Comunicazione della Commissione europea sulla creazione del TLD .eu

INTERNET DOMAIN NAME SYSTEM - CREATING THE .EU TOP LEVEL DOMAIN - .EU

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

INTERNET DOMAIN NAME SYSTEM - CREATING THE .EU TOP LEVEL DOMAIN -

For some time the Commission has been receiving requests and initiatives in support of the creation of a European Internet Top Level Domain. This indicator of European identity for suppliers of services and information on the Internet is perceived as a valuable stimulus to electronic commerce and to the European transition to the information society.

The European Council in Lisbon stressed the necessity for businesses and citizens to have access to an affordable, world-class communications infrastructure and a wide range of services. The setting up of the top level domain name .EU, dedicated to the needs of electronic commerce, education, public services, libraries, scientific and cultural institutions, and for the benefit of the final user, would complement other European policies in the field.

The .EU Domain Name is part of the recent Commission eEurope initiative.

In February 2000 the Commission initiated a public consultation on the basis of a document describing the possibilities and asked several questions about whether and how the proposed .EU Top Level Domain should be set up.

Accordingly the purpose of this Communication is to inform the European Parliament and the Council about:

the principal results of the public consultation

the conclusions that the Commission has drawn, and

the next steps being taken to implement the proposal.

It also asks the Council and the European Parliament to endorse these actions and to support the steps taken to obtain the operational insertion of the .EU Domain Name into the global Domain Name System.

The Commission received more than 90 responses to the public consultation. A very large majority were strongly in support of the initiative to create the .EU Top Level Domain. At the same time many detailed questions and policy issues were raised, together with proposals for a wide variety of solutions. The Commission has carefully considered these detailed replies and will continue to examine, together with representatives of industry and users, the ways and means of implementing an exemplary system that will fulfil the objectives of the proposed Registry and meet all the concerns expressed. The Commission notes that some of these issues arise in the context of the Information Society and electronic commerce in any event, and that they are already being addressed in an appropriate manner.

The responses to the consultation addressed the following main policy issues:

The added value of the proposal for .EU

Constitution of the Registry organisation

The role of the European Union

Principal Registry policies

Jurisdiction

Relationships with national ccTLD Registries in the Member States

Territorial scope and relations with third countries

In short, the replies showed strong support for the concept as well as producing a wide range of questions and comments on the detail of its implementation. Annex 1 to the Communication sets out the main features of the replies received. The replies may be inspected in greater detail on the Web.

The Commission considers that the creation of the .EU Domain would be a decisive element for accelerating e-economy and e-commerce in Europe at a time when the single currency will soon be a reality. The existing generic TLD, .COM, is already congested. Thus, .EU would expand the Domain Name Space and at the same time would enhance the interconnection and interoperability of European companies, organisations and individuals. It would give users who wish to operate across the Internal Market a specific European identification which will be recognised globally. It will also avoid the necessity of registration in different Member States. Indirectly, it would also increase consumer confidence in the use of the Internet among European users, since European law, data and consumer protection rules would apply.

Furthermore, a number of comments received argued that the .EU Domain Name should offer characteristics that would justify this initiative as clearly distinct from the generic Top Level Domains on the one hand and the country code Top Level Domains on the other hand. The most frequent proposal is to certify that a .EU domain name operator does exist as a legitimate entity (e.g. by reference to VAT registration or another official source) and to maintain accessible "Whois" data about the operator. This point is also emphasised by the Intellectual Property and Trademark community as necessary for the protection of their rights. Other respondents propose domains that are restricted to an industry sector or to "chartered" members of a profession.

It must however be borne in mind that domain name registration is an automatic, computerised process that, in a moderately successful Registry, may involve processing thousands of applications every day. Consequently policies favouring distinctive features for the future TLD, would have to be implemented in practice at a reasonable cost.

A large majority of the responses endorsed the Commission's suggestion that a not-for-profit association should run the Registry organisation, working in the public interest. The possible policy-making functions of the Registry were addressed separately from the function of operating the Registry database. There were several opinions mentioning the possibility to have a purely functional and technical Registry while the policies aspects would be decided on by a separate entity.

The function of Registrars, that is agencies that undertake enquiries and registrations of names on behalf of operators and other interested parties, should be exercised by a number of organisations operating in all parts of the European Union on a competitive, commercial basis. The numbers and rules for accreditation and operation of such agencies remain to be determined.

A wide range of interested private and public sector participants are already working together with a view to creating an appropriate Registry organisation. They include representatives of the Internet Service Providers, existing Registries and Registrars, telecom operators, standardisation bodies and industrial and user associations, including Intellectual Property interests. The Commission is facilitating and actively participating in this process in order to help identify the most appropriate structures and, in consequence, the framework measures that should be taken by the European institutions.

The Commission envisages that .EU will be deployed in the Domain Name System in a similar way to the existing country code Top Level Domains. In May 1999, the Commission asked the ISO Maintenance Agency to allow the reserved code element EU to be extended to Internet applications. It received a favourable reply which permits the code element EU to be used as a ccTLD identifier, in line with normal practice as regards the implementation of the ISO list of reserved code elements.

Meanwhile, the Government Advisory Committee to ICANN has agreed on guiding principles for the relationships between the governments and public authorities, the ccTLD Registries and ICANN, whereby the ultimate public policy authority for a national ccTLD Registry rests with the relevant government or public authority. Accordingly, regarding the .EU Domain, public policy responsibility will rest with the European Union. The Operating Principles of the Government Advisory Committee also state that "Country code top level domains are operated in trust by the Registry for the public interest of the Internet Community, on behalf of the relevant public authorities including governments, who ultimately have public policy authority over their ccTLDs, consistent with universal connectivity of the Internet."

A significant number of the replies supported, indeed welcomed, the participation of the EU in this way as a guarantee that the operations of the Registry would be consistent with EU law and policy. However, this view of the EU's eventual role was not shared by a few respondents to the consultation, who would rather see .EU as a generic Top Level Domain similar to .COM, etc. The Commission nevertheless favours the opportunity to ensure the further added value of European oversight over the new Domain.

The Commission therefore envisages that it will participate on behalf of the European Union in the overall policy formation process for the .EU Domain. It will facilitate the creation of an adequate structure together with representatives of appropriate interests drawn from suppliers and users of Internet services in order to define broad policy guidelines.

The organisation in charge of the operational registration of domain names under .EU (the Registry) would be independent from the policy structure. The Commission envisages to designate the Registry either in response to a consensus proposal from the European Internet community, or if necessary following evaluation of the results of a public call for expressions of interest. It is envisaged that the Registry organisation would be a not-for-profit entity.

As stated in the consultation document, the EU code would be assigned to the Registry by contract for a limited period, renewable. The European Union would retain all rights in the code "EU", and other safeguards, including rights to the Registry database, would be provided for, respecting existing ICANN and GAC policies for the relationships between public authorities and the existing national (ccTLD) Registries. The contract with the Registry would exclude the European Union from any legal or commercial liability for the operation of the Registry.

Recent experience has demonstrated that the operation of the Internet DNS, and particularly the functioning of Domain Name Registries may raise issues that fall under Community law. These include competition, intellectual property and data protection, among other areas of Community law and policy.

The responses to the public consultation reflect a wide range of opinion on the form of domain names under .EU (second level domains, SLD). Most respondents assumed that a system of sub-domains would be required but there are different views between those who advocate a few sub-domains and those who would prefer many domains to permit differentiation between similar names in different businesses.

A policy will also be needed covering names that would not be available for use except by those with a demonstrable right to use them. This list could include certain trademarks and famous names recognised under a scheme being contemplated by the WIPO and the EU Office for Harmonisation in the Internal Market. Additional suggestions include reserving geographical indicators and place names (regions, towns, and villages) for use only by the corresponding local and regional communities.

The Commission will continue to examine these and related issues in the further preparatory meetings with industry.

Furthermore, the Communication on the Organisation and Management of the Internet concludes inter alia that the Commission intends to make a proposal for a code of conduct or other appropriate instrument that would restrict the scope of current abuses in the area of abusive and speculative registration of domain names.

The Commission has initiated and will pursue the necessary consultation with all interested parties with a view to adopting the Code of Conduct so that it can be applied by the new Registry organisation, and by other TLD Registries operating in the European Union.

Certain replies to the consultation have raised the question as to what happens in the event of dispute between the Registry, Registrars, Registrants and other third parties, should they be subject to the jurisdiction of different Member States.

The Commission notes that these matters are in general governed by the provisions of the Brussels Convention and will monitor any problems that arise in practice in this area and make the necessary proposals should the need arise.

It should also be stressed that all current registrations in the existing generic TLDs, of which there are an increasing number in all the Member States, expose Registrants to extra-Community jurisdiction. Consequently, the Commission considers that the overall position in this respect could be improved for new Registrants in .EU as a result of the creation of the new Registry.

The results of the consultation confirm the need to reach agreement on the respective roles of the .EU Registry and the ccTLD Registries in the Member States. It is also clear that this is possible. The Association of the ccTLD Registries, CENTR, has decided to participate fully in the process of setting up the Registry to this effect.

There is also agreement that the national Registries could function as Registrars within the .EU Registry should they wish to do so, but that it would not be appropriate for them to enjoy any exclusive or privileged position in this area.

The consultation tends to confirm the Commission's view that the territorial scope and eligibility of the .EU Registry should be open to entities and individuals within the European Union in a manner consistent with the EC Treaty rules.

There is however a significant demand from representatives and entities of other European countries for access to the new Registry. This includes member states of the EEA and EFTA, candidate countries and from other European countries making up the CEPT.

In the Commission's view, the possible extension of the eligibility criteria for the Registry should be considered after the Registry has come into existence.

On the basis of the White Paper issued in June 1998, ICANN was created as a not-for-profit private corporation in order to progressively take over from the US Administration and carry out the administrative functions for the Internet naming and addressing system. Meanwhile, in the context of the agreements reached in October/November 1999, the US Department of Commerce (DoC) has retained a significant degree of direct authority over ICANN. The Commission has drawn the attention of the Council and the European Parliament to these aspects in the Communication on the Organisation and Management of Internet adopted on 11 April 2000,

Historically the Internet Assigned Numbers Authority, IANA administered the DNS Root and the domain name Root Servers. The transition process for ICANN has involved transferring part of these functions through a contract between ICANN and the United States Government signed on 9 February 2000. However this contract does not yet give powers to ICANN to authorise modifications, additions, or deletions to the root zone file or associated information that constitute delegation or re-delegation of top-level domains. The DoC still performs these functions during the transition phase which is defined as the "DNS Project" through a Memorandum of Understanding (MoU) signed between the DoC and ICANN on 25 November 1998.

The United States Government and the ICANN organisation have been informed that the European Union intends to deploy the two letter code "EU" for the purpose of an Internet Top Level Domain and that the Commission is the relevant public authority that will be ultimately responsible for defining the principles for its management and administration. The Commission has therefore requested the formal delegation of the .EU Domain Name and its insertion into the Domain Names System.

The Commission Services are in contact with the US Government and the ICANN Board and staff and have informed them of the results of the public consultation and the follow-up envisaged in this Communication.

Meanwhile the Commission will continue to consult with relevant private and public sector participants and users' associations in Europe in order to facilitate the preparation of guidelines for the registration policy of .EU, including a code of conduct or other appropriate instrument that would restrict the scope of abuses as regards the registration of Domain Names. It will also address the question of the legal framework for the operation of the entity in charge of the .EU Registry.

The Commission will monitor the registration policy for .EU and the management of the Registry on behalf of the European Union and report periodically on the exercise of these functions to the Council and the European Parliament.

In the light of the results of the consultation process, the Commission considers that the .EU domain name would be a significant new asset for the development of electronic commerce and the information society in Europe.

The Council and the European Parliament are asked to take note of the orientations of the Commission as outlined in this Communication and, further, to note that the Commission will proceed by requesting from the US relevant authorities and from ICANN appropriate action for the delegation of the .EU Domain Name.

In addition, the Commission will:

Continue consultations with the interested private and public sector participants and users associations in Europe to define a suitable structure for the Registry operation and registration policy for the .EU Domain Name.

In the light of these consultations, the Commission will draw conclusions for the legal framework for the operation of the system, including the designation of the entity in charge of running the .EU Registry and the guidelines for its registration policy, which will include measures to counter the speculative and abusive registration of names. These conclusions will form the subject of a further Communication to the European Parliament and the Council.

Ensure that the responsibilities of the EU public authorities towards the economy at large, the deployment of the information society in Europe and the character of public resource of the .EU Domain Name are effectively linked to the policy of the not-for-profit entity in charge of its operation.

Report to and maintain a dialogue with the Council and the European Parliament on the results of these actions and its contacts with the US Government and ICANN.

The Working Paper on the Creation of the .EU Internet Top Level Domain was published on 2.2.2000 on the Commission's Internet sites, http://www.ispo.cec.be and http://europa.eu.int. The intention of the Commission was to initiate a public consultation on the interest in a .EU Top Level Domain and the ways and means of setting it up.

Six questions were proposed for the orientation of responses:

On the form of the Registration organisation: the Registry.

On the process for deciding .EU Registry's registration policies and the main criteria for these policies.

On dispute resolution and trademark policies.

On the protection of names and marks in the DNS

On contributing to the development of electronic commerce in Europe

On the relationships between the proposed .EU Registry and the national ccTLD Registries in the Member States.

92 responses were received by the closing date of 17.3.2000. These included six national administrations, 28 organisations representing the interests of different industries (including 8 specifically concerned with trademark and intellectual property issues), 28 enterprises, including 8 telecom companies. Other respondents included users, engineers, advisers and others closely concerned with Internet applications, including Domain Name registration. 76 of the responses came from European Union sources, the remainder being from international organisations, other identified countries (CH, NO, JP) or unidentified origins.

The responses were overwhelmingly in favour of the establishment of a .EU Domain, with however a number of doubts, questions, certain pre-conditions and differences of opinion that are further discussed below. The Commission notes the support expressed particularly by the administrations of several Member States and by the CENTR Group representing the national country-code Top-Level-Domain registries, as well as by EuroISPA and other competent Internet industry representatives.

The second area of consensus was in favour of a non-profit organisation to run the Domain system, divergences appearing however in recommendations as to the actors preferred to participate in it.

Thirdly there was strong agreement from most respondents with WIPO recommended policies relating to trademarks and resolution of disputes.

The issue where greatest divergence of opinion occurred was that of Registry policies, ranging from the first-come-first-served principles of .COM etc. to desires for more equitable and added value solutions. The most frequently expressed concern was to avoid the phenomenon of speculative registration of names under a new Domain system. A substantial number of respondents would like to see .EU acquire added value through validation of name holders or similar generators of confidence.

Some 90% of responses are in favour of creating .EU and many urge the Commission to move quickly and avoid the procedural constraints that have been associated with the privatisation of .COM. Almost half of the responses included detailed advice on the establishment of a Registry and associated policies. Many interested parties recognise a need for a TLD Registry in Europe that signals an European identity and would privilege cross-border activities, both commercial and non-commercial. The .EU Domain is seen by many as offering a better solution to contemporary requirements than either the .COM which is already congested, or other existing gTLDs or multiple registration is several national ccTLDs.

Those who have reservations include a minority of the trademark bodies and the telephone companies. Arguments advanced concern the difficulty of avoiding cybersquatting and possible confusion in the markets, with respect to existing and future generic Top Level Domains and the country-code TLDs. Others maintain that .EU will in any case be considered a global Domain competing directly with .COM etc. and that the Commission's Working Paper did not spell out sufficiently the added value of .EU over other existing and future TLDs. Another remark was that progress with software and directories might replace the Domain Name System and therefore make .EU unnecessary. Some were concerned that the creation of .EU would encourage other regions of the world to set up similar claims to having their own regional TLDs, creating yet another space for cybersquatters.

The question of bringing further added value to .EU also interested many respondents who are strongly in favour of .EU, as discussed below. Yet others advise the Commission in any case to obtain and deploy .EU as a globally competitive Top Level Domain, emulating the gTLDs.

Almost all respondents preferred the option of the. EU's being run by some form of non-profit organisation in the private sector, working in the public interest. The main alternative proposed is that European Union itself administers the information centre and Registry, although others note that direct administration by a government body may be insufficiently responsive to changing needs. Other suggestions include running the Registry through the ccTLDs (at least initially) but some claim that the ccTLDs have up to now been too restrictive. Complete commercial privatisation, with auctioning or other distribution, is suggested by few, including a shared, co-operative system run by a network of distributed Registrars. In parallel, opinions ranged from favouring strong central control of registration to the view that no central administration might be needed.

As to the specifics of overall policy oversight, opinions included the creation of a new European Internet society, recourse to existing bodies such as RIPEor the Office for the Harmonisation of the Internal Market. Most respondents assumed however that general policy will be developed through cooperation between the Commission, (the EU institutions retaining ultimate authority), the ccTLDs in Member States and other relevant interests in the EU. A number point out that the policy formation and oversight body should be distinct from the operational running of the Registry and available to receive and resolve complaints about the implementation by the Registry of general principles. Some propose that the policy oversight needs no legal form, while others assume that a formal structure needs to be created.

With the exceptions noted above in favour of decentralisation or freedom from control, it was generally recognised that a central Registry will be required to set up and maintain the system, hardware, software and the central database or shared registry system. A variation proposed would involve some geographically distributed functions under the control of Registrars. OHIM is also suggested as a possible Registry. Some respondents would mandate the ccTLD Registries to take on the whole task of Registry and Registrar, whereas others would prefer to license others such as existing ICANN accredited Registrars. It was noted that the CENTR group, representing the national Registries, declared that it does not at the current time consider it appropriate that it should undertake this role.

The question of who should be accredited to undertake the registration of names produced a variety of suggestions, from direct registration with the central Registry to the accrediting of a very large number of agents on the UK ccTLD model (Nominet). Some respondents would allocate responsibility for registration in sub-domains to specialised Registrars; others would insist that all remain open for registration through all Registrars, except for certain governmental or institutional categories.

The registration of names by Registrars is generally supposed to be best undertaken through open competition on a commercial basis, i.e. the end-user tariffs being variable since fixed individually by each Registrar. One suggestion is that Registrars should be able to offer a "one-stop shop" for ccTLD and .EU names.

The great majority of respondents mentioning this issue propose that .EU should be restricted to the territory of the European Union, with Registrants being required to show establishment in one of the Member States. However, some, including governments and institutions from concerned countries as well as others who point out the need not to discriminate against close trading partners, plead for extension to EEA, candidate countries or the CEPT countries. Others note that .EU would in practice be a global TLD and should be treated as such, allowing all who wish to register.

Several respondents pointed out that it is advisable to set out the broader principles of registration policy before deciding on the form of the Registry and its constitution. A number believe that only general policies need be laid down, leaving detailed implementation to individual Registrars in a competitive environment. Generally, pleas are made for simple, rapid and flexible procedures.

A large majority of responses addressing the issue of the kind of names to become available under .EU favoured the creation of a system of sub-domains, usually representing different economic or professional sectors. Some pointed out however that considerable thought must be given to the categories to be offered, to avoid the need for a single user enterprise to register in multiple categories and to ensure clear differentiation between them for the benefit of Registrants and net users. A few examples like name.hotel.eu or name.aero.eu. are given and pleas are made that the Second Level Domains (SLDs) should be linguistically meaningful to as many European users as possible. Some would advise the creation of reference tools such as multilingual directories of domain names. Some consider country SLDs such as .FR.EU to be possible, despite the fact that this category was specifically excluded from consideration in the Commission's Working Paper. Others point out that this geographical subdivision would create confusion with the existing Registries.

A minority plead for no subdivisions of .EU for the sake of simplicity, visibility, ease of trademark protection and because the .EU Registries will not be able to compete with the gTLDs if restrictions are imposed. A few propose only general SLDs, like name.com.eu (or name.gmbh.eu). Some respondents would like to see every citizen have an automatic right to a personal domain name under .EU (name.pp.eu). Devices such as adding a geographical element, a serial number or even random numbers could distinguish many instances of the same personal or business name.

Many respondents are concerned about the practice of buying up domain names and thereby excluding others from using them (cybersquatting and warehousing) which can result from an unrestricted "first come, first served" policy. Some support the adoption of specific cybersquatting legislation, such as a European Directive to avoid piecemeal national bills. Other suggestions to avoid this problem include the use of many SLDs corresponding to economic sectors, as above, the restriction of the domain names to one per registered company address and the withdrawal of names that have been registered but are not used. It is also pointed out that charging a relatively high fee, and ensuring its prepayment, can discourage high-volume speculative registrations.

A number of respondents would allow registration only of a name to which the applicant had a legal right, like a trademark, registered company name or personal name. It is noted however that some such restrictions are quite easily side-stepped, for instance by the creation of fictitious companies.

A significant number of respondents advise the creation of added value to .EU names, for example through a guarantee of quality for user confidence and visibility of the system. At a minimum, this would be an assurance that a commercial name holder is a legitimate entity (e.g. by VAT registration). Thus, verifiable information about commercial domain name owners (but trademark associations point out the difficulty of distinguishing between commercial and non-commercial use of a Web site) could constitute an extension or addition to existing basic reference data on the domain names, Registrar, holder and contacts). Some respondents go further, proposing a code of conduct for .EU name holders or reserving specific domains for use by chartered members of a profession.

Other respondents would demand that specific types of use be restricted to defined SLDs (so, for example, as to clearly label sex or other sites and to give confidence that the registrations in the SLD correspond to the meaning of its label). A warning is made however by trademark interests against creating a new type of commercial branding and protection through .EU names.

Many respondents, and the Trademark and Intellectual Property Rights community in particular, insist that the registration system be fully transparent, with free, permanent on-line access to the Registry and to complete and up-to-date data about the Registrants of domain names through a Whois system. Certain responses detail how this requirement may be satisfied while conforming to the provisions of data protection legislation.

A number of responses from the trademark community go into great detail on policies to prevent conflict and procedures to resolve differences. WIPO procedures are generally advised. Some users however maintain that these favour trademark holders excessively. The Uniform Alternative Dispute Resolution (UADR) procedures initiated by ICANN, particularly the arbitration expertise of the WIPO administration, are praised and adherence to the global policy is advised. Some suggest a specific European forum is suggested but it is also pointed out that systems should be compatible globally since domain names are inherently global.

In view of the characteristics of European Trademark law OHIM in Alicante is claimed by a majority to be well suited for policy making and appeal roles, insofar as adequate resources are made available. Others disagree on the grounds that OHIM's priorities lie elsewhere or that it should first build up its' experience. It is noted by some that ADR procedures should not however prevent recourse to the courts. The suggestion is also made that national legal systems should accept electronic petitions and those in other languages because of the urgency.

A suggestion is to make a special SLD category for trademark and other right holders, with the proviso that this needs to be further examined.

Most respondents accept that exclusion lists should be drawn up for screening applications for names not available for registration as domain names and they mention that famous and well known names (and any confusingly similar names) should be screened out. Others would add to this list, public institutions, branches of industry and all place-names. Some advocate excluding the use of all generic words, to avoid their capture by particular interests, and claim that such generic words if used should become SLDs under .EU. One suggestion however in the other sense would allow registration of famous names on payment of a large fee and public notice.

The principle view given was that a .EU name would have added value if it is associated with a "label" or certificate of quality. Such labels would require verifiable data to be accessible about name holders and possible association with organisations delivering certificates of professional qualification or quality of products. A system of SLDs by economic sector was also proposed as offering advantages of differentiation and scale over existing domains. A multilingual thesaurus of SLDs was again proposed here.

The management of the .EU domain should, in some views, include the representation of business and users.

Whereas some respondents preferred not to give a privileged role to the national ccTLD Registries, most acknowledged the complementary nature of .EU and that the national Registries should be fully involved in the process of creating .EU and in producing coherent policies. The CENTR group, representing such Registries is actively supporting the .EU initiative and confirms that the new entity will need to be harmoniously integrated with existing domains.

Endnotes

10. Office for the Harmonisation of the Internal Market (OHIM), Alicante.