The At-Large Advisory Committee has posted draft comments on the WIPO2 recommendations. In the draft, we raise concerns about the idea of implementing these recommendations through the ICANN process, for two main reasons: 1. What WIPO recommends seems to amount to the creation of new rules which are not backed by existing law — even the WIPO2 report makes that observation. That is, in order to follow WIPO’s recommendations, ICANN would have to overstep its mission and get into the law-making business. 2. The WIPO recommendations seem to call for a dispute resolution process which would (unlike the UDRP) not be subject to review in regular court. Once more, this sounds like a kind of law-making for which the ICANN process is not suitable.
As a conclusion from these concerns, we support the GNSO Council’s advice to separate discussion about the WIPO recommendations from UDRP review. We also urge the board to ensure that any policy-development process addressing the WIPO recommendations stays within the confines of ICANN’s mission, and is limited to implementing existing legal consensus (as opposed to creating “new law”).
In an Annex, we provide some preliminary observations on some of the individual recommendations’ merits.