"37. While our debates are, I am told, confidential, I think it breaks no confidence to say that our meeting in Geneva was not a drafting session. Rather, we were invited to comment on the issues, and discussed the texts we had been given. WIPO then revised the texts very extensively, and e-mailed us the revised versions. We had only a very short turnaround, of a few days late in the holiday season, to comment by e-mail on what was, to my eye, a wholly new document. WIPO then made some additional changes, including the insertion of new material, and on Dec. 23, 1998 WIPO issued RFC 3, the �Interim Report,� which contains WIPO�s first draft of its proposals. As WIPO itself acknowledges in RFC 3, paragraph 29, this is WIPO�s report, and the experts are merely advisors."There is a sentence in the press release quoted below which states that WIPO "included in the final version extensive amounts of new text the
panel of experts never saw". The "extensive" in my paragraph above referred to the changes between what we saw in Geneva, and what we later SAW by e-mail. While there were some changes after the version we were e-mailed, I would not say that they were "extensive" although in at least one place they were significant. (It's hard to say, we didn't get a redlined copy....). Indeed, I wish that the changes had been *more* extensive, since few of my (rather tardy, due to travel) comments were reflected in the final draft.
This is, however, a relatively minor point. To my mind the major point remains that there have been very very few comments to WIPO, and the comment deadline is now 12 days away.
Again, I invite readers of this list to read RFC 3 and to read my commentary at http://www.law.miami.edu/~amf/critique.pdf and to send WIPO their comments.
I hope that after Singapore, more attention can focus on the WIPO process....
Ellen Rony wrote:
Press Release--
February 27, 1999
Domain Name Rights CoalitionContact:
Kathryn A. Kleiman
Co-Founder, Domain Name Rights Coalition
703/518-5184
Email [EMAIL PROTECTED]PRESS RELEASE
DOMAIN NAME RIGHTS COALITION APPLAUDS WIPO PUBLIC INTEREST ADVOCATE AND URGES
SMALL BUSINESS AND PUBLIC INTEREST GROUPS TO ATTEND WIPO MARCH 10 MEETING IN
WASHINGTON, DCAlexandria, VA-- The Domain Name Rights Coalition (DNRC) applauds the fifty-
page critique of the World Intellectual Property Organization (WIPO) domain
name plan released last week by Professor A. Michael Froomkin, the public
interest advocate on WIPO's "Panel of Experts" (reachable from
http://www.law.miami.edu/~froomkin/). Also, DNRC urges small businesses and
public interest groups to attend the last open meeting on the WIPO proposals,
just announced for March 10 in Washington, D.C.The WIPO proposal (now in its final draft), entitled "WIPO RFC-3 Interim
Report of the WIPO Internet Domain Name Process," proposes a new, global
system for resolving domain name disputes through mandatory arbitration panels
administered by WIPO."Professor Froomkin's critique proves what DNRC has long feared - that WIPO
remains insensitive to the problems of individuals and small businesses," said
DNRC President Mikki Barry.The Froomkin critique outlines in detail the flaws in the WIPO proposal,
including:* Beyond a few introductory phrases paying lip-service to the principles of
noncommercial use, the WIPO system fails to recognize the validity or
importance of the noncommercial uses of the Internet such as political speech,
consumer protection, and personal expression.* The WIPO system expands the protections enjoyed by famous marks beyond even
the most generous protections now recognized in any jurisdiction in the United
States, Europe or the rest of the world, and threatens to include intellectual
property rights that are not universally recognized, such as the European
"right of personality." This expansion would provide corporations and
politicians with powerful tools to silence critics whose right to self-
expression would otherwise be protected under national law.* The WIPO system would let commercially sophisticated businesses intimidate
individuals and small businesses into giving up domain names by threatening
them with potentially expensive arbitration under a system they do not
understand, in a language they may not know, outside the protection of their
national courts.* On the other hand, the WIPO system provides no protection to domain name
holders from frivolous challenges, no certainty as to how conflicts will be
resolved, and no limit to the number of challenges a domain name holder may
face.In addition to pointing to the flaws in the proposal, Professor Froomkin's
critique also points to serious flaws in the process. According to Professor
Froomkin, WIPO has made no effort to publicize these proceedings outside the
narrow world of trademark interests and those who follow trademark issues.Further, Froomkin speaks of the limited role WIPO permitted to its "panel of
experts" - on which Froomkin participated as a public interest advocate. WIPO
provided the experts with little time to review drafts (Froomkin speaks of
material left "under the door of our hotel rooms the night before our first
meeting"), and included in the final version extensive amounts of new text the
panel of experts never saw."Sadly, the experts at WIPO feel that they know what's best for everyone,"
said Kathryn Kleiman, General Counsel of the Domain Name Rights Coalition.
Kleiman saw a similar attempt to speed through a nearly identical system in
September 1997, when WIPO tried to set up "administrative challenge panels" to
settle domain name disputes. Complaints by DNRC and others to the Department
of Commerce, however, forced supporters of the administrative challenge panels
to back down and use a more open process. Kleiman adds: "There are people at
WIPO who believe they should be in charge of deciding Internet issues,
whatever the cost or 'collateral damage' to individual rights or small
businesses."The WIPO Request for Comments (RFC)-3 proposal is available at
http://wipo2.wipo.int/process/eng/processhome.html. Comments on RFC-3 are
due March 12 and should be sent to [EMAIL PROTECTED]DNRC urges organizations or individuals with a concern about the WIPO policies
to attend the final WIPO Panel of Experts meeting in Washington, D.C. at the
Department of Commerce on March 10, 1999. The sign up sheet is available at
http://wipo2.wipo.int/process/eng/processhome.html (under the
"consultations"button).Copies of comments should also be sent to the ICANN board which may this week
adopt controversial aspects of WIPO's RFC-3 -- prior to WIPO's final open
meeting and publication of its final version of the report.
A. Michael Froomkin WIPO-related matters: [EMAIL PROTECTED]
Professor of Law "It's warm here"
U. Miami School of Law , P.O. Box 248087
Coral Gables, FL 33124, USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
