The Intellectual Property Constituency’s draft report on trademark issues is now available for comment.

The draft report was put together behind closed doors, which would appear to go against the normal policy development process at ICANN, which is quite worrying.

Its contents, however, are even more disturbing.

While reading the 48 page document, which is littered with acronyms and terminology that would make your head hurt, it is a worthwhile exercise if you have any interest in the development of new Top-Level Domains (TLDs).

From a registrant perspective the most disturbing part of their report is that dealing with WHOIS. The Intellectual Property (IP) people seem to have zero interest in registrants’ right to privacy. Under EU law, for example, I can register a domain as a private individual in most European ccTLDs (including .eu) and have some level of privacy. Not so the case with the Implementation Recommendation Team’s (IRT) proposals:

After carefully consideration, the IRT believes that the provision of WHOIS information at the registry level under the Thick WHOIS model is essential to the cost?effective protection of consumers and intellectual property owners. For this reason, the IRT recommends that ICANN amend the proposed Registry Agreement to include an obligation that all registry operators for new gTLDs must provide registry?level WHOIS under the Thick WHOIS model currently in place in the .info and .biz registries.

And if that wasn’t enough, they also want to centralise Whois:

In addition, the IRT recommends that ICANN immediately begin to explore the establishment of a central, universal WHOIS database to be maintained by ICANN

While that may not have much impact on registrants at one level it could have an interesting impact at various other levels of the system (e.g. syncing of data).

The timelines surrounding the draft report are also a bit confusing.

The comment period was opened on a Friday 24 April 2009 and closes one month later, but you only have until May 6th to submit comments for inclusion in the final report! So you don’t really have the full 30 day comment period you’d be expecting and with the May bank holiday affecting most countries, the period is even more reduced.

George Kirikos, in an email submission to the comment forum, goes into some detail on the issues surrounding both the IRT’s composition, behaviour and the timeline for comments:

We object to the extremely short comment period for this report, and the method by which it was drafted.

It was released at the end of the day on April 24, 2009 (a Friday) We are told that “those wishing to have the IRT consider their comments in connection with its final report should submit comments by 6 May, 2009.” Given that May 1st is a holiday in a large number of countries, this leaves many people with only 7 (seven) or at best 8 (eight) business days in which to read the report, consult with colleagues, and write a coherent response to a lengthy document.

Given the IRT’s extreme lack of transparency and its very narrow representation of interests (i.e. it was not an open GNSO workgroup or task force where any stakeholder could join; there was no public mailing list archive or MP3 recordings/transcripts of meetings), it is unclear whether any responses submitted by the May 6 deadline will even be considered, especially given that detailed comments and recommendations made to the DAG v1 and v2 reports did not receive any apparent consideration by the committee in this draft report. There is no public audit-trail of any discussions leading up to this report, but it instead appears to be a rehashing of certain “wish list” items by a narrow few in the community, instead of a balanced proposal representative of all stakeholders.

The IRT is working within artificial deadlines imposed by the ICANN Board in its March 6th resolution. We recommend that the IRT go back to the Board to advocate that these artificial deadlines need to be rethought. Given the comments overwhelmingly opposed to new gTLDs both in the first and second versions of the DAG (with the 2nd comment period ending only last week), ICANN has not justified that the gTLD program should go forward in any form, and not justified the colossal misuse of time that could be better spent on important issues such as DNSSEC, IPv6 and IDN ccTLDs, and fixing problems in existing gTLDs. It is our hope that the NTIA/DOC/DOJ will provide ICANN with far clearer and direct guidance in this regard, as it is clear to us that certain minority interests have captured the agenda at ICANN and are setting its plans to the detriment of the public.

There is no “pressing need” that a final report be delivered by May 24, 2009, especially given that the Sydney meeting begins on June 21, 2009. A rushed job will not lead to a solution that has consensus support, and forming consensus is ICANN’s mission. If a consensus cannot be reached, ICANN has to realize that the matter might be a threshold issue that must lead to continued study and work, rather than proceeding with half-baked solutions over the objections of a large number of stakeholders.

We note the comment period for version 1 of the DAG closed on January 7, 2009 (after 76 days), and allowed for translation into multiple languages before the end of the comment period. Analysis and summary of those comments by ICANN staff were released to the public on February 18, 2009, namely 42 days later (at which time version 2 of the DAG was also released). We would expect the IRT, if it’s to even have a remote possibility of reaching a global consensus, would need similar time periods. At a minimum, the time periods should be shifted so that public comments are due 2 weeks before Sydney, with analysis of those comments to be released just before Sydney, and discussion to take place during Sydney. A final report would then be released a few weeks after Sydney, with a further comment period on that final report.

In conclusion, we look forward to the IRT’s realization that the current schedule is needlessly rushed, and requires adjustment. We expect that the IRT will make in the immediate future a clarifying announcement with a reasonable time frame for comments if it expects to maintain the goodwill of the community in its ongoing efforts to reach a consensus. We also expect that they will positively respond to the request for public archives of mailing lists and MP3 recordings/transcripts in order to improve transparency.

So what are the options for members of the ICANN community? How is it possible that a report with as much impact as this could be prepared in practical secrecy? (The IRT states clearly that its members were forbidden to discuss the proceedings.)