The ICANN Bylaws currently provide for the recognition of seven self-organized constituency groups within Domain Names Supporting Organization.
Organizers of the Trademark, Intellectual Property and Anti-Counterfeiting Constituency proposals will hold a public meeting in Berlin on May 25 from 8:30 - 12:00 at the Hotel Adlon, Konferenzraum I, to discuss the formation of the constituency. The proposals are presented side-by-side to facilitate comparison. This page is an unsolicited, independent, unbiased, pro-bono effort.
See http://www.icann.org/dnso/constituency_groups.html for information about the constituency formation process,
New York Document: Organizational Document of the Intellectual Property Constituency of the DNSO
We are pleased to present to the Board of ICANN an application for accreditation as the Intellectual Property Constituency (IPC) of the DNSO. This application as set forth below is entitled the "New York Document" and replaces the "Wellington" and "Toronto" documents. This application is supported by the organizations set out in the attached list.
The "New York Document", which contains the substance of the application, was arrived at through a consultative process including face-to-face meetings which took place in Toronto, Ontario, Canada on March 18, 1999, Wellington, New Zealand on April 12-13, and New York City, New York, U.S.A. on May 4-5. The current members of the IPC are continuing to actively contact other IP organizations and individuals to encourage them to participate in this process. It is anticipated that more signatories to this application will be in place when the formal application for accreditation of the IPC is presented to the ICANN Board in Berlin on May 25-26 next.
Subject to accreditation by the ICANN Board, the IPC is ready to begin its operations. There are operational guidelines in place; an elected slate of Interim officers and Interim representatives to the Names Council ready to begin their work.
If there are any preliminary questions or comments, please communicate them to the Secretary of the Interim IPCC, Joan McGivern [212-621-6204, firstname.lastname@example.org] and/or to the Interim President, Jonathan Cohen [613-232-5300, email@example.com].
The Interim officers of the IPC seeking approval would welcome an opportunity to meet with as many of the ICANN Board members as are available.
We look forward to working with the ICANN Board in providing advice on intellectual property issues.
Yours very truly,
Jonathan Cohen, on behalf of the applicants to form the IPC
Constituency Application - Trademark, Intellectual Property and Anti-Counterfeiting Interests
As requested in the note posted on the ICANN web site, what follows is a constituency proposal prepared on the dnso-ip mailing list which we ask the ICANN Board to consider at its upcoming meeting in Berlin.
The proposal below is intended to address creation of the "trademark, intellectual property and anti-counterfeiting interest" group contemplated by Section VI-B (3) (b) (7) of the ICANN Bylaws.
Trademark, Intellectual Property and Anti-Counterfeiting Interests (Indigenous) Intellectual Property Constituency
The Tribal Law mailing list members and a significant number of professionals, cultural institutional and governmental representatives have begun formal discussions on how to structure the Trademark, Intellectual Property and Anti-Counterfeiting Interests Constituency of the Domain Names Supporting Organization.
We welcome the participation and involvement of others with an interest in the problems and opportunities presented by the Internet as a means of cultural transmission between peoples, and the challenge of making the promise of "fair and equitable sharing of the benefits arising out of the utilization of [knowledge] resources within the Internet" a reality.
An initial proposal has been developed and it is now posted for comment at http://www.world.std.com/~iipc.
To participate in this constituency organizing effort, please contact either:
James Casey of Morrison & Foerster (firstname.lastname@example.org),
Robert P.W. Gough of the Intertribal Council On Utility Policy(email@example.com),
Eric Brunner (firstname.lastname@example.org) of the Triballaw mailing list.
ICANN VI-B(3)(b)(7) Constituency Application
The question of indigenous rights and the use of cultural heritage on the Internet is long overdue for consideration. The formation and implementation of the ICANN and its supporting organizations and advisory groups represents an excellent opportunity for bringing the concerns of indigenous peoples to light and for ensuring that policy and implementation efforts adequately address indigenous rights, while bringing policies other than "first come, only served" to the allocation of resources in the Internet namespace.
This proposal for the (Indigenous) Intellectual Property Constituency (IIPC) will provide a vehicle for this goal, consistent with the fundamental goal of providing a constituency vehicle for all trademark, intellectual property and anti-counterfeiting interests in the Internet Communities.
A. This document is intended to set out a framework for the structure and procedural rules of the Intellectual Property Constituency ("IPC") of the Domain Name Supporting Organization ("DNSO"). The drafters of this document include members of many of the major international IP organizations which collectively represent tens of thousands of IP right holders, IP practitioners, business owners and domain name holders around the world and who recognize the need to reach out to other such entities and persons who share these interests to participate in the further refinement of this document.
B. The organizations submitting this document seeking recognition and accreditation as the IPC of the DNSO ask the ICANN Board to be aware that:
1. Since the Singapore meeting, efforts to form the IPC have met with broad based, global support from a number of leading international and regional organizations;
2. Although many organizations were invited, time, distance, and other constraints only permitted the organizations submitting this document to presently commit;
3. However, these organizations intend to diligently work to expand the IPC's membership so that it will be as representative and diverse as possible;
4. To that end, an Interim set of officers IPC has been elected whose express mandate is:
C. The Toronto meeting, held on March 18, was organized by FICPI (Federation Internationale des Conseils en Propriete Industrielle) to attract as many as possible IP organizations, and other interested parties to initiate the process mandated by the ICANN Board at its meeting in Singapore in early March, when it advised the international IP community to begin work immediately on the organization of an IP Constituency for the DNSO. The goal of that meeting was to bring together an initial group of international IP organizations that was as broadly representative of the various facets of IP interests as possible given the short time frame, and which group would collectively have the resources necessary to accomplish two things:
1. To reach out to any other interested IP groups, IP organizations or individuals with IP interests around the world and encourage them to participate in the process of IP Constituency formation, and
2. To set up the consultative process itself for the inclusive, international discussion required to formulate the IP Constituency proposal to be submitted to the ICANN Board for approval at its next meeting in Berlin on May 27, 1999. The result of the Toronto meeting was the "Toronto Document," which was intended to reflect the agreement reached by the members of the Toronto group in respect of the foregoing two goals.
D. The next step in the IP Constituency formation process was the New Zealand meeting, held on April 12-13, where the Toronto document was discussed and openly debated among the participants, and a revised draft that reflected the Wellington consultative meeting (the "Wellington Document") was then prepared, circulated and posted on the ICANN website (www.icann.org) for international consultation that resulted in a third meeting held on May 4 in New York City. By this point the views of interested IP stakeholders were repeatedly solicited such that this document coming out of the New York consultative meeting and submitted to ICANN for approval, adequately reflects the interests of a significant number of IP stakeholders. An operational IPC structure with duly elected interim governance is in place for presentation to ICANN for accreditation.
D R A F T -- 3 May 99 -- D R A F T ----------
Somewhat ironically, in today's modern world, increasing attention is being paid to various aspects of traditional cultures and indigenous knowledge. In some cases, the focus of such attention is on the possible economic advantages that can come from indigenous knowledge regarding farming, medicine, land use and other topics. In other cases, scholars seek knowledge about the culture and history of indigenous peoples for academic purposes. In still other instances, spiritual and religious information is sought by both those who would adopt the spiritual ways of native peoples, and those who would profit through the sale of some "new age" version of native spirituality. And in many cases most relevant to the domain name issues important to ICANN, indigenous names and cultural heritage is used to identify commercial ventures of non-indigenous people.
Questions of ownership, control, compensation, and protection arise in each instance of exploitation, economic or otherwise, of indigenous cultures. Not surprisingly, many turn to concepts of intellectual property laws and concepts when attempting to answer these questions. There are, however, serious definitional and implementational difficulties when attempting to use western concepts of intellectual property rights to address the protection of native cultural heritage and compensation for the use of indigenous knowledge. To move forward, it will become necessary to explore more deeply the nature of indigenous knowledge and cultural heritage rights and to define in each case just what these rights are, to whom they belong, and how and why they must be protected.
The scope of indigenous knowledge and cultural heritage rights have never been adequately defined, and are routinely exploited with no benefit to the owners of the knowledge used or consideration of the need for protection. Moreover, when the issues of compensation or protection are raised, claims of public domain and scientific freedom are often used to justify such exploitation. Indigenous peoples are becoming increasingly aware of their rights in this area, however, and many have begun to explore methods for enforcing these rights. In order to deal effectively with these issues, we must begin to address the threshold issues that will form the foundation and framework for any solutions.
These issues arise wherever indigenous knowledge or cultural heritage may be exploited. This includes within the domain name space to be administered by ICANN. This is not a new issue. Early on, several US Tribes attempted to register within the DNS, and were rebuffed by Jon Postel and Michael St. Johns because they lacked ISO 3166 country code status and were not given International status under the UN Treaty. The US registrar later established a municipalities.state.nation model utilizing the .NSN.US domain name approach. The NSN, standing for Native Sovereign Nation, second level domain name fundamentally alters the government-to-government and treaty relationships central to Federal Indian Law.
This situation and the .US registrar's treatment of US-situated bands which are not presently recognized by the United States, the Jay Treaty Tribes, and the completely policy-free ad hoc administration of the .CA domain, resulted in Tribal preferential use of the .NET, .ORG and .COM registries. This situation also lead to an awareness of indigenous interests in the DNS (circa 1995), and discussion of the issues and actors involved in the IANA transition within the TribalLaw list began in 1997. Identifiable Tribal interests in the name space were initially focused upon correcting the municipalities.state.nation (.NSN.US) model, but cases increasingly came to light which involved the misuse of indigenous knowledge and cultural rights. "Cyber-squatting" has become a problem for indigenous people, examples include:
In October 1998 the Kwataqnuk Conference (Colonialism through Biopiracy) participants brought to the TribalLaw community the larger intellectual property issues, and an awareness of the Biodiversity Convention, the Kari-Oca and Mataatua Declarations, and contact with the Working Group on Indigenous Populations, United Nations Human Rights Commission (Rapporteur Erica-Irene Daes).
The issues raised in these fora are still developing and the process for analyzing and addressing indigenous concerns is far from complete. Indigenous peoples and groups are only now developing an understanding of the concerns for, threats to, and opportunities for cultural heritage posed by the Internet. The constituency will be working in the near future to focus attention on these issues and to develop a set of issues and working goals.
On May 15th, the IIPC will host a special session at the Digital Council Fires Conference (National Indian Telecommunications Institute, sponsor) on the subject of indigenous interests in intellectual property Moreover, IICP will participate in a number of international proceedings. In Geneva during June and July the 17th Session of the Working Group on Indigenous Populations will address the same subject. In August WIPO's 2nd Roundtable on Intellectual Property and Indigenous Peoples will take place, followed in September, by WIPO's 1st Conference on Intellectual Property and Electronic Commerce, and in November, the Working Group on Biotechnology and Implementation of the Convention on Biological Diversity will study the intellectual property aspects of biotechnology and of the implementation of the Convention on Biological Diversity. The organizers of the IIPC proposals shall submit substantive contributions to these International Law fora, as we presently do before the US Patent and Trade Office, and the US Senate. In addition, we are scheduling a presentation on the subject again this summer to the National Congress of American Indians, which is being held jointly with the Assembly of First Nations in Vancouver, BC.
II. MISSION STATEMENT AND PURPOSE
A. The IPC will form an integral part of the DNSO according to Article VI-B, Section 3 of the ICANN Bylaws.
B. The purposes of the IPC are to:
1. Represent the views and interests of users of intellectual property world-wide with particular emphasis on trade-mark, copyright, and related intellectual property rights and their effect and interaction with the Domain Name System (DNS), and to ensure that these views and interests are reflected in the recommendations made by the Names Council to the Board of ICANN; and
2. More particularly, to review and raise all IP matters including any proposals, issues, legislation, or otherwise, which may affect intellectual property, particularly as it interfaces with the DNS, and to provide to the DNSO and the ICANN Board timely and expert advice before it must make any decision or take any position thereon.
1. CONSTITUENCY DEFINITION
The DNSO's Trademark Constituency will be an open discussion forum within the DNSO where issues relating to the interface between domain names and intellectual property may be discussed and proposals for the DNSO developed and refined.
Any person or entity using a name, in any form, in commerce or the domain name system is eligible for membership.
1.DEFINITION OF THE CONSTITUENCY
The purpose of the (Indigenous) Intellectual Property Constituency (IIPC) is to be a consensus-based advisory body within the ICANN framework. The Constituency will represent the nterests of the indigenous groups, co-equally with industrialized peoples, as creators and custodians of human knowledge with respect to the development of domain name policies and processes and the Internet in general. The Constituency will seek to develop positive law consistent with the work of the United Nation Human Rights Commission towards the end of "fair and equitable sharing of the benefits arising out of the utilization of [knowledge] resources" within the Internet.
The representation of the Constituency will primarily be through individuals and institutions delegated by principle knowledge custodians, Old World and New, as qualified to represent custody interests. Exemplars are the Office of Cultural Preservation at Hopi, the Smithsonian Institution, the British Museum, the Te Puni Kokiri, Ministry of Maori Development, and the faculty, judiciary and practitioners of the principle Indigenous Law Program Schools, Tribal Courts, and regional Indigenous ISPs in North and South America, Africa, East Asia and Oceania, and their industrialized counterparts.
The Constituency will also seek to track existing law and novel application of existing law to non-indigenous intellectual property, and its creators, custodians, and beneficiaries, in the context of the DNS and more generally should the need arise.
III. ORGANIZATIONAL STRUCTURE ANDINTERIM DECISION-MAKING
A. The IPC shall consist of an elected IPC Council ("IPCC") drawn from the member organizations meeting the qualifications under Section IV and observers also referred to in Section IV.
B. Three members of the IPC shall be nominated by and elected from the IP member organizations to represent the constituency on the Names Council of the DNSO. No organization shall have more than one of its nominated representatives on the Names Council at one time.
C. No person may serve as a member of the Names Council for more than two successive terms. A term of service as an Interim representative of the IPC to the Names Council shall not be considered a successive term for the purposes of this section.
D. The IPCC shall be the governing body of the IPC and shall be composed of one representative of each member organization that will be responsible for the following;
1. Reviewing applications for membership in the IPC.
2. Carrying out through members of the IPCC or appointment of volunteers, the administrative functions associated with the operations of the IPC and the IPCC, including the arrangement of meetings, taking of minutes, maintenance of an appropriate mechanism suitable for facilitating contact and dissemination of information among all members of the IPC and other secretariat functions.
3. Formulating membership consensus on policy issues for the purpose of advising the IPC representatives on the Names Council.
4. Reaching out to any other interested IP groups, IP organizations, or individuals with IP interests around the world and encouraging them to participate in the IPC.
5. Developing mechanisms for the nomination and election of representatives to the IPCC and Names Council from among the members of the IPC, and modifying same from time to time as may be required to ensure fairness and to reflect the current needs of the IPC.
6. Assessing and collecting membership fees.
E. Members of the IPCC shall be elected for a period of two years and the Chairperson shall alternate at the end of the two year period, such that no member of the IPCC shall provide a Chairperson for more than one successive term.
F. Subject to accreditation by the ICANN Board, an Interim IPCC has been appointed and Interim representatives of the IPC to the Names Council have been elected by IP organizations of the IPC [lists of Interim IPCC Officers and Interim Names Council representatives are appended hereto], in the manner set forth below.
1. Interim IPCC:
2. CONSTITUENCY OPERATIONS
a. Online Presence.
To the greatest extent possible, the Trademark Constituency will conduct all of its discussions and perform all of its work on and over the Internet.
To facilitate the work of the Trademark Constituency, the members shall elect three Moderators who will over oversee the debate and discussions in the Trademark Constituency and, as appropriate, prepare reports, discussion summaries, and proposals to circulate to the other DNSO constituencies and the General Assembly. Reports and other documents prepared by the Moderators shall fairly reflect the views of the various constituency members and the degree of consensus in the constituency.
The three elected Moderators also will serve as the constituency's representatives on the DNSO's Names Council. Moderators will serve for a term of one year. Any constituency member who does not serve on the Elections Committee is eligible to serve as a Moderator.
c. Participation by Organizations.
In commenting on any issue or proposal under consideration by the constituency, members may choose to identify their comments as coming from an organization to which they belong. Such organizational comments may be used by the constituency moderators to determine what weight to give a particular point of view. To assist the moderators in determining what weight organizational comments should be given, organizations are required to report (1) the specific steps, if any, by which they have polled their subordinate members on the question at issue and (2) the terms of any express grant to them by their membership of authority to state the member's views on the question at issue.
2.ORGANIZATIONAL STRUCTURE AND INTERIM DECISION-MAKING
The Constituency shall consist of a Council and three advisors, the Chairperson of the United Nations Working Group on Indigenous Populations (UNHRC), the Director General of World Intellectual Property Organization (WIPO) and the current Chair of the Internet Architecture Board (IAB), or their designates.
The initial Constituency Council shall designate members to the Names Council of the DNSO, and shall prevent participation in this activity from unduly burdening and otherwise distracting its members by means of rotation.
The governing body of the Constituency shall be the Council (IIPC) composed of at least [x] members that will be responsible for:
A. In General
1. The IPC shall consist of organizations committed to the advocacy and development of intellectual property (including trademarks, copyrights, and patents) as fundamental components of meaningful commercial activity in the national, regional, and global realms, and, more particularly shall:
B. Additional Factors
1. In determining eligibility for membership, the following additional factors shall be considered:
The IPCC shall take into account the foregoing in determining whether the applicant for membership is sufficiently involved in and representative of the intellectual property community to qualify for membership.
C. Comments and Participation from All Interested Parties
In addition, the IPCC will actively invite and encourage comments and participation in meetings from all interested parties, including individuals, other Supporting Organizations, and other DNSO constituencies through a consultative observer mechanism and periodic online and face-to-face meetings.
D. IPCC Discretion
The IPCC has the discretion to admit, refuse, or expel any organization where on reasonable grounds, it feels it is in the best interest of the constituency to do so.
The membership of the Constituency will develop over the coming year. Initial members include the Council members and their respective organizations. The primary criteria for membership is ability, an acceptance of the moral framework expressed in the Biodiversity Convention, paraphrased above and repeated here: fair and equitable sharing of the benefits arising out of the utilization of [knowledge] resources within the Internet, and a relationship with an owner or custodian of indigenous knowledge and/or cultural heritage rights. This Constituency is neither "closed" nor "exlcusive". Qualified non-indigenous individuals and organizations, are eligible for membership. There is the obvious problem to address at some future point of ensuring equitable representation for both indigenous and industrialized peoples, institutions, and polities.
When deemed necessary by the IPCC, appropriate fees for membership in the IPC shall be set.
The Constituency shall develop a process similar to the model of the IETF's POISSON Working Group, a historically effective vehicle for distributed collaboration by intellectually coherent working groups, and regional meetings.
A. After fulfilling its obligations under III (C)(4), the voting structure is to be reviewed and determined by the Interim IPCC after consultation with the full membership. The voting structure shall be open, fair and not subject to capture.
B. No business of the IPC or the Interim IPC shall take place without the representation of at least 40% of the members present.
VII. OBSERVER STATUS AND LIAISON WITH OTHER CONSTITUENCIES/ SUPPORTING ORGANIZATIONS
A. In the interest of complying as fully as possible with the mandate of the IPC as set out in Section II, the IPCC shall:
1. Actively seek out input and advice from those organizations, individuals, or others that are not eligible for membership in the IPC, on the basis of observer status, and such organizations, individuals, or others shall be encouraged to join formally the IPC as observers and, upon joining, shall be entitled to attend and participate in open meetings of the IPC's membership.
2. Establish a liaison mechanism whereby it obtains input from the other DNSO constituencies and the other Supporting Organizations, and where possible, actively work towards consensus building.
Commentary: It is the intention of the organizations that the IPCC reach out to the other constituencies of the DNSO, the other SO's, individual organizations (governmental, the Bar associations, public interest, technical/Internet, and business groups) and broadly to the public, encouraging their participation in and commentary on the discussions and recommendations of the IP Constituency. It is hoped that in this manner, the IP Constituency, while representing the international IP community, as it should, will have the benefit of the information and advice of a much broader cross-section of the public in reaching the decisions it communicates to the Names Council for consideration by ICANN.
Prepared by the organizations of the IPC in New York City on May 4, 1999
To the greatest extent possible, the Trademark Constituency will conduct a ll of its elections on and over the Internet. An Elections Committee shall be formed for the purpose of maintaining a membership role, verifying constituency eligibility, and conducting fair and verifiable elections.
IP Constituency Interim Officers
IP Constituency Interim Names Council Representatives
C. All appointments subject to accreditation by the ICANN Board.
IP organizations of the IPC as of May 4, 1999 are: