsel for Network Solution and in that capacity has a wealth of experience which is rarely replicated anywhere. Next to Mr. Sbarbaro is Mr. Partridge, a lawyer from Chicago, Mr. Partridge sits on a number of committees associated with American Intellectual Property Law Association and also with the American Bar Association. Next to Mr. Partridge is Mr. Don Heath, who is, of course, as you all know, the President of the Internet Society and who is familiar with the voices of over 8,000 members of that society scattered throughout the world. One of the principle vehicles or fora of the Internet, of course. Then we have, two from my left, Mr. Frederick Mostert, Mr. Frederick Mostert is the Legal Counsel of Richmont, he is the President of INTA, the International Trademark Association. Next to Mr. Mostert is Mr. Ken Fockler, who is one of the pioneers of the Internet in Canada and he is the former, well, he does not lose the status of being the founder, he remains the founder but a former Chair and President of the Canadian Association of Internet Service Providers. We will be joined in the course of the day by two other of our experts, namely, Hisham El Sherif, who is the Chairman of the Regional Information Technology & Software Engineering Center in Egypt and Professor Michael Froomkin who was unable to catch a plane from Miami last night but who is coming right at the moment and will be joining us later in the morning. Professor Froomkin is an expert, he is a professor at the University of Miami School of Law, an expert on civil liberties, freedom of speech and, in a former incarnation, was also a arbitration expert. May I also introduce two of my colleagues who are present this morning, immediately behind me, hiding, is Christopher Gibson, who is the Head of our Electronic Commerce Section, in the Office of Legal and Organization Affairs and who is vitally concerned with all of the aspects of this process. There is also Mr. Paul Salmon who appears not to be in the room, he is at the table outside, I am sorry, receiving those who are coming, Paul Salmon is in charge of the WIPO’s office in New York, one of the things that is being done by the new Director General in the time since he has been in office is to reinforce the strength of the liaison office that we had in New York City where we have a number of professionals now who are at your disposal also in this country.

If I may say something, very briefly, about the stages of the process. I am sure you are all familiar with them, but let me go through them, very quickly. The terms of reference that were set for WIPO for this process, in the White Paper, as you all know, there were three. To develop recommendations on a uniform set of dispute resolution procedures, secondly, to recommend a procedure for the protection or develop recommendations on a procedure for the protection of well-known marks, famous marks and thirdly, to evaluate the effects on intellectual property rights of adding new generic top level domains. The first stage that we undertook was therefore to elaborate those terms of reference and to issue a request for comments on the elaborated or extended terms of reference on the procedures that we intended to follow in the process and on the timetable. That stage is now closed and as a result of it we have a second request for comments on the issues themselves that are detailed in the terms of reference. These hearings are being held on those issues. After this stage closes of receipt of comments on the issues in the second request for comments, it is intended that we draft a set of interim recommendations or a draft report which would form the subject in turn for a third request for comments which will be put out in December of this year and will be the subject of further regional consultations and hearings as well as web-based consultations. With the ultimate aim of being able to publish a final set of recommendations at the beginning of March next year.

The practical arrangements for today, I will go through briefly. First, the ultimate purpose is that this is a hearing, so we, as WIPO, or the experts advising WIPO, will be doing relatively little talking. The purpose is for us to listen to your views today and to develop some discussion on the basis of your presentations. We would ask, since there are a number of speakers, that each speaker speak for approximately fifteen minutes and that we see if we can have a further period of ten or fifteen minutes with that particular speaker during which time there can be some question of the speakers, questions of the experts about issues raised by the speaker. Observations by anyone present. We would ask the speakers to speak from here, if possible, there are microphones in the corridors which can be used and finally, we are publishing a transcript, this meeting is being recorded and we intend to publish on our website a transcript of the hearings that take place around the world and they will be made available, we hope, over the course of the next few weeks. If I may ask my colleague, Chris Gibson, to let us know how we are going to proceed with the speakers and then we can commence, thank you.

Mr. Chris Gibson (Head of Electronic Commerce Section): Thank you. We have, from the registrations that came through our website, as well as those that have arrived this morning and indicated that they would like to present statements, a number of speakers who are here now and all in all we have, I think, about ten to twelve, at this moment, who have indicated they would like to make a presentation. As Francis mentioned the way this particular dynamic would work is that the presentation can come from this microphone and after that presentation those in the audience or from the Expert Panel that would like to ask questions of a speaker may do so for an additional number of minutes. I see that we have here, for example, right now, we have Sarah Deutsch, who is the Intellectual Property Counsel of Bell Atlantic so I would ask Sarah to come up first. Secondly, we have Bob Connelly of the Counsel of Registrars, who is here and I would ask him to come up then second. Third, we have Mr. Scott Evans of the Adams Law Firm and I would ask you to speak. Fourth, we have Harold Feld, of the Domain Name Rights Coalition, we would ask you then to be available to speak fourth and then, fifth, we have Susan Anthony of MCI, and we would ask you to be on the agenda for number five and then afterwards, or later, I will address additional slots as we go through the day. So, we can start with Sarah if you are ready.