"If at first you don't succeed, try and try again." A famous saying, that some within the ICANN world seem to think actually means: "if at first you don't get what you want, try and try again."
The basic premise of the ICANN system is simple and fair: get all parties to work together, give everyone an equal voice, and act on whatever consensus emerges. ICANN insiders have coined this the "multi-stakeholder, bottom-up, policy development process".
I think of it as next gen governance. A new way to let everyone in the room, not just an elite few. Perfect? Of course not. Pioneering? Absolutely!
But to some, this system has a major flaw: it doesn't always allow them to get their way. Because ICANN policy making is based on consensus, any progress has to rely on some measure of give from parties. It can't all be take.
So what to do when the outcome isn't exactly what you wanted? Most accept the result and console themselves with the knowledge that doing so strengthens this new governance model. But some never stop looking for any opening to push through their views. Even though by doing so, they are actually endangering the system as whole.
My way or… my way!
Take ICANN's Business Constituency (BC) and Intellectual Property Constituency (IPC). With a new ICANN CEO taking office at the Toronto meeting in October, both groups felt they had to take another shot at the Rights Protection Mechanisms (RPMs) that have been developed for the new gTLD program through years of community work.
On October 17, halfway through the Toronto meeting, they sent ICANN a letter with a set of "improvements" to these RPMs. A response from the New gTLD Applicant Group (NTAG) sent a few days later, makes it clear why the IPC/BC approach is wrong. "RPMs are not a new issue, nor are the specific BC and IPC proposals," wrote NTAG. "The ICANN community has struggled with the issue for many years. After different — and numerous — processes and negotiations, including the Implementation Recommendation Team (IRT), the Special Trademarks Issues Working Team (STI), various draft guidebooks, and the GAC-Board consultations, the ICANN Community and Board agreed, through a bottom-up consensus based process, to a balanced policy of mandatory requirements for the protection of trademarks in the final Guidebook."
Still, never ones to let past consensus decisions get in the way of what they want, the BC and the IPC opted to have another crack at this with new ICANN CEO Fadi Chehadé. And for a time, it seemed they had succeeded.
Keep on biting that apple
To discuss implementation details of the Trademark Clearinghouse (TMCH), one of the RPMs designed by consensus-driven policy development for the new gTLDs, Chehadé called a special meeting in Brussels on November 1 and 2.
Now, whilst reviewing the TMCH's implementation with a view to get this finished asap is very positive, it turns out that the meeting agenda also included a "review of the IPC/BC proposal". This was confirmed by Chehadé himself in an email sent to William Drake of ICANN's Non Commercial Stakeholder Group (NCSG) and published by the Internet Commerce Association.
As NCSG's Robin Gross says on her blog: "NCSG supports the positions taken by NTAG in its 24 October 2012 letter to ICANN and notes its succinct observation that 'these last-minute policy recommendations amount to just another bite of the same apple that has already been bitten down to its core.'"
Gross goes on to say: "NCSG also supports the statement of the Registrars Stakeholder Group (RrSG) in response to the IPC-BC proposals for increased RPMs, and we agree with RrSG's analysis that 'the additional RPMs circulated in Toronto represent a change to the policy and not the implementation of the TMCH.'"
Defend the model
What ends up coming out of the Brussels meeting remains to be seen. Fadi Chehadé's first weeks in the CEO seat have been very successful. He has given clear signs that he gets the multi-stakeholder model and cares about it deeply.
If that is true, he will treat the IPC/BC proposals as policy issues that should be worked through the policy development process, not as implementation fixes that should be ironed out behind closed doors, in a small meeting in Belgium that not many people even knew about.
By doing that, Chehadé would send a strong signal that on his watch, attempts at knocking the multi-stakeholder model will not work. And in so doing, he will perhaps convince those with a I-must-get-what-I-want-at-any-cost attitude that working within the ICANN governance system, not around it, is the best way.
By Stéphane Van Gelder, Chairman, MILATHAN
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