[CRISP-TEAM] Observation on IPR

Izumi Okutani izumi at nic.ad.jp
Wed Aug 12 12:09:21 CEST 2015


At the call with CWG/IANAPLAN/ICG Chairs and ICG representatives from NRO and IETF, we have shared our observations on IPR for Sidley's memo.

It would help CWG to consider the scenarios to share our perspective in addition to Sidley's memo, so I have offered to have our observations written out.

The CWG Chairs think it would be helpful to have this shared at least 48 hours before their call, on 20th Aug. 
May I suggest we target to share with them by Mon 17th Aug? The earlier we share, the better chance they will have to discuss it online and prepare for the call.

This is a draft summary of bullet points. 
Please let us hear your feedback at the coming CRISP Team call.

* The concept behind our proposal
   - history and the root of the IANA functions
   - it was originally owned by USC, transfered to ICANN as a part of the NTIA contract
   - now that the transition from the NTIA will take place, it is logical to move the IPRs to the community with that transition
   - the root of the IANA functions comes from the IETF RFCs, so the IETF to hold the IPRs for the community. they have a decicated trust to manage the mark.

* Observations about Sidley's scenarios
   - Scenario 1: not consistent since RIRs are signing the contract with ICANN. ICANN would not be an organization independent of IFO
   - Scenario 2: not consistent since PTI is IFO itself
   - Scenario 3: consistent

* Observations on the way forward
   1. The IETF Trust
      - most logical holder as explained in the concept behind our proposal
      - would not create inconsistency with the numbers community proposal
      - no concern about stability as the trust exists and manages the mark today
      - it is a body which specialises in IPR management
      - the IETF Trust is neutral and declares public interests in the charter - quote the charter
      [Double check if the IETF Trust has declared that they are willing to let the operational communities to use the mark and the domain]

   2. An independent Trust
      - would not create inconsistency with the numbers community proposal
      - however still require discussions in the numbers community whether this is an acceptable solution, given it was not a specific option discussed
      - concerns about impact on timelines to agree on the criteria, composition at this point in the process, which leads to delaying of submission to NTIA until an agreement is reached
      - adds a lot of unpredictability may lead to stability, plus how do we ensure expertise, funding
      - The main concern with this option is the risk of delaying the overall process timeline 

   3. ICANN
      - not consistent with the proposal and require us to have discussions in the numbers community if CWG reaches consensus on this option
      - concerns on the impact to timelines by requiring the community to discuss and the ICG to make revision in the proposal, with the next round of public comment with new concept
      - would not have element of unpredictability as ICANN currently is the holder of the mark and the domain, no concern about the stability
      - As ICANN is not the source of these IPRs, the argument can be made that it is not the rightful owner of the IPRs and that they should be transferred to the community as part of this transition
      - ICANN does not have bottom up community based policy making mechanism relevant to all three IANA functions.

   4. PTI
      - not consistent with the proposal and likely to be difficult to get consensus to reconsider it, even if CWG reaches consensus on this option
      - makes no logical sense for PTI to own the mark, given it is a service operator delegated to provide the service

In addition to legal analysis, would like to highlight the rationale for the holder of IPR (in light of the history and root of the IANA functions), impact on timelines and stability per scenario, as consideration factors when comparing options. 

* Question to CWG
   - Would like to confirm the timelines for the CWG to reach conclusion about the IPR, and how this will be in line with the ICG process 
   - We need to confirm and hear from the CWG on your position, in order to take our next action. Otherwise, it is not clear what action or additional consideration is needed for the numbers community.
   - We would not want this to be the delaying factor to the transtion and look forward to hearing from the CWG's position in a timely manner, so any coordination if needed between the operational communities can move to the next step ASAP 
   - We are happy to be of assistance, should the CWG need any additional information or clarification from CRISP


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