2018-01-10 Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP WG

Notes/ Action Items

Actions:

1. Staff will update the Compilation of Current URS Discussion Documents based on the suggested edits from the 10 January meeting.

2. Staff will work with the Co-Chairs to develop a historical timeline for development of the URS in the New gTLD Program

Notes:

1. SOIs: No updates.

2. Continue discussion of the list of draft topics and suggested high level questions concerning URS, and discussing Co-Chairs statement on URS:

Part 2: High-Level Topics

Note: Suggested topics and questions will be added to column three of the table.

A. Complaint:

-- Suggested topic: The administrative review of the complaint

C. Response: C.2. Other issues relating to responses:

-- Suggested Topic: Default procedures

[Other edits to Sections A through E captured during the 03 January meeting.]

F. Remedies:

-- Add suggested topics: “Review of implementation” and “Implementation of current remedies”

F1. Scope of remedies:

-- Add suggested question: “Are the intended remedies are being implemented properly?”

-- Add suggested new remedy: “The parties that respondent and complainant could negotiate a purchase of the domain during the suspension.”

-- Add suggested new topic: “Renewal by complainant”

G. Appeal:

-- Add suggestion to modify the charter question: “Should there be any modification of the appeals process?  Has the appeals process been used?  Have there been any unintended consequences?”

-- Note: Differentiate between different types of appeal.  Internal mechanism to the URS; external appeal where either side might want to go to the courts.

H. Potentially overlapping process steps

-- Note: Should be capturing overlapping process steps.  Make a note about both the appeal in the URS and "the appeal" in external courts.  Also de novo review could be in overlapping steps; appears to be captured in the current language.

I. Cost: No changes suggested.

Notes:

-- Could overlap with the topic "response fees". 

-- Re: the charter questions: Have a more neutral question than "How can costs be lowered so end users can easily access RPMs?" such as "Can costs be lowered and what would be the effects?" or "Are costs appropriate?"

-- Cost is a business decision of the provider.  You can't set costs.  And there is competition between providers, right?  ICANN itself does not set the fees. Different question if we are asking if ICANN should subsidize something.  Don't lose the consideration of the cost allocation model.  Shouldn't be looking at the level of the costs.

-- Note that staff, when consulting with Heather about the topic listing, assumed that all of these points will be raised and discussed under the actual topic of "cost allocation" (in this case).  The idea was to keep the topics brief, and when the time comes to discuss each topic against the agreed high-level questions, staff can go back to these early discussions and pull out information if needed.

J. Language: No changes suggested.

K. Abuse of process: No changes suggested.

L. Education and Training: No changes suggested.

Notes:

-- DMCA education and training may be a helpful model (see posting from George Kirikos on the list).  May want to capture other models as well.

-- Also reference training for panelists under the same heading?  The current Procedure mandates that panelists be trained specifically in URS.  Providers are required to train panelists.  They are not required to train complainants/respondents. There are yearly meetings with both URS and UDRP panelist, with updates, education, etc. on cases and policies.

-- Staff will correct duplication of the questions about Providers training.

M. URS Providers:

-- Suggested additional questions: “What is the oversight, if any, of the URS providers? Who are the panelists accountable to?  Who has oversight on the panelists?”

N. Alternative Processes:

--- Suggested topic: Mediation.

Other General Charter Questions:

Notes:

-- These are questions relevant to all the RPMs for the most part, so the question for the WG is when they wish to go over them.   The staff suggestion previously was to do so after the RPMs have all be reviewed (for Phase One, in this case) - and see what, if anything, is missing or may need to be added to the review before Phase One is deemed complete.

-- In the early part of the charter questions there are 3 bullet points labeled as general.  That is followed by a listing of specific issues.  At the end there is a section called "Additional Questions or Issues" that did not fit within an overarching issue and were applicable to more than one RPM.  For purposes of this review of the URS and compiling this table we combined the overarching questions with the additional questions.  Did not add anything that wasn't in the charter to take out anything.

-- What do we do with the other general charter questions? Just not trying to drop anything so wanted to make sure they were captured.  Just need to see if anything has been missed or anything needs to be done.

-- We have divided our work into phase I and 2 -- where do these questions fit?  Need to finish URS in phase 1.   If there are recommendations from the URS to the UDRP those will be taken up in Phase 2.  The WG is obliged to publish a Phase 1 report before starting Phase 2.

Part Three: Co-Chairs' Joint Statement Regarding URS Review

Notes:

-- When you look at the questions regarding section M, number one the Co-Chairs' proposal is meant to substitute for these questions.  Take all the subjective questions and substitute objective questions.

-- Looking at compliance or non-compliance with the MOU with the providers.

-- Is the third bullet at the bottom of page 9 in our scope of work?

-- If this WG decides that the URS becomes consensus policy for all gTLDs is there any additional requirements or WG that needs to be developed?  From staff: One potential outcome from this PDP is that the URS could become a consensus policy for all gTLDs. If the Board accepts that then an Implementation Team would need to be formed.  There may need to be considerations on when the policy would take effect, what about legacies that have URS as a contractual requirement and some do not, etc.

-- The task before this WG is to evaluate the URS, whether it's working as intended, whether it needs to be changed, and the question as to whether the URS will become consensus policy is a separate question that's likely to be addressed at the end of Phase 1.

-- We review the URS now, propose any changes, decide the consensus policy question and the in Phase 2 we can decide whether something similar needs to be made part of the UDRP, also changes in consensus policy in the UDRP.

-- Does consensus policy automatically apply to all gTLDs including legacy gTLDs?  Philip Corwin: A Consensus Policy is one that all registries must adhere to. Right now the URS is an implementation detail of the new gTLD program and does not apply to legacy gTLDs as a mandate.