Australian Internet Domain Names Licensing Review

Greetings from the .au Licensing Rules Review consultation in Canberra. auDA is a not for profit organization with a legislated license to administer Internet domain names which end in .au 

auDA will be holding face to face consultations in Brisbane, Sydney & Melbourne, with online consultations as well. auDA is keen to get input. I offered to help by coming up with controversial proposals, such as dutch auctions for domain names: you want the name, you bid the most first, you get it. ;-)

I am here because one of the auDA board suggest I come along. I was a member of the "Internet Cabal" some decades ago, but have not had much to do with it since, apart from paying my domain registration.

There is no proposal for changes, but key issues the panel has identified in the discussion paper are:

1. Domain name monetisation
2. Allocation rules for com.au and net.au
3. Contested .au direct domain names
4. Bad faith and scam registrations
5. Complaint processes
6. Alignment of the .au Licensing Rules with global best practice
7. Anything else

As an example of an issue, companies can make money selling domain names for whatever they think the buyer will pay. Through auDA the public only gets a small fixed amount of this. Perhaps, like mining royalties, there should be a share, based on value, going to the public. 

Another tricky issue is that not-for- profit domain names can't be profited from. But exactly what is not for profit can be unclear. What was interesting was that those presented and others attended searched for analogies to use to understand the unfamiliar and abstract nature of domain names. One used was land speculating. Following this discussion my suggestion of dutch auctions doesn't seem so odd. Perhaps the stock markets providing another analogy.

There was a review in 2018 and changes were made. 

Sydney Top Level Domain Name

An interesting discussion at GovCampNSW, was over Sydney top level domain name. This is available, but there are numerous issues around its use: can Sydney Australia have exclusive use? What rules government it? How are commercial and community interests balanced? AUDA set up Community Geographic Domain Names for community domain name use. The Sydney top level domain might be used similarly. In my view the NSW government should purchase the domain name, at least as a defensive measure and perhaps turn administration over to local government. Some sub-domains would be valuable, such as hotels.sydney and others would need to be reserved for the obvious user, such as operahouse.sydney.

See also Carving up the web by Paul Wallbank.

Australians popular for settling domain disputes

Erik Wilbers, Acting Director of the World Intellectual Property Organisation (WIPO) Arbitration and Mediation Center in Geneva talked about

WIPO's Internet domain name arbitration process: Can it meet the challenges of the trademark and the cybersquatter?, today in Sydney. This was at the new Faculty of Law building at UNSW.

The center was established in 1994 and and administers IP treaties. WIPO's budget of CHF 531 M is largely self funded.

Domain names became valuable property and resulted in difficult legal disputes. The issues were between parties in different legal jurisdictions and involved issues new to the courts. In December 1999 brought in a simple dispute procedure for domain name disputes involving “cybersquatting”. The work is largely online, with no face to face hearings so far.

The complainant files and complaint with the provider. The provider notifies the respondent who has 20 days to reply. A panel is appointed and the decision is implemented within ten days if there is no court case. This makes for a lightweight process but still allowing courts to be used.

One aspect that surprised me was that companies use this process to stop those with “phishing” and other fake web sites. I assumed they would refer such matters to the police as these are crimes, but the arbitration process might be a lot more certain and faster.

There were 1924 cases in 2007 and the number is increasing (having dropped after the dot.com bubble). 1.76% were Australian, this percentage is increasing and is ninth place internationally. .Com registrations dominate the disputes, the next highest is France, UK, Germany, Switzerland, Spain and Italy. 2.31% of respondents are Australian. This is is consistent with Australia's ranking in Internet use.

The disputes are handled in the language of the registration. So 91% of cases are in English, but this is dropping with China in third place for respondents and increasing.

78% of domain names are .COM and newer TLDs are not making much of an impact. There have been very few disputes for tightly regulated domains such as EDU and INT. About half the .COM disputes are from the USA.

6.62% of WIPA panelists are Australian with 9% of disputes being heard by an Australian. The speculation is that Australians are preferred for panels, along with Canadians and New Zelanders, as they speak English are familiar with European and USA law but are independent of the USA and Europe.

83.72% of cases resulted in transfer of domain name control, .92% in cancellation of the name and 15.36% were denied (no change of control). This is likely to be due to the cases being relatively straightforward “cybersquatting” cases. 8% fewer cases resulted in a transfer with Australian panelists. It was conjectured that this because Australians were preferred for the more difficult, less clear, cases.

There is an online free index to decisions This is categorised and includes familiar names of famous people and companies. You can search for all the “sucks” cases, where there are web sites complaining about organisations. There are also statistics by jurisdiction (the most cited case is from Telstra.org). Chelsea and Westminster Hospital NHS Foundation Trust (Case D2007-1379) provides proposed criteria for making decisions on free speech.

WIPO also can handle .AU disputes. The protection for .AU is wider. There have only been a maximum of 16 cases in any year for .AU and is sixth place for national domain name disputes.

One comment made was that countries are tending to make it easier to obtain country domains, so as to encourage local registration. This might cause the domain names to become blurred. Also sub level domains are tending not to have as much meaning.

One issue was use of national names, such as .CM being used for advertising of misspelled .COM web addresses. Perhaps the .AU registrar should exploit this and put up an ad for any non-registered address. ;-)

There is a problem with free “domain name tasting” being used for advertising. Privacy options for registering domain names is making dispute resolution more difficult. Non-roman script domain names (sch as for China) will make the issues more difficult. I made the joke that Australia could handle this because our new PM speaks Mandarin.

Mr. Wilbers is on his way to Brisbane next. He can be contacted via Hon Neil Brown QC, Adjunct Professor of Law at Murdoch University.

Internet domain name trademarks and cybersquatting

Recommended seminar on WIPO's Internet domain name arbitration process: Can it meet the challenges of the trademark and the cybersquatter?, 5 December 2007, Sydney:

UNSW's Cyberspace Law and Policy Centre in assocation with the Hon Neil Brown QC, Adjunct Professor of Law at Murdoch University invite you to a free seminar in the 2007 Cyberspace Law and Policy Series:

Topic: WIPO's Internet domain name arbitration process: Can it meet the challenges of the trademark and the cybersquatter?
Speaker: Erik Wilbers, Acting Director of the World Intellectual Property Organisation (WIPO) Arbitration and Mediation Center in Geneva.

Date: Wednesday 5 December 2007

Time: 1:00 to 2:00 pm, including time for questions

Venue: Room 162, level 1, New Faculty of Law building , UNSW lower campus (near Roundhouse), Kensington, Sydney

Map: http://www.unsw.edu.au/maps/kensington.pdf (reference F8)

Abstract:

Trademark owners expect that their trademarks will be protected from what they regard as the unprincipled attempts of others to trade on their good name; others – not only "cybersquatters" in the strict meaning of the word – say that the internet should be free from restrictions.

Is this conflict just a piece of special pleading? How is this conflict resolved? Is the UDRP process adequate to resolve it? These and other questions will be tackled by the man who should know the answers – Erik Wilbers."

About the Speaker:

Mr Erik Wilbers is the Acting Director and the Head of the Domain Name Dispute Resolution Section of the Arbitration and Mediation Center of the World Intellectual Property Organization (WIPO), Geneva, Switzerland. The WIPO Arbitration and Mediation Center is an international provider of non-profit services for the out-of-court resolution of commercial disputes, in particular those arising out of technology and intellectual property transactions.

At the WIPO Center, Mr. Wilbers oversees the Center’s provision of resources to intellectual property stakeholders to help them achieve time and cost effectiveness in dispute resolution. Reflecting the growing importance of intellectual property, the Center manages an increasing number of arbitration and mediation cases filed by parties from different jurisdictions. The Center’s role ranges from the provision of clause advice to the appointment of appropriate neutrals and the safeguarding of the effiency of the proceedings.

WIPO cases mostly concern contractual disputes (e.g. patent and software licenses, trademark coexistence agreements, distribution agreements for pharmaceutical products and research and development agreements), but also include non-contractual disputes, for example in relation to patent infringement.

Bookings:

Entry is free, no need to book.
If you are coming from off campus, please RSVP