JILT 1997 (2) - Shanthini Satyendra
Internet Domain Names - New Proposals
Information Session and Meeting of Signatories of the Generic Top Level Domain Memorandum of Understanding
29th April - 1st May 1997
This is a Conference Report published on 20 June 1997.
Citation: Satyendra S 'Internet Domain Names - New Proposals', Conference Report, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/confs/97_2dom/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/satyendra/>
'Every complex problem has a simple solution.... which does not work' remarked one of the members of the eleven strong International Ad Hoc Committee (IAHC) at the outset of the conference. Whether one agrees with this conclusion or not (and I do not) governance of the Domain Name Space (DNS) does raise complex issues.
The conference was hosted by the International Telecommunications Union (ITU) and focused on the proposals put forward by the IAHC to restructure the way domain names are assigned, registered and administered on the Internet. It culminated in the signing of a memorandum of understanding (MoU). The 150 delegates came from Europe, Japan, Africa, South East Asia and the U.S. and included representatives of telcos, government departments and private corporations.
The formal speeches were confined to the introductory session and the rest of the conference was dominated by panel sessions. The speakers in the introductory session were Dr Bruno Lanvin, world co-ordinator, United Nations Conference on Trade and Development, Dr Pekka Tarjanne, Secretary General of the ITU and Mr Don Heath, chairman of the IAHC. All three stressed that any model put forward should recognise and build on the fact that the Internet tradition is one of self-governance. Dr Pekka Tarjanne, Secretary General of the ITU developed this by bemoaning the fact that 'when the engineers of the 1980's gathered (in the ITU), they brought with them their friends who were lawyers.' He said that the resulting emphasis on the creation of legally binding agreements and prescriptive standards was time consuming and became increasingly difficult to sustain. He added, that 'the commercial interests in the telecommunications sector are now so strong that it is necessary to look for alternatives to binding agreements if the process of standards making is not to be left behind by the pace of technological change.'
He moved onto describe a 'new way of working together in multi-lateral organisations such as the ITU'. Essentially, groups with a common interest in resolving a problem (such as regulating the DNS) come together on a voluntary basis, put forward solutions and then let the market decide whether or not they got it right. He added that the chosen tool for this new era of 'voluntary multi-lateralism' is often a Memorandum of Understanding (MoU), or a set of voluntary principles. This is also the tool adopted by the IAHC. Before going into the substance of the IAHC's proposals it may help to first outline how the Internet is governed today and the shortcomings of this system which led to the formation of the IAHC.
2. The Background
Most people know that in its formative years the Internet was dominated by government, military and academic networks based in the U.S. The founders of the Internet set up private groups, managed in the main by engineers, to administer the DNS. They had no legal or political mandate and had informal decision making processes. The groups remain, some would say by historical accident, the guardians of the DNS. One of these groups, The Internet Assigned Names Authority (IANA) allocates the IP addresses which underlie the user-friendly mnemonic domain names.
Although, this system worked very well for the first two decades of the Internet, it now struggles to cope with the challenges of global Internet Commerce. Today the Internet has users from several jurisdictions and political systems. There is increasing commercialisation with the related legal, tax and financial consequences. Two new challenges created by this are disputes as to Intellectual Property Rights (famously domain name 'hijacking') and concerns about the allocation of the lucrative Top Level Domain names (TLDs). At present Network Solutions Inc. (NSI), a private corporation, operating under a contract from the U.S. National Science Foundation (NSF) has a monopoly on registering TLDs. This monopoly is the subject of anti-trust suits in the U.S. Again, NSI's domain name dispute policy has been criticised because, inter alia, it does not recognise common law rights, it gives preference to US registered trademarks and there is no appeals process. NSI's contract with NSF ends in 1998 and NSF has announced that it will not be renewed. Again, registries (such as the confusingly named 'Alternic') have recently formed which seek to set up an 'alternative' Internet with their own TLDs. This could exacerbate the existing problems of trademark/domain name clashes.
All this has led to concerns that the stability of the DNS may be undermined unless a frame work is found that can cope with these issues. The Internet Society (ISOC) and IANA, the current guardians of the Internet, formed the IAHC in October 1996 so that a suitable framework may be found. The IAHC's members are drawn from ISOC, IANA, ITU, World Intellectual Property Organisation (WIPO), US Federal Networking Council, International Trademark Association (INTA) and the Internet Architecture Board (IAB). Now to the proposals. The basic tenets of the IAHC's proposals are:
- the top level domains (ie: domains of the type '.com', '.edu' etc) are a public resource and subject to the public trust.
- competition is needed in the process of domain name registration.
- An administrative procedure is needed to deal with the issue of trademark/domain name clashes
The IAHC plan will establish a non-regulatory policy frame-work in the form of a Memorandum of Understanding (MoU) which the ITU will invite both the public and private sector to sign. The ITU is to be the depository for the MoU. The IAHC also re-defines the TLDs as 'Generic Top Level Domains (gTLDs)' in order to underline their generic nature and the fact that they belong to no-one.
The IAHC have also defined an additional set of seven gTLDS. Administration and management of the gTLDs will be by competing registrars, from seven regions in the world. They will function under a Council of Registrars (CORE) which will operate as a Swiss Non-Profit Organisation. Each registrar may register any or all of the gTLD's. They will set their own prices and market forces will judge whether these are reasonable. The registrars will sign a CORE MoU (in addition to the MoU). CORE will be responsible for providing common services among the registrars, in particular operating a shared database repository for each gTLD. The IAHC say that they will take over the existing TLD's (to include '.com') in 1998 when NSI's contract ends. NSI has however said that it considers it owns the Intellectual Property Rights in its databases. Clearly, this remains to be seen.
The management of the gTLD space will be by a small Policy Oversight Committee (POC) comprising members drawn from the constituent organisations of the IAHC and also from CORE. A larger Policy Advisory Board (PAB) comprised of all the signatories of the MoU will make recommendations to POC and CORE with regard to general policy and amendments to the MoU. However, changes to policy can only be enabled upon the agreement of ISOC and IANA. Thus the current guardians of the Internet will retain significant control of the DNS. The MoU also includes a policy with reference to trademarks that warrants a verbatim reproduction:'..a second level domain name in any of the CORE-gTLDs which is identical or closely similar to an alpha numeric string that, for the purposes of this policy, is deemed to be internationally known, and for which demonstrable intellectual property rights exist, may be held or used only by, or with the authorisation of, the owner of such demonstrable intellectual property rights. Appropriate consideration shall be given to possible use of such a second level domain name by a third party that, for the purposes this policy, is deemed to have sufficient rights.'
The MoU is careful to state that the Registrars will not be obliged to apply this policy themselves. That will be the responsibility of Administrative Challenge Panels (ACP's) that will be administered by WIPO arbitration and mediation centre. The composition of the panels is yet undecided but will not include WIPO representatives. The ACPs will only have jurisdiction over the gTLDs and not the ISO country domain names such as '.co.uk'. The MoU also states the ACP does not constitute a legal authority and only performs the administrative function of evaluating conformance of domain names with the above mentioned policy. As such it neither creates rules of International Law nor does it establish an International Court. Again, it does not preclude resort to national courts.
There will be a voluntary procedure which enables persons who wish to register domain names to publish these before registration so that objections may be raised at this stage. If they choose not to do this, it will be left to other domain name holders to challenge a name once it is registered. These challenges will be dealt with by the ACP. There will be a right of appeal to a yet unspecified panel.
The above is a summary of the main proposals. The text of the proposals can be found at <http://www.iahc.org/iahc-docs.html>. Contributors from the floor were positive about the IAHC's initiative, but many were concerned at the short period of time it took to finalise the proposals and the failure to consult more widely. The IAHC stated they preferred to implement the policies and not delay matters pending further consultation. Their clear position was that it was important to act now to preserve the stability of the DNS. Those who wished to change the proposals should sign the MoU and effect changes from within. At the end of the three day conference about 80 organisations had either signed the MoU or had declared their intent to do so.
The proposals do address some of the problems with the existing system of governance of TLDs. The proposed system is also more open that the system of governance in place today. However there are significant gaps. Two factors in particular raise concern.
First, one is still left with the problem that the IAHC does not have a legal or political mandate. Given the commercial, legal and political influence that comes with governance of the Internet, it is important that this be established.
Second, dealing with trademark issues even within the limited remit of the ACP will involve consideration of national Intellectual Property law (if only to verify if 'demonstrable' Intellectual Property rights exist for a given mark). This will inevitably raise the old problem that trademarks that co-exist in the terrestrial world (either because they apply to different classes or operate in different geographical locations) cannot co-exist on the Web.
One solution would be to abandon domain names altogether and simply treat the IP address for what it is - an address. Resources may then be focused on creating a 'Web Directory' which indexes organisations and people according to location and business sector. This will enable people to find a particular site using the familiar format of a directory, albeit one that is capable of far more sophisticated searches. Anyone that wants to be found will need to have an entry in the appropriate directory and complement this by advertising if necessary. This removes the whole problem of trademark and domain name clashes. This option is unpopular, in part because of the successful industry that already exists around the lucrative business of domain names.
In the final analysis, it would appear that the process the IAHC have put in motion may be more enduring than the details of their proposed solution. Given the far ranging implications, more wide spread consultation at a more formal level may be needed to create a system that works.
- IAHC Proposals - <http://www.iahc.org/iahc-docs.html>
- Federal Networking Council - <http://www.fnc.gov/>
- Internet Architecture Board (IAB) - <http://www.isi.edu/iab/>
- The Internet Assigned Names Authority (IANA) - <http://www.isi.edu/iana/>
- The Internet Society (ISOC) - <http://www.isoc.org/>
- International Telecommunications Union (ITU) - <http://www.itu.ch/>
- International Trademark Association (INTA) - <http://www.inta.org/>
- National Science Foundation (NSF) - <http://www.nsf.gov/>
- World Intellectual Property Organisation (WIPO) - <http://www.wipo.org/>