[WSIS CS-Plenary] IPR : Strategic priorities for WGIG

[Jonathan Cave]

Just a quick comment to correct a too-hasty use of acronyms on my part.

At 03:20 29/01/2005, Enrique A. Chaparro wrote:
>On Fri, 28 Jan 2005 09:05:22 +0000
>Jonathan Cave <j.a.k.cave at warwick.ac.uk> wrote:
>
>JC> I endorse the position of Vittorio and Milton Mueller regarding IPR.
>JC>
>JC> For one thing, domain names are IP - they are encloseable or ownable
>JC> bits of intangible property of substantial commercial (and other)
>JC> value.
>[...snip...]
>
>Let's try to start from the beginning: What is Internet? A network 
>carrying (as reliably as possible) IP packets from a source address to a 
>destination address. Period. So, Internet governance should be limited to 
>the minimal set necessary to guarantee such reliable transport.
>
>In other words, ``The Internet, a loosely-organized international 
>collaboration of autonomous, interconnected networks, supports 
>host-to-host communication through voluntary adherence to open protocols 
>and procedures defined by Internet Standards.'' (RFC-2026).
>
>Consistently with that principle of minimal regulation, I believe that 
>certain aspects of the Internet may require some form of `governance':
>1) A technical regulations system (standards) conforming the `glue' that 
>ensures the interoperability of the network as a whole;
>2) An IP adresses assignment system operating in a consistent way along 
>the IP packet-routing systems;
>3) A traffic exchange system between carriers/ISPs providing to the end 
>users a reasonable assurance that the trafic flows will get the specified 
>levels of service; and
>4) A system for assignment of protocol numbers and other miscellaneous 
>identifiers.
>
>In the current state of affairs, i.e., taking into consideration the 
>existence of a strong hierachical domain name system depending on the root 
>servers, other two aspects might require `governance':
>5) The responsible and publicly accountable supervision of the DNS root 
>servers set;
>6) The management of the DNS root zone file, including its preparation and 
>dissemination among the root servers, and the development and application 
>of polices for the incorporation of new TLDs to the root zone.
>
>A good number of the issues raised here belong to "real world" governance, 
>and even if I completely agree with the posture that they deserve an open 
>discussion with broad participation, I do not agree with the idea that 
>those issues belong to the field of "Internet governance".

A quick remark - in telecom regulation, the debate between the engineers - 
who favour only technical regulation - and the economists - who look at 
structure and conduct as determinants of performance - is long-standing and 
not to be resolved here. But the distinction between 'real world' 
governance of conduct relating to the Internet and Internet governance 
escapes me, I'm afraid.

>Getting deep into issues that do not belong to the strict field of IG is 
>prone to cause more harm than good. Let me take one of your assertions as 
>an example:
>If domain names are "IP", as you hold: What _kind_ of IP are they? 
>Trademarks? Copyrights? Geographical denominations? Mask work?

Here's the bad acronym use. 'IP' could mean 'industrial property' (all the 
examples mentioned except copyright) or 'intellectual property.' I meant 
the latter. More: I meant to indicate that domain names are intellectual 
property (they are intangible intellectual products that can be owned and 
transferred) independently of how the property rights are enshrined in law. 
It seems to me (and, it seems to you) a vital part of the discussion to 
consider how they should be defined and protected - and what the likely 
impact of treating them in different ways might be. I think we also agree - 
as I tried very hard to argue - that matching these things to existing bits 
of law is a pointless exercise. Unless we are prepared to ask why these 
things should be protected we are unlikely to devise protection that is 
worthwhile. For instance...

>  Because if they are trademarks, then they should have to be assigned 
> forever, and all the current domain registration procedures would need to 
> be changed. And what about names that some national legislations admit to 
> be appropriated as trademarks, while other legislations don't (as common 
> nouns)?

I believe that in most jurisdictions trademarks last 10 years in the first 
instance. But I agree that trademark is a blunt instrument. My point is 
simpler: none of the existing legal instruments meets the combined 
challenge of technology and (economic) conduct. The purely administrative 
approach has failed the test of neutrality. Some form of rethink is needed. 
I remember when WIPO and WTO were arguing this issue in relation to 
copyright on the Internet. A strong faction felt that the solution lay in 
interpretation of existing law - an equally strong faction felt that a 
rethink was needed.

>(BTW, the domain names/trademarks paradox is akin to other one: do ccTLDs 
>represent _country names_? :)

Good point, esp. because (at least from the UK perspective) my 
understanding (and I am not a lawyer) it is not possible to trademark:
    * signs that cannot be graphically represented or are not 'capable of 
distinguishing';
    * trade marks that aren't distinctive;
    * trade marks that only indicate the kind, quality, value, geography or 
other such characteristics of goods or services;
    * trade marks that are recognised signs which are customary in trade; 
and specially protected emblems.
Also - and this relates to the side-discussion on spam insofar as it 
includes overt forms of 'phishing' like cybersquatting - certain kinds of 
marks may be relatively refused registration, including those identical or 
similar to earlier marks registered for identical or similar goods or 
services which are likely to confuse the public.

But my main point was to stress that I regard domain names as intellectual 
property (with lower-case 'i' and 'p') and that I think behaviour within 
technical regulation and/or 'pure' administration has consequences that 
critically affect internet governance (with upper- or lower-case 'I' and 'G').

rest snipped for brevity....

Cheers,

Jonathan

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