Is trust in the ICANN community policy-making process on the decline? Submissions to a recent public comment period on UDRP reform certainly seem to suggest so.
Reading through the 41 comments filed, it’s clear that while many community members and constituencies have pet peeves about UDRP as it stands today, there’s a disturbing lack of trust in ICANN’s ability to reform the policy without breaking it, and very little appetite for a full-blown Policy Development Process.
It’s one area where constituencies not traditionally allied or aligned — such as domain investors and intellectual property interests — seem to be on the same page.
Both the Intellectual Property Constituency and the Internet Commerce Association are among those calling for any changes to UDRP to be drafted rapidly by subject-matter experts, rather than being opened to full community discussion.
The IPC called the UDRP “a vital and fundamental tool that has a long and proven track record”, saying it has “generally been consistently and predictably applied over the course of its more than 20-year history”. Its comment added:
it is critically important that future policy work regarding the UDRP not diminish, dilute, or otherwise undermine its effectiveness. Such policy work should be extremely deferential to and reliant on the input of experts who have actual experience working with and within the UDRP system, and resistant to efforts that would weaken the UDRP system; any such work should be based on facts and evidence of problems in need of a systematic policy-level solution, and not merely to address specific edge cases, differences of opinion, or pet issues.
That’s pretty much in line with the ICA’s comments, which state that participants in future UDRP reform talks “should be experts… individuals who have extensive personal and practical knowledge of the UDRP through direct personal involvement”.
That language — in fact several paragraphs of endorsement for an expert-driven effort — appears almost verbatim in the separately filed comments of the Business Constituency, of which the ICA is a member.
The ICA’s reluctance to endorse a full-blown PDP appears to come from the experience of the Review of all Rights Protection Mechanisms in all gTLDs PDP, or “Phase 1”, which ran from 2016 to 2020.
“Phase 1 was lengthy, unproductive, inefficient, and an unpleasant experience for all concerned,” the ICA wrote in its comments.
“Perhaps the biggest problem with Phase 1 was that structurally it was inadvertently set up to encourage disagreements between interest groups rather than to facilitate collaboration, negotiation, and problem solving,” it said.
The BC arguable goes further in its deference to experts, calling on ICANN to invoke section 13.1 of its bylaws and drag the World Intellectual Property Organization — leading UDRP provider and drafter of the original 1999 policy — as an expert consultant.
The BC also wrote:
It is imperative that stakeholders do not unnecessarily open up a can of worms with the UDRP through destabilizing changes; rather, they should take a focused and targeted approach, only entertaining improvements and enhancements which stand a reasonable chance of gaining consensus amongst stakeholders
WIPO itself is thinking along the same lines:
If the choice is made to review the UDRP, the process should be expert-driven and scoped
To avoid undoing the UDRP’s success, ICANN needs to give serious consideration to the weight to be accorded to the various opinions expressed. So-called “community feedback” referred to, for example, in section 4 of the PSR seems to lack specific depth and can seem more ideological or anecdotal
Comments from ICANN’s contracted parties also expressed concerns about a PDP doing more harm than good.
The Registries Stakeholder Group has almost nothing to say about ICANN’s report, but the Registrars Stakeholder Group expressed concerns that “any updates could have unintended consequences resulting in a less effective UDRP”.
It uniquely brought up the issue of volunteer fatigue and ICANN’s cumbersome backlog of work, writing:
Although the RrSG recognizes that there are some minor areas for improvement in the UDRP, it is the position of the RrSG that a full policy development process (PDP) is not necessary. The UDRP was adopted in 1999, and has been utilized for over 60,000 UDRP cases. The RrSG is not aware of any major issues with the UDRP, and is concerned that any updates could have unintended consequences resulting in a less effective UDRP. Additionally, not only is there a backlog of policy recommendations waiting for ICANN Board approval or implementation, but the RrSG is also aware of substantial community volunteer fatigue even for high-priority issues.
These comments were filed in response to a public comment period on an ICANN-prepared policy status report.
Not every comment expressed skepticism about the efficacy of a PDP. Notably, the Non-Commercial Stakeholders Group — the constituency arguably most likely to upset the apple cart if a Phase 2 PDP goes ahead — appears to fully expect that such work will take place.
There were also many comments from individuals, mostly domainers, recounting their own experiences of, and reform wish-lists for, UDRP.
ICANN’s report will be revised in light of these comments and submitted to the GNSO, which will decide what to do with it.
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