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Unforeseen Legal Consequences of Implementing Internationalized Top-Level Domains

The Internet Corporation for Assigned Names and Numbers (ICANN) is currently analyzing technical and policy implications regarding the introduction of Internationalized Top-Level Domains (IDN TLDs) into the root. This is an important step in the continued evolution of the Internet by enabling language communities of the world that write non-Latin and extended Latin scripts (i.e. use languages that cannot be directly represented with the US-ASCII character set) to utilize their languages on the Internet. To date, the ICANN staff and Board have elected to focus their policy discussion primarily on country code top-level domains (ccTLDs) through a fast-track ccTLD only IDN initiative.

While the IDNC Working Group (IDNC) has made constructive progress on proposing a framework for the introduction of an initial set of IDN TLDs, the approach taken by the IDNC from a legal perspective is fundamentally flawed. The IDNC has failed to recognize that an IDN equivalent of country name involves much more than making a mere linguistic determination as to which IDN string is “meaningful” in a particular “official language”, but also involves a number of international legal determinations as well, with far reaching legal implications. ICANN Staff must properly consider, reference and incorporate the comprehensive body of work that has been developed by the World Intellectual Property Organization (WIPO) in this area prior to making any determination on how it proceeds with respect to the adoption of the IDNC Final Report.

The paper, “Navigating Unforeseen Legal Consequences Involving the Implementation of Internationalized TLDs,” [see download link below] will provide an analysis into the legal ramifications of certain recommendations in the IDNC final draft, and propose an alternative model founded upon well established and internationally recognized principles of law. More specifically, this paper proposes that the ICANN Board request WIPO to investigate the possibility of developing an administrative process based upon Article 10bis of the Paris Convention. If WIPO determines that such an administrative process is appropriate, then it should recommend to the ICANN community a set of policies, rules and procedures to implement such a system. In drafting the policies, it is recommended that WIPO propose guidelines seeking the guidance from internationally recognized linguistics bodies, such as UNESCO, to aid in the administrative decision process.

The fundamental premise of this paper is that IDN TLDs need to be introduced as soon as feasible. The recommendation to involve WIPO and UNESCO is made with the belief that their involvement will not only ensure the introduction of IDN TLDs is done correctly but can also happen in a very timely manner as outlined in this paper.

To download “Navigating Unforeseen Legal Consequences Involving the Implementation of Internationalized TLDs,” in its entirely, click here.

The author is regularly engaged by registries (both ccTLD and gTLD) in a wide range of policy and operational matters. However, this paper is written in an individual capacity, and does not necessarily represent the viewpoints of any past, current or future clients, although I do readily acknowledge a keen interest on behalf of many within the ccTLD and gTLD community to expedite the IDN TLD process.

By Michael D. Palage, Intellectual Property Attorney and IT Consultant

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Michael, very good paper, I Elisabeth Porteneuve  –  Jun 22, 2008 5:22 PM

Michael, very good paper, I agree with a lot of your analysis.

It is NOT in the interest of member States, neither Internet community, nor ICANN to develop ad hoc solutions related to very political issue of country names.
It is a mistake of the IDN WG to raise expectations about “fast track” relying on undefined “Linguistic Experts Advisory Panels” (one shall never forget that more than 120 official administrative languages are used by 192 sovereign countries, and that nobody speaks or write more than very few languages - that facts demand for prudent coordination).
I have been attending the IDN WG meeting yesterday, June 21st 2008, in Paris, to listen and learn more - I was in the silent audience.
I learnt that “pressing needs” mean a candidate IDN registry is ready to apply - which is totally different from what one may expect from the used words. Asked for a change, the IDN WG Chairman declined (*).
After the meeting I have asked two persons from Asia if their countries need the IDN ccTLD immediately - and got two “no” answers.
I have asked who will maintain the list of “short domain for a country”, ICANN ? ISO 3166 ? UNESCO ? The person I asked that question did not consider it’s an issue.
I learnt that for some attendees the UN list of country names, long version or short version, are too long: some Chinese, Korean and Japanese would like to have just one character in their scripts as a short domain for a country. Cyrillic script is very capable to give 2 letters per country, exactly like Latin. I guess the same would be true for at least alphabet based scripts, such as Arabic. Nobody from the IDN WG stressed out that the most complicated is the coordination between all countries using the same or similar scripts, just to be sure homonyms are avoided, governments are happy, and the best global compromise is reached. As a matter of fact not each and every country has an alpha-2 ISO 3166-1 code very close to its name - that has always been mathematically impossible.

(*) Incidentally the translation of “pressing needs” to French gives “besoins pressants”, which is a term used when one rush to the toilets.

There is already a TLD homonym in common use Michael Dillon  –  Jul 1, 2008 3:30 PM

The TLD .py is used by Paraguay and the TLD .ru is used by Russia. However, in Russia, the Cyrillic script is often used in advertising URLs and readers know that one must transliterate the letters into the Latin alphabet. This kind of URL displays the two Cyrillic letters which are identical to .py but, of course, they are referring to Russia's .ru, not Paraguay's .py. One wonders whether it is possible to reserve the 3 letter ISO country codes for IDN use or is there already a conflicting TLD?

Michael Dillons wonders whether it Jaap Akkerhuis  –  Jul 1, 2008 9:49 PM

Michael Dillons wonders

whether it is possible to reserve the 3 letter ISO country codes for IDN use or is there already a conflicting TLD
The is already at lease one conflicting TLD. The alpha-3 code COM is used for the Comores (If I remember correctly).

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