Another Area Where TPP Will Cause Problems: Internet Domain Names
from the even-worse-than-we-thought dept
Discussions about the flaws in TPP are severely limited thanks to the extreme secrecy under which it is being negotiated. Essentially, the only areas we can sensibly analyze are where we have leaked chapters. One of these is the text dealing with things like copyright and patents, which we wrote about back in November last year. One aspect of this that has not been discussed much if at all concerns Internet domain names; Susan Chalmers has put together an excellent post exploring why TPP is problematic here too. The relevant section of the TPP leak (Article QQ.C.12:) is extremely short, and reads as follows:
1.56 In order to address the problem of trademark [VN/MX propose: geographical indication and trade name] cyber-piracy, each Party shall adopt or maintain a system for the management of its country-code top-level domain (ccTLD) that provides:
(a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation;
(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants; in accordance with each Party’s laws regarding protection of privacy and personal data.
2. [PE/SG/CL/AU/NZ/MY/BN/CA oppose; US/VN/JP/MX propose: Each party shall provide [VN: oppose adequate and effective] [VN propose: appropriate] remedies against the registration trafficking, or use in any ccTLD, with a bad faith intent to profit, of a domain name that is identical or confusingly similar to a trademark [VN/MX propose: , geographical indication or trade name].]
This section is therefore trying to address what it calls “cyber-piracy”; the brackets in the text above show the differing positions held by the negotiating countries. In her post, Chalmers explains:
A ccTLD is “an Internet top-level domain generally used or reserved for a country, a sovereign state, or a dependent territory,” for example .nz for New Zealand or .cl for Chile. There are 246 of them. These two letter domains come from the ISO-3166 country code list, and the institutions that manage them range from governmental to academic, commercial to non-profit, to management by an individual, and different shades in between. Initial delegations of ccTLDs were made in the 1980s and 1990s, generally to individuals connected to the Internet, often University personnel. ccTLD managers determine their own policies, “according to the relevant oversight and governance mechanisms within the[ir] country,” territory or geographical location.
Currently, each country can essentially run its own top-level domain as it wishes; TPP will change all that:
The TPP however would fix regulatory parameters, and limit the flexibility of the ccTLD in developing its own policies. By and through the Provision, the TPP collides with other ccTLD policy fora. It sets enforceable standards for ccTLD policies where such standards may not otherwise exist, or where the standards clash with pre-existing policy.
In her post, Chalmers runs through the details of how this will play out, and why it’s unlikely to be a good idea. She also rightly emphasizes:
such [TPP] requirements may come about not out of consideration for what is best for ccTLD management, but as a result of a trade. Countries’ concessions on IP issues may come as a result, for example, of their desire to export more sugar or beef to US markets.
In other words, the horse-trading that typically goes on during these negotiations may see a country’s autonomy in the key field of domain names sacrificed in the hope of boosting some local industry. It’s yet another example of how a trade agreement can have important implications in other areas — in this case, how the Internet is run. The analysis from Chalmers is valuable not only for alerting us to this fact, but also emphasizing once more why it is imperative for us to see the draft text of the agreement in order to find its other pitfalls, and then try to fix them.
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Filed Under: cctld, domain name, tpp, transparency
Comments on “Another Area Where TPP Will Cause Problems: Internet Domain Names”
Is this really that bad? Seriously.
1. it requires “a bad faith intent to profit”, which is pretty strong and limits it to bad actors (imo). two components bad faith and intent to profit (bad faith would be especially hard to prove though making it somewhat hard to prove).
2. chalmers can’t think of what circumstances this would cover but it seems clearly to be going after cyber-squatting, and not parody sites or something along those lines, due to requiring bad faith and intent to profit.
i dont know, i fully agree with all the criticism of TPP on its lack of transparency and am worried that on IP especially its permanently codifying policy/laws that need to be reformed/are outdated. but attacking things just because theyre in TPP that aren’t necessarily bad ideas and using the language of sovereignty (the same argument certain segments use to oppose things like the convention on the rights of the child) weakens, in my opinion, a very strong argument.
Re: Bad Faith
It seems to me that they have already acted in bad faith by trying to keep the agreement secret. Why would anyone trust them to act in good faith anymore?
Re: Re:
“it requires “a bad faith intent to profit”, which is pretty strong and limits it to bad actors (imo).”
No, it doesn’t, really. Since the “intent to profit” is often interpreted as being satisfied by simply having an ad, that’s a very, very low bar.
Sorry, to expand/simplify on my previous comment.
1. where ccTLD’s are state run/sponsored they are already subject to horse trading. so what does TPP change on this front?
2. if there is a dispute resolution process (which i assume no one is against having) then shouldn’t there be remedies? if not, what is the point of a dispute resolution process? the second part just requires remedies/penalties if the thing that caused the dispute was due to bad faith with an intent to profit. in other words isn’t this nothing more than requiring a second level, with enforceable remedies, if the entire dispute is determined to be due to bad faith (with intent to profit).
3. nothing in the first section requires remedies/penalties. which is why there is a second section limited to those that have both bad faith and an intent to profit. the question should be, is this an adequate limitation?
4. nothing in the text requires the “most effective remedies”. one proposal requires “effective” the other requires “adequate”. to me that still provides an amount of flexibility that chalmers (purposefully) overlooks.
5. why must it apply to ccTLD instead of all domain names? huh? isnt that a distinction without a difference? it applies to ccTLD’s because the system (as she described earlier) is not unified but done via different entities on a state by state level. in other words this is just the language needed to make it apply to all top level domains (of the parties).
6. the basic reason/distinction in s2 is to address those actors that have both bad faith and an intent to profit (the worst of the worst bad actors as it were). they arent addressed in part 1 and the point (to me) seems to be to prevent countries from pretending every dispute occurs with good faith (which like it or not is actually built into the systems of a not-small minority of 1st world countries you wouldn’t expect).
im sorry for the text blocks but as someone (working for a small ngo) who had to randomly deal with some IP issues, from the perspective of a small player (which i assume all of yall would support) i can tell you WHOIS records were absolutely essential for us being able to prove a bad actor (from a european country who denied infringement but couldnt explain why their employees were the WHOIS owners of the infringing site). standardizing and requiring WHOIS reporting is not a bad thing. adding an actual penalty (there would have been none in our case) for bad faith (could have been proven) actors who intend to profit (which they did) on their actions is not a bad thing (so says someone generally opposed to TPP).
Re: Re:
As the owner of a number of domain names, the WHOIS business is a particular sore spot for me. I don’t like having my address and phone number available so freely, I think it’s an obvious security risk and a violation of my privacy.
Fortunately, I can (and do) use proxies in the registrations to avoid revealing this data — would this agreement prevent that?
Re: Re: Re:
That depends on the ccTLD.
For my ccTLD (.br), even though the registry has my full address and phone number, the only information visible via whois is my full name, email, and CPF or CNPJ (CPF is Brazil’s tax identifier for individuals; CNPJ is the same for companies).
One more reason to prefer to register domains in my own country.
Free trade does not equal free market.
Why are so many afraid to compete on the quality of their product?