|Subject:||[cctlds-comments] WIPO ccTLD Best Practices|
|From:||"Name Committee" < firstname.lastname@example.org>|
|Date:||Mon, 30 Apr 2001 19:01:57 +0200|
Organization: Name Committee (krnic) Position: wipo study group
Comments on the WIPO best practice document for the prevention and resolution of intellectual property disputes
The document seems to be drafted primarily servicing the need for enforcing intellectual property rights. We argue for more cautious approach in dealing with registrants' contact details, especially individuals' personal information such as names, phone numbers, addresses and fax numbers. Also, local privacy laws and international privacy principles should be respected, although convenience for enforcing intellectual property rights is not totally unimportant. Details comments follow.
1. Domain Name Registration Agreement
The six provisions that are recommended to be included in the registration agreement may pose undue burden on the registrant of a domain name. Especially the third provision that considers inaccurate or unreliable registrant contact details or the registrant's failure to keep contact details up to date a material breach of the registration agreement and a basis for cancellation of the domain name registration may require a cctld administrator to impose greater punishment than that is recommended by local laws and rules. The fourth provision that coerces the registrant to agree to have her contact details be made publicly available conflicts with many local and international privacy laws and principles. The registrant does not have any realistic choice to have her contact details not available. The provisions recommended for the registration agreement seem to be based on the assumption that the registrant contact details should be made publicly available, real time. But! this assumption is only one (maybe the most liberal one) of many ways for dealing with registrant data. Substantial discussion on this issue should be made before suggesting provisions based on this assumption.
2. Collection and Availability of Registrant Contact Details
This policy reflects the concerns of intellectual property holders very well, unfortunately at the expense of individuals' fundamental privacy rights. The collection list of contact details includes many kinds of private information, without any supporting argument for making it available except for the convenience of property holders. The postal address, voice telephone number, and facsimile number of an individual are the essence of personal information that should not be so easily released to the public worldwide. A bigger problem stems from the fact that the registrant does not have any option to refuse to make this information available, which is often provided in real space (as in the case of telephone directories). The distinction between individuals and corporations may have to be made in this regard, as the privacy concern for individuals is bigger than that for corporations. Organizations or associations may also have to be provided bigger privacy protection ! than commercial corporations. There are many options of collecting and releasing registrant data from making only the information whether the domain name is registered or not available without releasing any personal information, to collecting only the registrant's name, or name and e-mail address. Another solution may be to make proxy information such as registrar's contact information available and to require the registrar to comply to the request for releasing the information when disputes arise. The pros and cons of these different approaches should be fully discussed. The current document presents the enforcement of intellectual property rights as the basis for making wide variety of personal data available on the Internet. However, privacy principles and regulations have equal or sometimes greater individual and social significance, so should not be easily compromised for commercial or business purposes. We hope to see in the document greater respect for privacy laws in local jurisdictions, especially in the case of closed cctlds. We recognize the problem of bad faith registrants who attempt to frustrate enforcement procedures by providing inaccurate or unreliable contact details. However, rather than making the provision of inaccurate or unreliable information per se the material breach of the contract, we recommend to distinguish between real bad faith act and accidental provision of such information by investigating facts of the case.
3. Alternative Dispute Resolution (ADR)
The value of ADR may be different among different cctlds and according to local situations. The current document focuses on the importance and benefit of UDRP or UDRP-based dispute resolution systems and seems to underestimate particular issues and possible difficulty in applying the resolution policy that is originally developed for gtlds to cctlds. Further discussion seems to be called for.
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