Re: The Revised Application of the Intellectual Property Constituency ("IPC") for recognition as the organization to serve in the role of, and represent the interests of, the Trademark, Intellectual Property and Anti-Counterfeiting Interests Constituency of the DNSO
 
 

Dear ICANN Board Members:

Set forth below is the Revised Application of the Intellectual Property Constituency (respectively, "IPC" and "IPC’s Application") for recognition as the organization to serve in the role of, and represent the interests of, the Trademark, Intellectual Property and Anti-Counterfeiting Interests Constituency (hereinafter, referred to as the "IPC") before ICANN’s Domain Name Supporting Organization ("DNSO").

The IPC’s Application represents a merger of the applications submitted by Michael Heltzer and Bret Fausett, on behalf of their respective groups. Jay Fenello represented the application submitted by Bret Fausett. The elected interim officers and DNSO Names Council representatives of the IPC (as presented in the New York Document) who were present in Berlin, represented the application submitted by Mike Heltzer. These representatives of their respective applicant groups agreed to merge their applications at the May 25, 1999 meeting held in Berlin during the time set aside by ICANN for the meeting of constituency applicants. Each applicant group was seeking recognition from ICANN’s Board to serve in the role of the constituency category, entitled "the Trademark, Intellectual Property and Anti-Counterfeiting Interests Constituency." (It is respectfully requested that ICANN rename this constituency the IPC for simplicity of reference.)

The present document, entitled the IPC Application, or "Berlin Document," has been modified from the New York Document, submitted by Mr. Heltzer on May 5, 1999 in the following manner: (1) The New York Document was renamed, the "Berlin Document," the title Background at I was re-titled, "Background and History," and I.D was modified to make appropriate verb tense changes and I.E. was added to reflect the additional applicable history for this document; (2) The section on the Mission Statement and Purpose, at II.B.1, was modified to state, in relevant part, " . . . and to ensure that these views and interests [i.e., of the IPC constituents], including minority views, reflected in the recommendations by the Names Council . . .;" (3) The section on Organizational Structure and Interim Decision Making, at III.F.1.c.iii, expands the mandate of the Interim IPC Council to add "and more fully exploring membership criteria and weighted voting;" (4) the section on Voting, at VI.A now includes explicit references to the nomination process, so that this section reads "nomination and voting" in two places and at the end thereof, the following sentence was added: "This structure [i.e., the nomination and voting structure] shall endeavor to ensure the best likelihood of geographic diversity in the Names Council Representatives.;" and, (5) the list of members as indicated in the text and the Appendix has been changed to add the Domain Name Rights Coalition ("DNRC") as an IPC member and in addition, the names of the District of Columbia Bar Association ("DCBA"), the International Federation of Phonographic Industry ("IFPI"), International Property Law Association of Chicago ("IPLAC") , the New York Intellectual Property Law Association ("NYIPLA") and the Recording Industry Association of America ("RIAA"), were added with an (*) to indicate that these organizations have submitted formal written requests to the undersigned. It should be added here that we have also received many less formal requests and inquiries concerning membership and expect to receive even more if and when the IPC’s Application is accredited. If and after the IPC is accredited, the IPC Council will begin review of membership applications to join the constituency.

Lastly, we note that Eric Brunner submitted an application to ICANN on behalf of the Indigenous Intellectual Property Constituency. Although Mr. Brunner was not present in Berlin, he contacted and spoke with some of the undersigned by telephone yesterday in Berlin. While we have not been able to complete our discussions with him due to the press of time, we are prepared to work with him and the interests that he represents within the IPC.

Subject to accreditation by the ICANN Board, the IPC is ready to begin its operations.

Respectfully submitted by the IPC representatives attending the ICANN Berlin meeting,

Jonathan Cohen, FICPI, jcohen@idealaw.com
     President of the IPC, and Interim Names Council Representative
Mike Kirk, AIPLA, mkirk@aipla.org
     Treasurer of the IPC
Joan McGivern, ASCAP, jmcgivern@ascap.com
     Secretary of the IPC,
Ted Shapiro, (tshapiro@mpaa.org) by proxy for Tod Cohen, MPA, tcohen@mpaa.org,
     Interim IPC Names Council Representative
Susan Anthony, INTA, Susan.Anthony@wcom.com,
     Interim IPC Names Council Representative
Dr. Ian Kaufman, AIPPI-US
Helmut Sonn, Honorary President, FICPI
 

Attachments: Berlin Document, with IPC list
 
 

1. Background & History of the Berlin Document

1. This document is intended to set out a framework for the structure and procedural rules of the Intellectual Property Constituency ("IPC") of the Domain Name Supporting Organization ("DNSO"). The drafters of this document include members of many of the major international IP organizations which collectively represent tens of thousands of IP right holders, IP practitioners, business owners and domain name holders around the world and who recognize the need to reach out to other such entities and persons who share these interests to participate in the further refinement of this document.

2. The organizations submitting this document seeking recognition and accreditation as the IPC of the DNSO ask the ICANN Board to be aware that:

1. Since the Singapore meeting, efforts to form the IPC have met with broad based, global support from a number of leading international and regional organizations;

 
2. Although many organizations were invited, time, distance, and other constraints only permitted the organizations submitting this document to presently commit;

 
3. However, these organizations intend to diligently work to expand the IPC’s membership so that it will be as representative and diverse as possible;

 
4. To that end, an Interim set of officers IPC has been elected whose express mandate is:

3. The Toronto meeting, held on March 18, was organized by FICPI (Federation Internationale des Conseils en Propriete Industrielle) to attract as many as possible IP organizations, and other interested parties to initiate the process mandated by the ICANN Board at its meeting in Singapore in early March, when it advised the international IP community to begin work immediately on the organization of an IP Constituency for the DNSO. The goal of that meeting was to bring together an initial group of international IP organizations that was as broadly representative of the various facets of IP interests as possible given the short time frame, and which group would collectively have the resources necessary to accomplish two things:

2. To set up the consultative process itself for the inclusive, international discussion required to formulate the IP Constituency proposal to be submitted to the ICANN Board for approval at its next meeting in Berlin on May 27, 1999. The result of the Toronto meeting was the "Toronto Document," which was intended to reflect the agreement reached by the members of the Toronto group in respect of the foregoing two goals.

4. The next step in the IP Constituency formation process was the New Zealand meeting, held on April 12-13, where the Toronto document was discussed and openly debated among the participants, and a revised draft that reflected the Wellington consultative meeting (the "Wellington Document") was then prepared, circulated and posted on the ICANN website (www.icann.org) for international consultation that resulted in a third meeting held on May 4 in New York City. By this point the views of interested IP stakeholders were repeatedly solicited such that the document coming out of the New York consultative meeting and submitted to ICANN for approval as the "New York Document," and was believed to adequately reflect the interests of a significant number of IP stakeholders. An operational IPC structure with duly elected interim governance is in place for presentation to ICANN for accreditation.

 
5. The present document represents a merger of the applications submitted to ICANN by Michael Heltzer in the form of the New York Document and of Bret Fausett, on behalf of their respective groups. Jay Fenello represented the application submitted by Bret Fausett. The elected interim officers and DNSO Names Council representatives of the IPC (as presented in the New York Document) who were present in Berlin, represented the application submitted by Mike Heltzer. These representatives of their respective applicant groups agreed to merge their applications at the May 25, 1999 meeting held in Berlin during the time set aside by ICANN for the meeting of constituency applicants. Each applicant group was seeking recognition from ICANN’s Board to serve in the role of the constituency category, entitled "the Trademark, Intellectual Property and Anti-Counterfeiting Interests Constituency." The merged application is referred to as the "Berlin Document." It includes a request to the ICANN Board to rename the applicable constituency name to the "IPC" for simplicity of reference.

 
2. Mission Statement and Purpose

1. The IPC will form an integral part of the DNSO according to Article VI-B, Section 3 of the ICANN Bylaws.

 
2. The purposes of the IPC are to:

 
1. Represent the views and interests of users of intellectual property world-wide with particular emphasis on trademark, copyright, and related intellectual property rights and their effect and interaction with the Domain Name System (DNS), and to ensure that the views, including minority views, are reflected in the recommendations made by the Names Council to the Board of ICANN; and

 
2. More particularly, to review and raise all IP matters including any proposals, issues, legislation, or otherwise, which may affect intellectual property, particularly as it interfaces with the DNS, and to provide to the DNSO and the ICANN Board timely and expert advice before it must make any decision or take any position thereon.

 
3. Organizational Structure and Interim Decision-Making

 
1. The IPC shall consist of an elected IPC Council ("IPCC") drawn from the member organizations meeting the qualifications under Section IV and observers also referred to in Section IV.

 
2. Three members of the IPC shall be nominated by and elected from the IP member organizations to represent the constituency on the Names Council of the DNSO. No organization shall have more than one of its nominated representatives on the Names Council at one time.

 
3. No person may serve as a member of the Names Council for more than two successive terms. A term of service as an Interim representative of the IPC to the Names Council shall not be considered a successive term for the purposes of this section.

 
4. The IPCC shall be the governing body of the IPC and shall be composed of one representative of each member organization that will be responsible for the following.

 
1. Reviewing applications for membership in the IPC.

 
2. Carrying out through members of the IPCC or appointment of volunteers, the administrative functions associated with the operations of the IPC and the IPCC, including the arrangement of meetings, taking of minutes, maintenance of an appropriate mechanism suitable for facilitating contact and dissemination of information among all members of the IPC and other secretariat functions.

 
3. Formulating membership consensus on policy issues for the purpose of advising the IPC representatives on the Names Council.

 
4. Reaching out to any other interested IP groups, IP organizations, or individuals with IP interests around the world and encouraging them to participate in the IPC.

 
5. Developing mechanisms for the nomination and election of representatives to the IPCC and Names Council from among the members of the IPC, and modifying same from time to time as may be required to ensure fairness and to reflect the current needs of the IPC.

 
6. Assessing and collecting membership fees.

1. Interim IPCC:

1. IP organization members as of May 25, 1999 are: ABA-IPL, AIPLA, APAA, ASCAP, BMI, DNRC, ECTA, FICPI, IIPA, INTA, MARQUES, and MPA, and by written request, RIAA, DCBA, IFPI, IPLAC and NYIPLA. Others have expressed interest in applying for membership assuming this application is accredited.

 
2. Subject to accreditation by the ICANN Board, three Interim representatives from the organizations of the IPC were elected to the Names Council on May 4 and intend to serve only until such time as a more formal nomination and voting structure, fully complying with any applicable requirements of the DNSO and the ICANN Board, is established by the elected IPCC which first replaces the Interim IPCC; the Interim representatives of the IPC to the Names Council shall be replaced in that manner on or before May 31, 2001 at the discretion of the IPCC.
 
4. Membership

 
1. In General
 
1. The IPC shall consist of organizations committed to the advocacy and development of intellectual property (including trademarks, copyrights, and patents) as fundamental components of meaningful commercial activity in the national, regional, and global realms, and, more particularly shall:

1. be primarily and substantially involved in the field of intellectual property; and

 
2. have a demonstrable international perspective; and

 
3. make a substantial contribution through its members or otherwise to the field of intellectual property.

 
2. Additional Factors

 
1. In determining eligibility for membership, the following additional factors shall be considered:
 
1. the number of members in the organization;

 
2. the international / geographic diversity of membership;

 
3. the extent to which the organization is representative of a particular industry or industry segment;

 
4. the organization’s standing before international bodies, including, but not limited to WIPO; and

 
5. the nature and structure of the organization.

 

 

The IPCC shall take into account the foregoing in determining whether the applicant for membership is sufficiently involved in and representative of the intellectual property community to qualify for membership.
 
3. Comments and Participation from All Interested Parties
  In addition, the IPCC will actively invite and encourage comments and participation in meetings from all interested parties, including individuals, other Supporting Organizations, and other DNSO constituencies through a consultative observer mechanism and periodic online and face-to-face meetings.  
4. IPCC Discretion

The IPCC has the discretion to admit, refuse, or expel any organization where on reasonable grounds, it feels it is in the best interest of the constituency to do so.
 
6. Funding
  When deemed necessary by the IPCC, appropriate fees for membership in the IPC shall be set.  
 
7. Voting

1. After fulfilling its obligations under III (C)(4), the nomination and voting structure is to be reviewed and determined by the Interim IPCC after consultation with the full membership. The nomination and voting structure shall be open, fair and not subject to capture. This structure shall endeavor to ensure the best likelihood of geographic diversity in the Names Council Representatives.

 
2. No business of the IPC or the Interim IPC shall take place without the representation of at least 40% of the members present.

 
1. Observer Status and Liaison with other Constituencies / Supporting Organizations

 
1. In the interest of complying as fully as possible with the mandate of the IPC as set out in Section II, the IPCC shall:
 
1. Actively seek out input and advice from those organizations, individuals, or others that are not eligible for membership in the IPC, on the basis of observer status, and such organizations, individuals, or others shall be encouraged to join formally the IPC as observers and, upon joining, shall be entitled to attend and participate in open meetings of the IPC’s membership.

 
2. Establish a liaison mechanism whereby it obtains input from the other DNSO constituencies and the other Supporting Organizations, and where possible, actively work towards consensus building.
 
Commentary: It is the intention of the organizations that the IPCC reach out to the other constituencies of the DNSO, the other SO’s, individual organizations (governmental, the Bar associations, public interest, technical/Internet, and business groups) and broadly to the public, encouraging their participation in and commentary on the discussions and recommendations of the IP Constituency. It is hoped that in this manner, the IP Constituency, while representing the international IP community, as it should, will have the benefit of the information and advice of a much broader cross-section of the public in reaching the decisions it communicates to the Names Council for consideration by ICANN.

IP Constituency Interim Officers
 

President	Jonathan Cohen	FICPI	jcohen@idealaw.com
Executive V.P.	Steve Metalitz	IIPA	metalitz@iipa.com
V.P.	David Tatham	ECTA	tathan@dial.pipex.com
Treasurer	Mike Kirk	AIPLA	mkirk@aipla.org
Secretary	Joan McGivern	ASCAP	jmcgivern@ascap.com

IP Constituency Interim Names Council Representatives
 

Tod Cohen	MPA	tcohen@mpaa.org
Jonathan Cohen	FICPI	jcohen@idealaw.com
Susan Anthony	INTA	Susan.Anthony@wcom.com

All appointments subject to accreditation by the ICANN Board.
 

IP organizations of the IPC as of May 25, 1999 are:

American Bar Association - Intellectual Property Law Section - “ABA-IPL”
American Intellectual Property Law Association - “AIPLA”
Asian Patent Attorneys Association - “APAA”
American Society of Composers, Authors, and Publishers - “ASCAP”
Broadcast Music, Inc. - “BMI”
District of Columbia Bar Association – (“DCBA”)(*)
Domain Name Rights Coalition - “DNRC”
European Communities Trade Mark Association - “ECTA”
Federation Internationale des Conseils en Propriete Industrielle - “FICPI”
International Federation of Phonographic Industry – “IFPI”(*)
International Intellectual Property Alliance - “IIPA”
International Property Law Association of Chicago (“IPLAC”)(*)
International Trademark Association - “INTA”
Association of European Trade Mark Owners - “MARQUES”
Motion Picture Association - “MPA”
New York Intellectual Property Law Association (NYIPLA”)(*)
Recording Industry Association of America – “RIAA” (*)

(*) By written application to be reviewed by IPCC
 
 

American Bar Association Intellectual Property Law Section (“ABA-IPL”)

The ABA-IPL is composed of approximately17,000 members in the United States and abroad.  Its members are patent, trademark, and copyright attorneys.  The ABA-IPL is a leading voice in the field of intellectual property.
 

American Intellectual Property Law Association (“AIPLA”)

The AIPLA is primarily a U.S. based bar association with nearly 10,000 members engaged in private and corporate practice, in government service, and in the academic community.  The AIPLA represents a wide and diverse spectrum of individuals, companies and institutions involved directly or indirectly in the practice of patent, trademark, copyright, and unfair competition law, as well as other fields of law affecting intellectual property.  The AIPLA has active members in more than 20 countries as well as over 400 foreign affiliates from some sixty countries and monitors and comments on developments in IP law and practice in commercially important countries around the world.
 

The American Society of Composers, Authors and Publishers (“ASCAP”)

ASCAP is the oldest musical performing rights society in the United States and holds the largest repertory of U.S. copyrighted musical works.  It is a voluntary membership association with more than 82,000 members, representing owners of all genres of musical works.  ASCAP is affiliated with fifty-eight foreign performing rights societies. ASCAP licenses on a non-exclusive basis the non-dramatic public performances of the repertory of its members and its affiliated societies to those individuals and entities which desire to make public performances of that music.  ASCAP’s licensees include, but are not limited to, commercial and non-commercial television and radio stations, concert halls, sports arenas and teams, hotels and airlines as well as colleges and universities and websites.  ASCAP has always taken, and is committed to taking, an active role in representing and defending the public performance rights of its members internationally and domestically.  ASCAP’s President and Board Chair, Marilyn Bergman, just completed four years of service as the President of “CISAC” (the Confederation Internationale de Societies de Auteurs et Composeurs), which is an international confederation of almost all national performing rights organizations, and ASCAP’s general counsel, Fred Koenigsberg, served as one of the private sector representatives to the WIPO Diplomatic Conferences.
 

Asian Patent Attorneys Association (“APAA”)

APAA was formed in 1969 with the three foundation members, Japan, Korea, and Taiwan.  The Association has now extended to include membership from within the Asian region with 14 countries now represented and has a total individual membership in excess of 1400.
The Association has as its main objective, to promote the intellectual property law systems within the region and to foster ties of mutual understanding between those practicing intellectual property within the Asian region.
 

Broadcast Music, Inc. (“BMI”)

Founded in 1940, BMI is an American performing rights organization that represents more than 200,000 songwriters, composers and music publishers in all genres of music.  Through its music performance and reciprocal agreements, it grants businesses and media legal access to its repertoire of more than 3,000,000 musical works from around the world.  BMI is an active participant in international organizations focusing on intellectual property issues.  BMI licenses the public performance of its repertoire on radio, television, cable, the Internet and other media and in other businesses and establishments.
 

District of Columbia Bar Association (“DCBA”)(*)

The DCBA is an association of lawyers representing both domestic and foreign clients in intellectual property, trade and policy matters before various courts and before the executive and legislative branches of the U.S. government.
 

Domain Names Rights Coalition (“DNRC”)

The DNRC represents the interests and views of entrepreneurs, small businesses and individuals on the Internet.  The DNRC works for national and international policies which are fair and equitable to all users of the Internet, and which promote the Internet as a global medium of communication and free speech.
 

European Communities Trade Mark Association (“ECTA”)

ECTA is an association of some 1,500 trade mark professionals and attorneys whether in industry or in private practice.  Full members have to be practising in one of the fifteen countries of the European Community, but membership is also open to affiliates and associates from nearly a hundred other countries throughout the world.
 

Federation Internationale des Conseils en Propriete Industrielle (“FICPI”)

FICPI is an organization made up of over 4000 members from over 70 countries all of whom are experienced intellectual property practitioners.  The international group and its national associations regularly participate in national and international discussions in relation to all aspects of intellectual property.
 

The International Federation of Phonographic Industry (“IFPI”)(*)

IFPI is the worldwide voice of the recording industry.  Founded in Rome in 1933, IFPI has been active in developing and presenting the views of the world's major record companies, as well as those of hundreds of independent record companies, in numerous forums around the world. Currently, IFPI counts over 1,200 record companies, located in 70 countries, among its members.  In addition, the national record industry associations of 44 countries are members of IFPI. IFPI is a strong supporter of intellectual property, as its members depend on the strong protection of copyright and trademark in order for them to invest in and distribute recorded music around the world.  Consistent with this position, we strongly advocate the protection of copyright and trademark in on-line environments where the dangers to authors and rights owners from the lack of such protection are so severe.  We have therefore followed the recent developments in the field of domain registration, including the WIPO process, with great interest and support the goals of these undertakings.
 

International Intellectual Property Alliance (“IIPA”)

IIPA works closely with the U.S. trade representative in the annual reviews on whether acts, policies or practices of any foreign country deny adequate and effective protection of intellectual property rights or fair and equitable market access for U.S. persons relying on intellectual property protection.  IIPA is involved in the development of the TRIPs agreements and the Intellectual Property Chapter of NAFTA.  IIPA is a non-governmental organization participating in copyright discussions in WIPO and is also involved in regional initiatives such as the Free Trade Area of the Americas and the Asia Pacific Economic Cooperation.
 

International Property Law Association of Chicago (“IPLAC”)(*)

IPLAC consists of over 900 members who are engaged in the practice of intellectual property law.  Among the missions of the IPLAC is to “aid in the development of the patent, trademark and copyright laws, the administration thereof, and the procedures in connections therewith.”  Because of the importance of domain names and the Internet in the field of intellectual property, the IPLAC are extremely interested in the activities of ICANN.
 

The International Trademark Association (“INTA”)

INTA is a 120-year-old not-for-profit membership organization.  Since the Association’s founding in 1878, membership has grown from 17 New York-based manufacturers to approximately 3,700 members from the United States and 119 additional countries.

Membership in INTA is open to trademark owners and those who serve trademark owners.  Its members are corporations, advertising agencies, professional and trade associations, and law firms practicing trademark law.  INTA’s membership is diverse, crossing all industry lines and spanning a broad range of manufacturing, retail and service operations.  All of INTA’s members, regardless of their size or international scope, share a common interest in trademarks and a recognition of the importance of trademarks to their owners, to the general public, and to the economy of both the United States and the global marketplace.
 

The Association of European Trade Mark Owners (“MARQUES”)

The objectives of MARQUES are to assist European based brand owners in the selection, management and protection of their trade marks and to create a forum for the free exchange of ideas and information providing a platform for the representation of their interests.  They have approximately 450 members in 75 countries.
 

The Motion Picture Association of America (“MPA”)

The Motion Picture Association of America acts domestically as the voice and advocate of seven of the largest producers and distributors of filmed entertainment.  MPAA’s counterpart, the Motion Picture Association (MPA) serves the same purpose on an international basis.  Founded in 1922 as the trade association for the American film industry, the MPAA has broadened its mandate over the years to reflect the diversity of the expanding motion picture industry.  Today these associations represent major producers and distributors of entertainment programming for television, cable, home video, and looking into the future for delivery systems not yet imagined.  Among its principle missions, the MPAA directs an anti-piracy to protect, through copyright and other laws, films in 72 countries around the world.
 

New York Intellectual Property Law Association (NYIPLA”)(*)

One of the oldest intellectual property bar associations in the United States whose more than one thousand members are actively engaged in the protection of intellectual property assets in the U.S. and abroad.
 

Recording Industry Association of America (“RIAA”)(*)

RIAA is a trade association that represents the companies that create, manufacture or distribute approximately 90 percent of the sound recordings in the U.S.  With $14 billion in domestic sales and foreign sales of over $16 billion, U.S. recorded music represents approximately 60 percent of the world's consumption of music.  The U.S. recording industry employs hundreds of thousands of workers at a variety of levels and produces a foreign trade surplus.  RIAA maintains a large legal and investigative staff to fight against all forms of music piracy and is associated with local recording industry groups around the world to extend this fight.  One of its principal missions is to ensure that copyright legislation remains adequate in light of a rapidly changing technological environment, and that appropriate conditions exist to foster creativity in music through increased investment, production, and distribution.
 

(*) By written application to be reviewed by the IPCC.