Property rights and Domain names - Sample Essay
However, the US government was also concerned that the internet control may go out of US hands and hence framed certain principles in the form Green Paper and White Paper. The White paper included several characteristics such as dominant coalition, steadiness, competitiveness, private, bottom up coordination, representation, etc. The ICANN brought about a transfer of the DNS control from the US government to the global environment. The entire interest of the community was needed to be represented through the actions of the ICANN, which included organisations, society, communities, etc.
The ICANN had a bottom-up approach of governance. Many people feel that the ICANN has made the internet very much suited for public interests and before the ICANN had any control over the internet, it was more of a private domain that was exclusively controlled by the US Federal Government. Many people say the internet developed from resources of the Federal government and the military. However, it is also important to note that neither the federal government nor the military had any role to play in the day to day policy-making, decision-making and management of the internet.
The policy making and the management of the internet has developed through interactions between private organisations having certain authorities over the internet. Besides, users and institutions also play a very important role in giving feedback to these organisations. Whatever policies are being developed by the ICANN or Verisign are done considering public benefit. By handing over the internet governance to appropriate authorities, not only are the problems solved regarding usage, content, etc, but day-to-day management issues are also well sorted out .
Many people consider that by handing over the internet to private organisations, the US government has not privatised the internet, but has handed over it to the private sector decision-makers that would specialise in framing policies and managing issues with regards to domain names. The NSI was the first private organisation to manage the Domain name registration and allocation. The NSI, ICANN and other such organisation gave a lot of importance to domain name as a unique method of accessing a web site. Hence, today domain name is considered as an important property by several organisations, which would often be using it as a trademark.
The issue of cyber-squatting was also prevalent due to the importance given by these organisations over domain name . Many people consider that domain name is private properties. However, considering the oppositions laid by other parties over the specific use of domain names and the implementation of strong registry services, demonstrate that Domain names may not exactly be private property. The ownership of these registries lies with the appropriate organisations, but certain amount of information is available to the public.
The ICANN has come out strongly that the information stored in the registry database lies specifically with the owner or applicants, and only the database as a whole is owned by the registration organisation . Property rights help to delimit the extent to which the rights of the individual would apply and the rights of the public would end. Several policies such as endowment, approximation and institutionalisation were applied to ensure proper enforcement of property law. The owner of the property has the right to benefit from his property and reap the fruits.
The owner of the IP has to benefit from his right by defending the economic benefits. The owner would be having a certain monopoly with regards to his intellectual property right, but at the same time his ownership cannot be guaranteed, as all intellectual property rights instruments are not perfectly efficient. They would and should ensure certain legitimate use by other parties within certain limits. The owner is left to utilise his intellectual property effectively such that he can exclude others and claim the most economic benefits.
In certain cases, there may be certain excesses which would anyway land in the hands of other parties including public and the rivals . In the case of domain names, the IP application seem to be simple and straightforward, but over a period of time a lot of controversies have developed requiring a lot of legal control. Earlier it was even difficult to transfer a domain name used by one individual to another. However, following the implementation of several rules and regulations, it is now possible to transfer the domain registry from one person to another.
However, there is still controversy regarding the . com registry agreement between Verisign and the ICANN. Verisign would operate the . com registry and provide registration for . com’s. On the other hand, it would follow the policies laid down by the ICANN, and pay ICANN for its services (of policy-making). Today several registries that carry information and details regarding the registration of domain names do not exactly specify who the owner would be. If such an agreement is missing, then the domain names would be owned by the registries or according to the ICANN it would be owned by the public.
If one single organisation owns such a registry, then it would not help to meet the rights of the other parties. For instance, earlier, the NSI only managed the registry of . com’s, and slowly other organisations such as Verisign, ICANN, etc, have been involved. This would ensure greater stability and sustainability. Currently, the registry database has been owned by the organisation that has been merely allocated responsibility. This does not speak legitimately of being the owner of the domain names.
Currently, the monopoly of the generic TLD lies with one organisation and the country code TLD rests with certain organisations that the government of the country has allocated to. The ICANN has freely encouraged the transfer and the reassignment of domain name rights from one party to another. The rights are transferred in such a way that they would end up with owners who are in a better position to make effective use of the resources. However, transferability of domain name registries is subjected to certain limitations. Several generic TLD registries and the ICANN have contractual agreements.
Either of the parties should be able to transfer the rights to another party with a mutual consent. For example the NSI was taken over by Verisign and so were the registries. However, the person taking over the registry may not always make full benefit of the registry and may not full the responsibilities mentioned. In a dynamic internet environment, there is also the possibility that the new registry owner may not make full use and understand the importance of the contents of the registry. When one company would be buying over the other company, the registry would also play a very important role in the takeover costs.
The free transferring of the domain name registries would create an instable domain name registry. In the generic TLD, the registries are monopoly, and hence if the information of the registry is not transferred during ownership transfers, the entire domain would be affected . Any property right instrument should ensure that the owner can exercise his right and also transfer his ownership to other parties freely. However, in the case of registries, as there a lot of problems with regards to stability and continuation of the system, the information of the registry is not a property of the registry organisation, but in the public domain.