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Public
Comments on the "Consultation Paper on the Review on Administration
and Assignment of Internet Domain Names and Internet Protocol Addresses
in Hong Kong"
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No. |
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DN32 |
| Date
of Submission |
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17.7.2000 |
| Submitted
by |
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Ms
Patricia Hui |
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Legal
Counsel |
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Hutchison
Telecommunications (Hong Kong) Limited |
COMMENTS
OF HUTCHISON WHAMPOA GROUP
ON
THE CONSULTATION PAPER ON
THE REVIEW ON ADMINISTRATION AND ASSIGNMENT
OF INTERNET DOMAIN NAMES AND
INTERNET PROTOCOL ADDRESSES
IN HONG KONG
PRELIMINARY
This memorandum sets out the comments and suggestions of the Hutchison
Whampoa Group on the proposals made in the Consultation Paper on
the Review on Administration and Assignment of Internet Domain Names
and Internet Protocol Addresses in Hong Kong.
The Hutchison Whampoa Group is a conglomerate comprising approximately
1,600 companies incorporated in Hong Kong and overseas with business
interests in various parts of the world. Currently, we have approximately
600 domain names registered worldwide and approximately 70 domain
names registered in Hong Kong.
We welcome and are encouraged by the opportunity the Consultation
Paper offers to express our views and recommendations on the proposed
arrangements on the administration and assignment of internet domain
names and internet protocol addresses in Hong Kong. We would also
like to pay tribute to the efforts the Task Force has put into the
Consultation Paper.
COMMENTS ON THE PROPOSED ARRANGEMENTS
A. Proposed Institutional Arrangements
1. Policy-making and administrative function relating to Internet
domain names
1.1 We concur with the view of the Task Force that the future policy
making and administrative body should assume the overall administration
and assignment of Internet domain names and IP addresses and should
have a wide representation from different sectors of the community.
A non-profit making body, with membership open on a subscription
basis to ISPs, the commercial sector, academia, the Government as
well as other organisations and individuals with an interest in
the development of the Internet, is certainly a widely adopted model
overseas which we believe will achieve the aim of wide representation
of views within this administrative and policy making body.
1.2 In view of the speed and flexibility at which the non profit-making
body can be set up, we agree that the future policy making and administrative
body should be a non statutory corporation. However in order for
this body to represent Hong Kong in, and be recognised by, the international
internet community, we are of the view that the body should be formally
endorsed by the Government by way of a written agreement as suggested
in the Consultation Paper.
1.3 If a non-statutory and non-profit making corporation is to be
set up, new mandate, policies, guidelines, rules and terms and conditions
should be drawn up and clearly defined for different aspects of
the future framework and for the transitional related matters. We
believe that the new body can build upon the wealth of experience
of JUCC in the technical operation and administration of the existing
system and of course the database would have to be transferred to
the new body but do not necessarily agree that the new body should
model upon the existing structure and operations of JUCC. We suggest
that some form of steering committee composed of representatives
from the academia, the commercial sector, the Government and the
industry be set up to oversee, co-ordinate and facilitate the formation
of this new body and transition of existing data from JUCC.
1.4 We agree with the Task Force's views that a Board of Directors
should be appointed to exercise the policy-making function. With
regard to the composition of the Board of Directors, we suggest
the following:
(a)
The Board of Directors will comprise a certain number of directors
elected by membership. The number should not be too small in order
to allow fair representation of different sectors of the community
on the Board of Directors. On the other hand, the number should
not be administrative-wise too big to handle.
(b) Directors will be required to be members of the new policy making
and administrative body.
(c) The majority of the Board of Directors should comprise elected
members, and the HKSAR Government will have a permanent position
on the Board.
(d) After each annual election, the Board will elect its Chairperson
from amongst the elected Directors. The Chairperson of the Board
will have the responsibilities and duties normally associated with
such a position.
1.5 We
suggest that in the interim pending the establishment of the new policy
making and administrative body that the members of the steering committee
referred to above shall serve as the interim Board of Directors to
prepare, inter alia, for the first elections of the Board of Directors.
A target date (say maximum one year) should be set by which the first
elections should be held. The election procedures will have to be
further drafted and defined, which can be a future subject for public
consultation.
1.6 We agree that the new policy making and administrative body can
operate on a self financing and cost recovery basis deriving income
principally from the registration and renewal of domain names.
2. Policy-making function relating to IP addresses
We concur with the Task Force's views that the existing arrangements
on the allocation and distribution of IP addresses in Hong Kong should
continue but if there are policy issues involved which may arise in
the international arena in the future and which may have implications
on Hong Kong, the new policy making and administrative body responsible
for domain names administration should be involved.
3. Administrator of the ccTLD registry
In a small local community like Hong Kong, we believe that there are
strong reasons to support maintaining a single ccTLD registry in Hong
Kong to provide simple clearcut structure to applicants. We do not
have any objection to the management of the registry being performed
in-house. However should such role be outsourced, the duties, performance
criteria, obligations and liabilities of the party to which the role
is to be outsourced should be clearly spelt out and formalised in
a legally binding written agreement.
4. Registrar and agents
4.1 Initially to avoid increasing the administrative burden of the
new policy making and administrative body which may in turn delay
the set up of such new body, we have no objection to:
(a)
the Government taking over the registrar responsibility in respect
of .gov.hk domain;
(b) the JUCC continuing to provide registration service in respect
of .edu.hk domain; and
(c) maintaining one single registrar for .com.hk, .org.hk and .net.hk
domain names.
4.2 The
single registrar may engage agents to perform some of the routine
registration work. However on top of signing an agreement to agree
to adhere to the same set of registration practices and procedures
required by the registrar, the agent should also pledge to perform
the duties and responsibilities of the registrar up to the standard
and requirements as from time to time required by the new policy making
and administrative body.
4.3 In the long run, the volume of domain name registration and the
speed at which such applications are handled should be kept under
constant review to gauge as to whether multiple registrars system,
seen in some foreign jurisdictions, should be adopted.
B. Domain Name Registration for .hk Domain Names
1. The guiding principles
We support the guiding principles set out in the Consultation Paper
subject to the following:
(a)
With regard to the principle set out in paragraph (c) that the registration
of .hk domain names should be on a need basis, we feel that this
is too restrictive and onerous. Please refer to paragraph B.2(b)
below for our rationale behind such objection.
(b) Given that the "first come first served" principle should continue
to be endorsed and adopted, and that the domain name registrar will
not police as to whether any third party intellectual property rights
have been infringed in the process of registration, we note that
the domain name applicants have been required to avoid infringing
upon the intellectual property rights of a third party. Please refer
to paragraph B.2(c) below for our views and concern on this principle
when put in practice.
2. Registration
guidelines for .hk domain names
(a)
Reserved list
We have no objection to the option of a reserved list as suggested
in the Consultation Paper. However we believe that the criteria
for inclusion of names/words in this reserved list together with
the first draft of the reserved list should be made available for
public comment. Thereafter the reserved list should be made available
for public inspection, and should be updated as approved by the
Board of Directors of the new policy making and administrative body.
Any person with an interest may apply to the Board of Directors
with supporting grounds and documentary evidence for inclusion of
a particular name or word(s) to the reserved list.
We are uncertain as to the purpose and the benefits of this reserved
list which are both unclear from the Consultation Paper. In practice
well known names should have already been registered as domain names
or trademarks. Is the reserved list for reference by the public
and thereby the potential applicants? Or is it a reference document
for the registry in its consideration and approval process of domain
names applications? Does it mean that the names and words will not
be available for registration and all application for domain names
containing words or names in the reserved list will be automatically
rejected by the registrar?
(b) Format and business nature of a domain name
We do not agree with the Task Force's view that the second level
domain category being selected for a particular domain name application
should similarly correspond to the business nature of the applicant
with documentary proof from the relevant registry in Hong Kong as
appropriate.
We acknowledge that "cybersquatting" is a problem which needs to
be discouraged and tackled. However in the case of conglomerates
like ourselves, which comprise companies incorporated in different
jurisdictions with different business interests and operations being
held and carried out by different groups of subsidiaries and associated
companies, corporate planning is very important for business and
other reasons. We firmly believe that our group, although comprising
many individual legal entities, should be viewed on a whole and
treated as a single entity in this context.
Applications may broadly be divided into 2 categories: (a) applications
for domain names which correspond with the names of the relevant
companies and (b) applications for domain names which resemble relevant
trademarks/brand names. With regard to the first category of applications,
imposing restrictions on the holding structure of the domain names
may affect our genuine corporate planning for the group and we submit
that the "business nature" requirement should be deemed to be satisfied
if we can produce documentary evidence to show that the applicant
for the domain name and the company (ies) carrying on the relevant
business are within our Hutchison Whampoa Group.
For the second category of applications, the same argument applies.
In addition, it seems that the only documentary evidence which may
be produced perhaps would be the trademark application/registration.
However there is currently no present requirement/restriction for
an applicant or a registrant of a trademark in Hong Kong to be a
company incorporated in Hong Kong nor a company carrying on business
in Hong Kong. In the case of new ventures and/or products we believe
that the purpose of protection will be defeated if no application
can be made for a new domain name unless and until the corporate
entity has been set up and/or the relevant trademark application
is made therefor.
(c) "First come, first served" principle
We concur with the Task Force's view that the domain names should
be registered on a "first come first served" basis. We also note
that as the registrar would not assume the responsibility for checking
whether a domain name being applied for infringes the rights of
any third party, the responsibility rests with the applicants in
the sense that they would be required to make a declaration to the
same effect when making an application. We however doubt whether
the real purpose can be achieved by simply a declaration. We do
not believe that this requirement for a declaration will have a
deterring effect on people engaged in cybersquatting. On the other
hand the checking process, which needs to be done to ensure that
the declaration is complied with, is in our view impractical, unduly
onerous and burdensome, and penalises real users like ourselves.
(d) Multiple domain names per registrant organisation
We agree that each organisation should be allowed to register more
than one domain name under .hk to enable local companies to use
different .hk domain names for their products and services. However
the problems outlined in paragraph (b) "Format and business nature
of a domain name" would apply here as well.
(e) Transferability of domain names
We welcome the Task Force's view that transfer of domain names should
in principle be allowed. We would however like to request the Task
Force to define what circumstances would constitute valid grounds
for transfer. There would be more grounds than what the Task Force
has listed in the Consultation Paper if the Task Force acknowledges
that there are genuine reasons for domain names to be held by non-trading
and/or non-Hong Kong incorporated subsidiaries within the same group
of companies. At least to quote as an example, internal restructuring/reorganisation
should be allowed. Also we do not see why genuine sale and purchase
on normal commercial terms, as differentiated from speculative trading,
should not be allowed as one of the valid grounds.
(f) Local presence
In our view local companies and multinational organisations with
a local presence at least should be allowed to register domain names.
This scope is however still too narrow when viewed with the fact
that registration of trademarks in Hong Kong does not have correspondingly
local presence requirement. We are concerned that such a restrictive
approach may become an impediment to genuine business development
and on a wider horizon to the development of Hong Kong as a leading
digital city.
(g) Domain names for individuals
To promote Hong Kong as a leading digital city, we do not see the
reason for prohibiting individuals from applying for domain names.
To prevent "cybersquatting", we agree that one individual should
be allowed to apply for and register only one domain name.
(h) Renewal of domain names
We concur with the Task Force's views that all .hk domain names
should be subject to renewal and that renewal fees should be charged.
We would suggest that a variety of renewal options should be made
available so that the registrants can opt for renewal for 1, 2,
5, 10 or more years having regard to their respective business requirements
and financial resources. Failure to pay the prescribed renewal fee
within a reasonable period of required time should be a ground,
amongst others, to revoke the domain name registration so that they
can be made available for registration by others.
C.
Dispute Resolution for .hk Domain Names
1. Dispute resolution guidelines
(a)
Registration authority to maintain a neutral role
We agree that the new policy making and administrative body should
remain neutral in any dispute in relation to registration or use
of domain names.
(b) Alternative dispute resolution mechanism
We certainly welcome in principle the establishment of an alternative
dispute resolution mechanism which should provide a more effective,
efficient and inexpensive way of dealing with complaints relating
to domain names as compared to court procedures. However until defined
rules for the alternative dispute resolution mechanism are drafted,
no definitive view can be given on the mechanism. We therefore urge
the Task Force to make available such draft alternative dispute
resolution rules for public consultation
It is unclear from reading the Consultation Paper as to whether
the dispute resolution procedure can only be invoked until all of
the three types of evidence specified are produced or whether any
one of those three specified is sufficient. The Consultation Paper
also has not addressed the dispute resolution for rejected applications
for domain names.
D.
Other Comments
1. Revocation and suspension of registration
Grounds for revocation and suspension for registration should be clearly
specified.
2. Warranty on Accuracy
We are of the view that the new policy making and administrative body
should represent and warrant that reasonable endeavours will be used
to ensure accuracy of information recorded in the registry to ensure
confidence in the integrity of the registration system in Hong Kong.
CONCLUSION
As this round of consultation is very much focused on the framework
of and the general principles behind the operation of the future policy
making and administrative body, we urge the
Task Force to make available in the future draft detailed rules, regulations,
policies and guidelines relating to all aspects of this body and indeed
amendments from time to time of such rules, regulations, policies
and guidelines for public consultation so as to allow views of different
sectors of the community to be taken into account in the establishment
and improvement of this future policy making and administrative body,
which we believe is a very important element in establishing Hong
Kong as a leading digital city.
We would also take this opportunity to request for a meeting with
the Task Force at a time convenient to the Task Force to discuss the
concern we have as a conglomerate on this issue.
Hutchison Whampoa Group
July 2000
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