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051040040 RPMs in all gTLDS PDP WG - Shared screen with speaker view
Marie Pattullo
18:05
Happy Belgian National Day all! I realise this may not mean much to anyone but me ;-) but imagine me waving my little flag & toasting you all in decent Belgian beer :-).
Nathalie Peregrine
18:25
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.
Kathy Kleiman
18:26
Happy Belgian National Day, Marie!
Marie Pattullo
18:40
Merci Madame!
David McAuley (Verisign)
18:42
Have a great holiday, Marie
Marie Pattullo
21:18
Merci David. I could sing the National Anthem to cover this silence... but I respect you all too much to inflict that on you ;-).
Nathalie Peregrine
21:18
For those just joining, Phil is changing internet connection and re-joining shortly to continue the call
Julie Hedlund
22:20
hand up
Kathy Kleiman
22:24
Did Phil get cut off?
David McAuley (Verisign)
22:32
yes
Michael Karanicolas
22:36
Yes - Phil we only caught the end of that
Marie Pattullo
22:54
Loud & clear, Phil.
Ariel Liang
23:22
https://docs.google.com/spreadsheets/d/1QTt_m5qdzoalRDcIUED01ur-yJgODCex8bj_-aKO7fI/edit#gid=1283083392
Kathy Kleiman
24:41
Day of telecom problems
David McAuley (Verisign)
24:57
maybe the alignment of the planets
Nathalie Peregrine
24:58
I’ll reach out to him
Kathy Kleiman
24:59
Jason, you'll have to come back in.
Susan.Payne
26:29
I don't see what new idea there is that's been raised. but no doubt that will be clarified at some point
Kathy Kleiman
26:42
yes
Michael Karanicolas
26:56
Sure - happy to, Susan. It’s right at the top: INTA is open to exploring a limited system for reviewing TMCH records, perhaps through an accredited access system akin to the WHOIS SSAD being developed in another ICANN policy development process.
Susan.Payne
27:29
we've discussed that before
Michael Karanicolas
29:24
I don’t recall discussing that, and certainly not from the context of INTA’s having supported it.
Ariel Liang
30:07
Hand up
Kathy Kleiman
30:10
Phil, I think there is a merged proposal on the table.
Justine Chew
33:06
Apologies for joining late. I got held up elsewhere.
Nathalie Peregrine
33:16
Welcome Justine!
Ariel Liang
34:01
Claudio is the third person in the small team that proposed this consolidated proposal
Kathy Kleiman
34:14
Is Claudio on the call?
Nathalie Peregrine
34:23
@kathy, he is not.
Kathy Kleiman
35:01
Tx Nathalie
Susan.Payne
36:53
If one were to adopt this, then 3.2.6 should have the addition "unless they also satisfy 3.2.1 or 3.2.2"
Rebecca Tushnet
37:15
Susan, I'm sure that's acceptable to everyone
David McAuley (Verisign)
37:30
and 3.2.6 seems to have a comma for no reason
Marie Pattullo
41:11
PDOs are an EU term.
Justine Chew
42:01
+1 Paul, I think it's supposed to be appellations of origin. But then I'm not of the author of the proposal.
Mary Wong
42:18
In terms of international treaty, GIs are defined in the TRIPS Agreement. Appellations of origin are defined in the Lisbon Treaty. As Marie said, the EU has “protected designations of origin”.
Maxim Alzoba
44:01
sorry for being late
Maxim Alzoba
44:07
hello all
Michael Karanicolas
44:18
I agree that there should be no use for 3.2.4. If you define things properly - there should be no need for a broad catch-all
Mary Wong
45:14
There has been a fair bit of jurisprudence, both academically and to some extent in the WTO trade dispute area, about the origin and extent of intellectual property rights protection for GIs. This is one reason why staff respectfully suggests that the Working Group not try to distinguish between the various “other forms of IP” as that is a complex legal subject that may go beyond our scope.
Marie Pattullo
45:47
@Paul - overview https://ec.europa.eu/info/food-farming-fisheries/food-safety-and-quality/certification/quality-labels/quality-schemes-explained_en
Marie Pattullo
45:56
Not for now but for info.
Paul McGrady
46:21
We need to fix "designation of origins" or else it will be hard to get on board with 3.2.6 but I want to get on board with 3.2.6 because like many/most I do not thing GIs have a place in the TMCH unless they are also registered trademarks in a national or supranational trademark office.
Massimo Vittori
46:43
Sorry, I have just joined the called….
Marie Pattullo
47:13
Perfect timing Massimo!
Massimo Vittori
48:12
:-)
Greg Shatan
48:19
But indications are NOT supposed to be in the TMCH
Rebecca Tushnet
49:30
and 3.2.4 is not entitled to Sunrise/Notice. Part of this disagreement is about the label of the database into which 3.2.4 stuff goes, which I don't think is actually very important to anyone if Sunrise/Notice are respected
Mary Wong
51:15
@Rebecca, understood. The staff suggestion for clarity acknowledges that this proposal describes an ancillary database that doesn’t trigger Sunrise or Claims for the group of “other forms of IP”.
Rebecca Tushnet
51:37
Thanks, Mary--I wanted to address Greg's specific comment in chat, with which I am in substantive agreement
Greg Shatan
51:54
Too be clear, my position is that GIs should not be in the TMCH.
Susan.Payne
52:34
@Mary, what woud be the point of putting something in the TMCH if it qualified neither for sunrise nor claims?
Rebecca Tushnet
53:19
Greg, do you then want to delete 3.2.4?
Greg Shatan
53:30
If we want a GICH that’s a whole other discussion....
Cyntia King (USA)
53:36
+1 @Susan - what point, indeed.
Rebecca Tushnet
53:55
I agree with Cyntia and Susan mostly but I do have a theory
Rebecca Tushnet
54:06
which is that Deloitte would like someday to develop ancillary services it has yet to offer
Mary Wong
54:21
@Susan, staff doesn’t have a position on the proposals. We just wanted to encourage the Working Group to not try to create different treatment regimes as between various “other forms of IP” which may include GIs (which this text for 3.2.4 and 3.2.6 may imply).
Greg Shatan
54:29
@Rebecca, yes.
Paul McGrady
54:54
+1 Phil. We have gone down the path over and over as to whether or not non-trademark-registered GIs should be in the TMCH. There is no strong support for it. Let's refine the proposal on the list but let's not relitigate the other issue which is long dead now.
Rebecca Tushnet
55:21
Unfortunately Greg I doubt we can get there but if you agree that only 3.2.1, .2, and .3 get Claims and Sunrise, are we most of the way to agreement?
Greg Shatan
55:50
If there was a reason for it that was consistent with the original focus of the TMCH, it would be interesting to identify it,
Greg Shatan
56:12
It being 3.2.4
Ariel Liang
56:24
Massimo still has his hand up
Mary Wong
56:26
In other words, we do not think it advisable to try to distinguish between GIs, PDOs, AOOs etc. More broadly, while staff doesn’t have a view about GIs vs TMs, our sense is that the Working Group generally agrees that the TMCH should be for TMs only (which may include GIs only to the extent that they are registered as either collective or certification marks).
Rebecca Tushnet
56:56
I believe the theory was ancillary services, and it got stuffed into "TMCH" because people weren't thinking very much about the name by that point. But if the databases are distinct for Claims/Notice, how much do we care?
Kathy Kleiman
56:56
Good (to Phil's guidance).
David McAuley (Verisign)
57:19
+1 Kathy - good suggestion by Phil
Greg Shatan
57:28
@Rebecca, as a general proposition, agree on 3.2.1, 2, 3.
Kathy Kleiman
58:11
@Ariel, could you share the link, please?
Paul McGrady
58:28
Already asked and answered.
Ariel Liang
59:02
Overarching questions: https://docs.google.com/spreadsheets/d/1wke2krmhV2tNPNhvIOskAlLVraWp-88mqzScCtj01fw/edit#gid=872694278
Kathy Kleiman
59:07
tx!
Rebecca Tushnet
59:12
Greg, I think part of the problem is that read with sedulous attention, 3.2.1 .2 .3 are already the only ones allowed to get Claims/Notice but the cross-references obscure this. How much do you care about whether the database into which .4 terms go is called the "TMCH" *if* it is clear that GIs are .4 ?
Paul McGrady
59:19
We can't keep going back to Day 1 on every call if we are ever going to get through these.
Greg Shatan
01:00:35
A GI is no more a trademark than a duck is a chicken.
Rebecca Tushnet
01:02:09
I understand your point, Greg; from my perspective they're putting ducks in the chicken pot right now, and if you want to change that, you might have to accept that the rules will refer to the poultry shed as the chicken house so that the chickens and ducks will be separated.
Greg Shatan
01:02:14
We don’t protect ducks by calling them chickens or putting them in chicken coops.
Rebecca Tushnet
01:02:39
Right, but if we don't get consensus, that's what continues to happen ...
Greg Shatan
01:03:37
It’s easy enough to keep out the ducks. What do you think we need to get there?
Mary Wong
01:04:10
Again, staff do not proffer a view about whether the TMCH should include “other forms of IP” (including those, like GIs, that may enjoy sui generis protections). We simply think the Working Group should treat all “other forms of IP” equally (including as a group distinct from TMs, which some members support) and not try to define or distinguish between a GI, an AOO or PDO etc.
Greg Shatan
01:04:43
+1 Mary
Julie Hedlund
01:06:12
hand up
Rebecca Tushnet
01:06:48
Greg, I wish it were easy to keep out the ducks, and I could easily live with just deleting 3.2.4, but there are other voices strongly in support of it and there didn't appear to be a possible consensus on that fix. Would you be satisfied if 3.2.4 explicitly said that any database for 3.2.4 should be given a separate name? It is already not eligible for Claims/Notice.
Julie Hedlund
01:06:57
hand up to respond to Kathy’s request
David McAuley (Verisign)
01:07:35
anyone else have hard time hearing Julie
Justine Chew
01:07:41
yes
Kathy Kleiman
01:07:42
yes
Marie Pattullo
01:07:45
There will remain the issue of fragmentation & non-harmonisation if these gTLD RPMs only apply to *some* gTLDs. Added to the contract negotiations in which URS etc. now apply to some legacy gTLDs. It's confusing for anyone not versed in the detail, I think.
Justine Chew
01:08:05
@Julie, can't hear you very well
Marie Pattullo
01:08:12
+1 - sorry.
Kathy Kleiman
01:08:20
@Julie - can this be put together into a single set of paragraphs?
Kathy Kleiman
01:08:51
But it needs to be a bit more concise...
Kathy Kleiman
01:09:02
sounds like an easy jump to the summary!
Julie Hedlund
01:09:04
@Kathy: The summary has already been provided in the chart and in the text
Jason Schaeffer
01:09:28
+1 Kathy
Julie Hedlund
01:09:32
Also, we should not summarize more or we’ll lose the context or mischaracterize the comments
Mary Wong
01:09:47
The final report will no doubt have some text about the WG’s deliberations about these other overarching questions - but the staff believe that the current tool (that is on screen) already summarizes the positions and comments.
David McAuley (Verisign)
01:11:13
General language with links seems to be appropriate so folks can dive deeper if they wish
Kathy Kleiman
01:11:35
I think we are in agreement.
Kathy Kleiman
01:14:16
good
Ariel Liang
01:14:20
Staff can produce that summary as a draft answer to the charter question to be included in the final report for the WG to review
Kathy Kleiman
01:14:34
we are skipping #2
Kathy Kleiman
01:15:03
Did anyone see major new information in these responses?
Kathy Kleiman
01:15:12
(#3)
Cyntia King (USA)
01:17:41
I don't see the need for "offsets". We have discussed synchronizing language & materials for several RPMs.
Paul McGrady
01:18:04
hand up
Kathy Kleiman
01:19:37
So we have an interim answer now... and revisit this question later in Phase 2.
Kathy Kleiman
01:19:46
(we can have...)
Paul McGrady
01:29:32
No one is standing in anyone's way. We have smart people who just disagree on the substance.
Paul McGrady
01:29:42
We have to assume the best of each other.
Paul McGrady
01:29:52
And not just on this topic.
Greg Shatan
01:29:54
These have “duly been taken into account,”
Cyntia King (USA)
01:30:29
Sometimes progress is recognizing that there isn't enough consensus to make significant change outside those put forward in the Proposals.
Griffin Barnett
01:31:57
We also were given a pretty scattered and messy charter full of badly written and not fully well-considered charter questions
Kathy Kleiman
01:32:08
I think we should record a good summary of these responses for the GNSO Council and future reviewers (future RPM WGs).
David McAuley (Verisign)
01:32:18
Helpful context, thanks Mary
Lori Schulman
01:32:36
Agree that the questions were raised. Also remind that these RPM's were put in place to counter the "worst" cases. They were the result of IRT and STI with community input. There is balance here. Neither side of the equation has gotten everything they have wanted. Years ago and now.
Brian Beckham (WIPO)
01:32:49
Could not agree more @Griffin, and this should be a lesson learned before any work on Phase II
Lori Schulman
01:33:00
Yes, the charter was a big impediment.
Lori Schulman
01:33:09
I think we all agree on that.
Griffin Barnett
01:33:17
Agree Brian - I am very hopeful that GNSO Council will prepare a revised Phase 2 Charter that will be a better starting point
Mary Wong
01:33:44
@Griffin, without commenting about the questions themselves, staff recalls that the fact that so many questions were sent in from prior work on RPMs that the Council decided to include them all, unchanged, in the PDP Charter for the WG to refine and decide how to address.
Griffin Barnett
01:34:19
Yes I recall that Mary… it is a bit of a dereliction of the COuncil’s duty though not to have properly refined them up front, imo
Lori Schulman
01:34:33
Then there needed to be a charter committee. The WG lost 2 years of time sorting it out and we have been criticized for it.
Griffin Barnett
01:34:35
Definitely not staff’s fault tho
Lori Schulman
01:34:49
Yes, not blaming staff.
David McAuley (Verisign)
01:34:59
I actually can understand Council's decision but hope that our experience will help refashion charter for phase 2
Mary Wong
01:35:11
No worries, staff doesn’t think so either :) And these specific Additional Overarching Charter Questions (again, as distinct from the General Overarching ones) were not reviewed, drafted or modified by the Council. They are preserved “as is” from public comments submitted.
Paul McGrady
01:35:23
Perfectly OK to note in our report that not everyone was happy with the way registrant protections turned out. That's a fact, not an opinion.
Griffin Barnett
01:35:24
Yeah and I think that was sorta the problem
Griffin Barnett
01:36:01
Council really should have, in retrospect, actually reviewed and refined the questions so that we had something that was more neutral, cohesive, etc
Michael Karanicolas
01:36:26
I think it’s worth noting that there’s been literally no progress on around half of the issues raised here.
Griffin Barnett
01:37:22
This question really seems to be a restatement of the previous question concerning free expression
Griffin Barnett
01:37:41
although protection of IP is also recognized as a human right
Kathy Kleiman
01:38:22
I think we should just report the answer back.
Griffin Barnett
01:39:29
Well, I think human rights is obviously a broad category, but certain concepts like free expression ,due process, and obviously protection of IP rights have all been part of our discussions
Rebecca Tushnet
01:39:56
+1 Kathy
Michael Karanicolas
01:40:25
I’m a bit surprised Article 19 didn’t provide anything more substantive to this. They have a whole mechanism for assessing human rights at ICANN that they’ve been pushing forward
Cyntia King (USA)
01:40:31
I think we can probably do some work on this in Phase 2.
Lori Schulman
01:40:54
Yes, human rights include right of authorship and right to the rewards of one's work as well as justice.
Lori Schulman
01:41:05
It's a panopoly.
Lori Schulman
01:41:37
+1 Griffin.
Griffin Barnett
01:43:07
Well we have, we just didn’t refer to them as “human rights” - we have talked about due process, privacy, free expression issues etc
David McAuley (Verisign)
01:43:11
agree w Griffin and there is a human rights backstop here - now the Board will honor it core value on HR when it approves the work product here - if anything cuts against human rights it should be flagged but I do agree w Griffin that this is implicit in what we did
Paul McGrady
01:43:21
Am I reading this right? We have 1 response and it was "no opinion"?
Griffin Barnett
01:43:23
Agree David
Griffin Barnett
01:43:52
@Paul no I think there were others up abive
Griffin Barnett
01:43:56
above
Paul McGrady
01:44:00
Thanks!
Mary Wong
01:44:19
@David, just saw your comment and yes that seems to be the case here.
Kathy Kleiman
01:45:03
Tx you, Phil!
Marie Pattullo
01:45:06
EU Charter of Fundamental Rights, Art 17, "Intellectual property shall be protected." Just to throw in an EU angle.
David McAuley (Verisign)
01:45:07
Thanks Phil, staff, and all
Julie Hedlund
01:45:32
Thanks @Susan and noted
David McAuley (Verisign)
01:45:41
property also protected in UDHR
Justine Chew
01:45:48
Good one, @Phil.
Marie Pattullo
01:45:50
Agree with Susan re %s - it's very misleading overall (as said many times before).
Cyntia King (USA)
01:45:59
@Susan - how unfortunate for us all that this wasn't more important.
Maxim Alzoba
01:46:18
bye all
Susan.Payne
01:46:32
@Cyntia, I think it's another of those questios that it's impossible to answer and so people didn't
Marie Pattullo
01:46:33
Thanks all.
Julie Hedlund
01:46:38
Next meeting is Thursday, 23 July at 17:00 UTC