[CRISP-TEAM] [Reminder: Comment on SLA close today 2nd June ] Re: Call for comments from the CRISP Team Re: first draft review of the SLA v1.0

[Izumi Okutani]

Thank you Craig for clarifying the intention.
It is very helpful that his became clear.

I comment inline:

On 2015/06/03 14:07, Craig Ng wrote:
> Dear Izumi and colleagues
> 
> My apologies for not seeing these queries earlier. Here is my response
> (speaking for myself, from my own understanding, without having had the
> opportunity to consult my other RIR legal colleagues).
> 
>> ---
>> 12.1.1
>> To the extent that the Operator possesses rights in and to any
>> intellectual property, including but not limited to copyrights,
>> trademarks and service marks,
>> related to the performance of its obligations under this Agreement,
>> Operator does hereby assign and transfer any and all right, title and
>> interest in and to such intellectual property rights to the RIRs, their
>> successors, assigns and designee.
>>
>> Question:
>> Would it be a correct in interpreting that the intellectual property
>> rights transfer to RIRs, including trademarks and service marks?
>> If this interpretation is correct, we observe inconsistency from the
>> numbers proposal which says trademark and service marks to be transfered
>> to public domain, and not to the RIRs.
>>
>> # If my this interpretation is incorrect, no need to make this comment
>> ---
> 
> Izumi - the intention is that any successor operator will have the ability
> to continue to provide the services without restriction caused by a lack
> of intellectual property rights that are held by the first operator.

Yes I understood this and agree.

> This clause requires the first operator to assign and transfer all such
> necessary rights to "RIRs, their successors, assigns and designees". It is
> intentionally a broad clause, which means that the rights are to be
> transferred to a person nominated by the RIRs. This need not be (but could
> be) the RIRs. The IETF Trust, for example, would fall within the scope of
> the "RIRs' designees", by way of example.

I can follow the rationale if the IETF Trust designates its rights to the RIRs (for the numbers) and other entities for their own functions.
If it will be the RIRs which designates its rights to the IETF Trust, I'm not sure if I understand the rationale.


It seems consistent with the proposal if:

 ICANN  transfer: copyrights, trademark, service marks--> the IETF Trust 

And may be if apply designee model:

 ICANN  transfer: copyrights, trademark, service marks--> the IETF Trust designate --> RIRs/communinity (and other entities for names and protocols)
  

But are you saying :

 ICANN  transfer: copyrights, trademark, service marks--> RIRs designate --> the IETF Trust ?

I thought the IETF Trust is to cover all three functions, so they may be the designator to further desginate to the three functions.

At the end of the day, I'm basically fine as long as the RIRs and the community can continue to use them - Just trying to understand the logic and how it works.



> At the end of the day, some legal entity would need to hold such rights.
> So, this clause is intentionally broad, to ensure maximum flexibility.
> 
>> I personally still have a question about 11.1 as below.
>> However, since this is not covered in the numbers proposal, it probably
>> is not appropriate to cover it in the comment as the CRISP Team, to be
>> submitted to the NRO EC.
>> I am putting it here again, in case anyone from RIRs is able to clarify
>> this question but there is no need to reflect it as the CRISP review of
>> the SLA.
>>
>> 1.1
>> The Operator shall prepare a plan for this purpose and submit this plan
>> to the RIRs (18) months after the date of this Agreement.
>>
>> Question:
>> Would it be a correct interpretation that it is set after 18 months, to
>> give time for the Operator for the preparation?
>> If yes, it would be helpful to understand whether there is not a need to
>> set a limit of period in completing the preparation, in case it does not
>> get completed unless the period is specified.
> 
> The answer is yes - the idea is that the operator will have some time (way
> ahead of any contract renewal or expiration) to prepare a so-called
> "transition-out" plan.
> 
> I am not sure if I understand your follow-up question correctly Izumi. The
> clause 11.1 (to which I believe you intend to refer) is intended to
> require the operator to have a fully-completed plan within 18 months, that
> meets all the requirements set out in clause 11.1. It is not intended that
> the 18 month period is just a starting point for negotiations. Does this
> resolve your concern Izumi?

OK, understood.

So the operator must prepare the plan not later than 18 months.
I read it as *after* 18 months from the text thus my second question.
Your explanation resolves my concern. 


In the way I read English, the current text seems to read as after 18 months but if that is how it is expressed legally to describe what you clarified, I have no concerns.

Thanks Craig.


Izumi

> I hope this clarifies your queries.
> 
> Regards
> Craig
> 
> _______________________________________________________
> Craig Ng
> General Counsel, APNIC
> e: craig at apnic.net
> p: +61 7 3858 3152
> m: +61 416 052 022
> www.apnic.net
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