General concerns or issues not
adequately addressed by the points below. Overview of all discussion areas including a listing of the number of replies in each.
(Click on a
link to make a comment pertaining to that item.)Prepared By: The Berkman Center for Internet
and Society at Harvard Law School
Ben Edelman, Larry Lessig, Molly Shaffer Van Houweling, Jonathan Zittrain
How these consensus points fit into the current working
drafts.
General concerns or issues not
adequately addressed by the points below.
Overview
of all discussion areas including a listing of the number of replies in each.
(Click on a link to make a comment pertaining to that item.)
| 1. Objectives / Principles | Legal analysis/language | Historical Comments |
| 1.1. The processes of the new entity shall be open and transparent, utilizing the Internet to this end to the fullest extent possible. | Geneva C Friday | |
| 1.2. The entity shall be limited to its enumerated powers. | Geneva A Saturday See also Singapore Day 2. | |
| 1.3. The entity shall strive to minimize barriers to entry. | Geneva A Saturday | |
| 1.4. The entity shall work to assure the stability of Internet. | Geneva A Saturday. Brussels reached consensus on a variety of specific tasks, goals, and responsibilities to assure stability, including independent maintence of the master root server; transparent non-discriminatory allocation of IP addresses; the establishment of global Internet directories; and consistent, flexible, market-oriented registration and dispute resolution policies. | |
| 1.5. The entity should recognize that individuals and organizations have concurrent and legitimate rights in names that are not based in trademark. | Reston E and Geneva F | |
| 1.6. Early consideration by the entity of the creation of appropriately structured new gTLDs, linked to the needs of the business and user community. | Brussels 2.7. Reston D Morning 4 had consensus that the Interim Board should not have the authority to create new gTLDs. | |
| 1.7. Competition in the registration market and early opening of the InterNIC registries to all qualified registrars. | Brussels 2.1 | |
| 1.8. Access to the name space should be open on a non-discriminatory basis. | Brussels 2.5 | |
| 1.9. The Entity shall be a not-for-profit organization. | Brussels 4.1. Reston D Morning 2 was "No portion of the operating profits of the entity should enure to any individual or entity." | |
| 1.10. Latin America and Caribbean is a region, together with North America, Europe and Asia-Pacific, with equal obligations and rights, based on the geographic, cultural and language singularities. | Consensus of Buenos Aires | |
| 2. Powers of the Entity | Legal analysis/language | Historical Comments |
| 2.1. The following consensus were achieved: Fees for the use of Protocols may not be established. It is proposed that different quotas be established according to the Organization or the Region to which it belongs. These differences in quotas will not award differentiated voting rights. Donations that may influence the fulfilling of the mission statements of the Newco may not be accepted. | Consensus of Buenos Aires | |
| 2.2. The Board of Directors always has the final decision. The initiative for proposing organizational activities can come both from the Board of Directors and from the specific Councils. | Consensus of Buenos Aires | |
| 2.3. The Board shall have the power to set policy regarding IP numbers through a bottom-up procedure where entity councils make proposals that the Board may accept or veto. | Geneva A Saturday | |
| 2.4. The Board shall have the power to set policies and procedures to maintain a coherent root zone system. | Geneva A Saturday | |
| 2.5. The Board shall have the power to set policies and procedures for delegating TLDs, including ccTLDs and gTLDs. | Geneva A Saturday No consensus was reached in Geneva Group A about the Board's ability to modify the current structure of ccTLDs, including their relation to ISO 3166. There was no consensus that the Board has the power to set policies to ensure the sovereignty or independence of the ISO 3166 ccTLDs. | |
| 2.6. Names Council Alternative Wordings: | ||
| 2.6.1. All sectors and individuals with legitimate interests in the Internet must be represented therein. The amount of members must be such as to enable it to operate well. No country must have an advantage over another in the resolution of conflicts between domain names within a given gTLD. The council will be empowered to establish policies and general procedures to be fulfilled by the TLDs (gTLDs and ccTLDs). In case of conflicts over the administration rights of a ccTLD, the Names Council will propose resolution mechanisms. The specific norms of administration of each ccTLD will be determined in each jurisdiction following upon consensus of users and stakeholders in the Internet. The Names Council will establish criteria to define the concept of jurisdiction. | Consensus of Buenos Aires | |
| 2.6.2. The Names Council will handle trademark/domain name interactions; set minimum standards for the contact data required for domain name registrations; consider standards of privacy in relation to registration data; consider issues relating to the protection of the new entity from liability based on Newco recommendations/decisions; make policy recommendations. | Reston E (Note that corresponding Reston and Geneva Working Groups gave different priorities to the Names Council.) | |
| 2.6.3. All gTLDs to be operated by shared not-for-profit registries on a cost recovery basis. Restoration of the InterNIC registries to a not-for-profit operation on the basis of the announced agreement between the US Government and NSI. Early consideration by the new entity of the creation of new gTLDs. | Brussels 2.3 | |
| 2.6.4. The Names Council will recommend new gTLDs and gTLD policies; will make points of advice and recommendations to the Board for all TLD matters; will provide a forum for discussion among gTLD and ccTLD registries and registrars, and a forum for dispute resolution between and among them; will recommend general and specific conditions for operation and management of TLDs, existing or new. | Geneva E (several consensus points combined) (Note: these items were conclusions of the Geneva Names Council Group; they may be inconsistent with the more general conclusions of Geneva Group A.) | |
| 2.7. The Board shall have the power to set policies and procedures to assign technical parameters. | Geneva A Saturday | |
| 2.8. The Board shall have the power to set technical policies and procedures including the coordination of the Internet domain name system and the oversight of registrars and registries. | Geneva A Saturday Except for the consensus expressed elsewhere in this statement, there was no further consensus reached in Geneva Group A about the scope of the Board's ability to determine policies with respect to TLDs. There was no further consensus reached in Geneva Group A about the Board's power with respect to the management of any specific TLD. There was no consensus reached in Geneva Group A about the Board's power to consider uniform standards for the stable operation of TLDs. | |
| 2.9. The entity shall have the power to set policies and procedures to determine its own organizational structure and finances. | Geneva A Saturday. No consensus was reached in Geneva Group A about whether this power shall be exercised by the Board or by the members. Brussels 1.3 agreed that the entity should use fair and transparent financial mechanisms to raise its funding. | |
| 3. Structure of the Entity | Legal analysis/language | Historical Comments |
| 3.1. The Entity shall have councils with their supporting organizations. | Geneva A Saturday. Brussels 1.2 noted that existing organizations should have significant levels of participation. Singapore Day 2 noted that councils should be part of one legal entity. | |
| 3.2. IETF should be the supporting organization that appoints the Protocol Council. It is expected that the IETF would be likely to appoint the IAB as the Protocol Council. | Reston D Afternoon 1 and Geneva D 1,2 Protocol council also discussed at Singapore Day 3, working group and plenary. LA & C Consensus to support the proposals of previous meetings, sustaining this council through the participation of IETF, IAB, ETSI. Consensus to support the proposals of previous meetings, sustaining this council through the participation of IETF, IAB, ETSI. Consensus of Buenos Aires | |
| 3.3. There will be a Names Council. The Names Council's powers will be limited consistent with Board powers. The Names Council will have the non-exclusive power to nominate Board members. The Names Council will propose best practices for registrars. The names council will exercise all of its functions with respect to specific registries, consonant with the business practices and law of the countries of the registries. | Geneva E (Note: names council functions in relation to TLDs described in "Powers" section above. Note also that Reston Group E gave the Names Council a different set of priorities, see 2.4.alt1 above.) Names council also discussed at Singapore Day 3, working group and plenary. Alternative council model presented in Singapore working group. | |
| 3.4. The Entity shall have a Board. | Geneva A Saturday | |
| 3.5. Decisions about technical policies must be approved by a relevant council prior to the Board's decision to accept or reject. (Strong support but not full consensus.) | Geneva A Saturday, Geneva D 8,10, and Geneva F 6. A similar but less stringent system was suggested by Reston E 6. Relationship between Board and Councils also discussed at Singapore Day 2; in particular, role of councils and power of board. | |
| 3.6. The Board may propose matters to be considered by the councils. | Brussels, Geneva A Saturday, and Geneva D 9 | |
| 3.7. The Entity shall have a Membership. Membership should be broad and include both business and consumer representatives. | Geneva B 1 Brussels 1.1 See also Singapore Day 2. | |
| 3.8. Members shall elect the Board. | Geneva B 4.a | |
| 3.9. Members shall have the non-exclusive right to nominate Board candidates. | Geneva B 3.b. Reston D Afternoon 3 noted that some members of the board should be appointed by broad-based groups rather than by the Councils. | |
| 3.10. Members may vote to remove Board members. | Geneva B 4.e | |
| 3.11. There shall be two different processes for the nomination and the selection of the Board members. | Reston D Morning 3 | |
| 3.12. The Board of Directors must be integrated in such a manner as to ensure the representativity of regions, interests and activity areas, and the regions must have significant representation therein. Election procedures must be designed to preclude domination by any specific stakeholder group. | Consensus of Buenos Aires | |
| 3.13. There was consensus that the Entity should have, as primary members, organizations that represent the interests of sectors, and that the delegation of voting rights (proxy) be forbidden in order to avoid supremacies. There was favourable opinion that individuals be members, but not until precise mechanisms be established regarding their admision and representativity. | Consensus of Buenos Aires | |
| 3.14. The governments will not participate as such within the Newco, except through their organizations related to activities in the Internet. | Consensus of Buenos Aires | |
| 3.15. Address/Numbers Council (Alternative Wordings) | ||
| 3.15.1. The regional address registries will be on the Address Council. There was consensus that there should be a process by which the Board can extend the Address Council to include bodies other than RIRs. New regional registries should be represented on the Address Council. The Board of the IANA will have the right to exclude members of the Address Council if they don't meet IANA's openness requirements. | Geneva D 3,4,5 Address council also discussed at Singapore Day 3, working group and plenary. | |
| 3.15.2. The Numbers Council will be exclusively made up by all the RIRs, current and future, and these must ensure the participation of the various Internet stakeholders within each of them. It was expressly mentioned that mechanisms were absent allowing for the participation of the region stakeholders in ARIN. | Consensus of Buenos Aires | |
| 4. Entity Responsibilities | Legal analysis/language | Historical Comments |
| 4.1. The new entity should cooperate with TLD registries to form databases of up-to-date registration and contact information for all SLDs. | Geneva F | |
| 4.2. The entity should encourage the development of various rapid alternative dispute resolution mechanisms. | Reston E and Geneva F. Brussels noted that an effective dispute resolution mechanism needs to be in place prior to the introduction of new gTLDs and also that a uniform international policy should apply to all gTLDs. | |
| 4.3. The entity itself does not resolve trademark / domain name disputes. | Reston E and Geneva F | |
| 4.4. The need to preserve transparency in the management of Newco is stressed. To collaborate in this objective, an appeal instance for interested parties should be created, for those cases where it is found that normal mechanisms are unsatisfatory, similar to the functions of an Ombudsman, who has a free hand to act, independent from the Board of Directors. | Consensus of Buenos Aires | |
| 5. The Interim Board | Legal analysis/language | Historical Comments |
| 5.1. There will be an Interim Board. | Geneva C Friday and Reston D Morning 1 | |
| 5.2. The Interim Board will establish the new Entity. | Geneva C Saturday | |
| 5.3. The Interim Board will validate the Membership. | Geneva C Saturday | |
| 5.4. The Interim Board will validate the election process. | Geneva C Saturday | |
| 5.5. The Interim Board will oversee the Election of the Initial Board. | Geneva C Saturday and Reston D Morning 1 | |
| 5.6. Termination of the Interim Board | ||
| 5.6.1. Six Month target | Geneva C Saturday | |
| 5.6.2. Extension Possible | Geneva C Saturday | |
| 5.6.3. No Later than 30 September 2000 | Geneva C Saturday | |
| 5.7. The Initial Board should be structured such that all members are not eligible for the final Board for a specific period of time or terms, and that the Initial Board should be phased out gradually to guarantee continuity. | Brussels 4.2 | |
| 5.8. In view of the declaration proclaiming a LA&C region (see 1), ample participation in the formation of the Interim Board will be sought. Taking into consideration the short lead time left for the formation of this Board, consensus is reached regarding the fact that this Region can contribute members with required professional profiles, be they legal, business or technical, to the Interim Board. | Consensus of Buenos Aires | |
| 6. Recurring Issues | Legal analysis/language | Historical Comments |
| 6.1. Top-down vs. bottom-up relationship between Board/Councils/Membership | ||
| 6.2. Centralized vs. decentralized relationship between Entity and registries | ||
| 6.3. Narrowly prescribed Board powers vs. Board discretion re powers | Various incl Reston D Morning 1 (Sentence 2) | |
| 6.4. Degree of Membership involvement | See Geneva B | |
| 6.5. Mechanics of membership/representation | See Section 3 | |
| 6.6. Funding/ownership structure | Discussed at Singapore Day 2. | |
| 6.7. Non-profit vs. other corporate structure, implications for liability/accountability | Addressed in detail in Geneva Legal Session and mentioned in various sessions including Brussels 4.1. | |
| 6.8. Selection of Interim Board | See 3.10, 5.7. See also Brussels 4.6 Three Models. | |
| 6.9. Propriety of differential treatment for gTLDs and ccTLDs | Brussels 3.13 Singapore Day 3. | |
| 6.10. Role of councils in Board nomination/election | See Brussels 4.6 Three Models. | |
| 6.11. Whether a supermajority of the Board should be required to change constitution | Identified as item for further consideration by Geneva A Saturday. | |
| 6.12. Whether the entity should have the power to change the location of the entity, as agreed by the ccTLD BoF on 7/23 | Identified as item for further consideration by Geneva A Saturday. | |
| 6.13. How to minimize the significance of the laws of the jurisdiction in which the entity sits relative to other international legal regimes | Identified as item for further consideration by Geneva A Saturday. | |
| 6.14. Whether the entity should consider the relationship of Internet telephony to its powers and duties | Identified as item for further consideration by Geneva A Saturday. | |
| 6.15. Whether the entity should consider issues of security, privacy, free expression, or other issues of human rights | Identified as item for further consideration by Geneva A Saturday. Reston E reached consensus that the Domain Names Council should set minimum standards for contact data in registration records and also consider standards of privacy in relation to such data. | |
| 6.16. Whether the entity should adopt principles about which interests -- commerce, non-commerce, etc. -- should be paramount | Identified as item for further consideration by Geneva A Saturday. | |
| 6.17. Dispute Resolution | ||
| 6.17.1. Which dispute resolution mechanisms the Board should adopt | Lack of consensus reported by Geneva A Saturday. | |
| 6.17.2. Whether the Board should have the power to set dispute resolution mechanisms at all | Lack of consensus reported by Geneva A Saturday. Reston E reached consensus that the Names Council should make policy recommendations to the Board in regard to domain name disputes. | |
| 6.17.3. The issues that dispute resolution procedures would cover (for example, disputes between parties versus disputes between a party and the entity) | Lack of consensus reported by Geneva A Saturday. | |
| 6.17.4. Whether the entity may develop uniform dispute avoidance / resolution procedures for use by TLD registries | Lack of consensus reported by Geneva F. | |
| 6.17.5. New entity should gather and disseminate general trend information regarding domain name trademark disputes +(involving cyber-pirates and trademark owners) | Lack of consensus reported by Geneva F. Reston E had consensus that gathering data on cyberpiracy should be one of the functions of the new entity because they thought more data was necessary to determine the scope of the problem and the most effective methods of combating it. We were recommending that data be collected for the purpose of analyzing the problem, not just for exposing conflicts. | |
| 6.17.6. What distinguishes cyber-pirates from legitimate domain name resellers? Should entity be involved in this kind of decision? | Identified as item for further consideration by Geneva F. | |
| 6.17.7. Distinction between dispute policy and dispute resolution policy? | Identified as item for further consideration by Geneva F. | |
| 6.17.8. WIPO process. Consider WIPO recommendations . | Identified as item for further consideration by Geneva F. | |
| 6.17.9. Process exclusively limited to trademark issues, or to other issues also? | Identified as item for further consideration by Geneva F. | |
| 6.17.10. Dispute avoidance | Identified as item for further consideration by Geneva F. | |
| 6.18. Whether the Board should have the power to adopt "best practices" for registrars | Lack of consensus reported by Geneva A Saturday. | |
| 6.19. Creation of additional gTLDs diminishes trademark infringement problem? | Identified as item for further consideration by Geneva F. | |
| 6.19.1. Should there be a statement in founding document about taking trademark concerns into consideration (effect on consumers and trademark holders)? | Identified as item for further consideration by Geneva F. | |
| 6.19.2. Internet is a new context in which traditional IP principles to be reexamined? | Identified as item for further consideration by Geneva F. | |
| 6.19.3. No one nation's laws should govern all domain name trademark disputes | Identified as item for further consideration by Geneva F. | |
| 6.19.4. Mandate uniform standards across TLDs re trademarks? | Identified as item for further consideration by Geneva F. | |
| 6.20. Role of governments in entity. | Discussed at Singapore Day 2. | |
| 6.21. Specific concerns of developing countries. | Discussed at Singapore Day 2. | |
| 6.22. State of incorporation. | Discussed at Singapore Day 2. | |
| 6.23. Importance of regional representation. | Discussed at Singapore Day 3. |
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