19 Apr Who Owns the .Amazon? (And How Many Kindles Would You Pay For It?)
The Amazon is a 7,000,000 km2 ecosystem, containing the world’s largest rainforest, boasting some 390 billion trees, 2.5 million species of insects and over 2,000 species of birds and mammals, spanning the territories of eight states (Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname, and Venezuela). It is also the name of a company worth 810 billion dollars.
Back in 2012, Amazon – the company – applied to register the Internet generic top level domain (gTLD) “.amazon”, before the Internet Company for Assigned Names and Numbers – ICANN, the US non-profit entity in charge of overseeing internet governance. Since June 2011, ICANN began allowing private companies to register unrestricted gTLDs, different from the traditional “.com”, “.org”, or “.edu”. The change came with a set of Guidelines, prepared by ICANN, to regulate the registration process and set some ground-rules. Section 18.104.22.168. of these Guidelines required applicants to give “appropriate consideration” to the interests of governments in “geographic names”. The Guidelines express that territory names, cities, and sub-national place names matching a list composed by the International Standardisation Organisation (ISO) under the so-called “3166-1 standard” would receive added protection, ranging from outright prohibition, to a requirement of non-opposition by the affected governments.
Despite these protections, the ISO 3166-1 standard proved inadequate. While it protected the Isle of Man, Guam, and Bonaire, it did not protect, for example, Scotland or any of the national subdivisions of Brazil, Colombia, Peru, and Venezuela that carry the name “Amazonas”, the Spanish translation of “Amazon” (see here, p. 14). The ICANN Guidelines did require applicants to consult, in case of doubt, with “relevant governments and authorities” to “enlist their support or non-objection prior to submission of the application”. Amazon – the company – however, did none of that. In its application, when prompt to state whether “.amazon” was a geographic name, it simply said “no”. Amazon’s application, rather, intended to “block from initial registration” all countries and territory names contained in ISO 3166-1. It stated:
“Because the .amazon registry will be a single entity registry and for purposes which serve Amazon’s strategic business aims, the reserved names cannot be offered to Governments or other official bodies for their own use as this would conflict with the mission and purpose of the gTLD”.
In other words, there would be no Brazil.amazon website, managed by the Brazilian government to promote tourism in one of its most isolated and impoverished States.
Evidently, this did not sit well in South America. In November, 2012, both Brazil and Peru objected to the application through the Governmental Advisory Committee (GAC), which represents gubernatorial interests before ICANN. They complained that “granting exclusive rights to this specific gTLD to a private company would prevent the use of this domain for purposes of public interest related to the protection, promotion and awareness raising on issues related to the Amazon biome”. In 2013, GAC recommended ICANN not to proceed with the registration.
After a short and ultimately failed attempt at negotiations, Amazon sought an independent review of ICANN’s decision to reject the gTLD. A relevant part of the discussion in these proceedings hinged upon the question of whether Peru, Brazil, and the other Amazonian nations, had any right under domestic or international law to the denomination “Amazon”. A March 2014 expert report by French Professor, Jerome Passa, from Université Panthéon-Assas, had “concluded that neither Brazil nor Peru had a legally cognizable right to the geographic name ‘Amazon’ under international law, or for that matter under their own national laws”. Even worse, Prof. Passa concluded that:
“Beyond the law of geographical indications [which do not support Brazil and Peru’s legal claims], the assignment of ‘.amazon’ to Amazon would not in any event be prejudicial to the objecting states [Brazil and Peru] who, since they have no reason for linguistic reasons to reserve ‘.amazon’, could always if they so wished reserve a new gTLD such as ‘.amazonia’ or ‘.amazonas’ which would create no risk of confusion with ‘.amazon’”.
For the Independent Review Panel, therefore, GAC’s advice to ICANN had been flawed, in as much as it had not given any particular reason for the recommendation it offered. On July 2017, the panel ordered ICANN to re-evaluate its decision “making an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications”.
After this victory, Amazon promptly went back to the Amazon States, offering a new proposal, under which the company committed to (i) “block culturally sensitive names at second level s that no one could ever register and use these names”; (ii) “consult with relevant governments to identify these terms”; and (iii) “commit to provide support for applications for .amazonas, .amazonia, .amazonica (…) which could include technical and application preparation support” (see here, p. 2)
This was deemed insufficient and, in response, Peru and Brazil turned to the Amazon Cooperation Treaty Organization (ACTO). In December, 2017, it issued the Tena Declaration, affirming that the delegation of the .amazon gTLD “requires the consent of the Amazon countries” and that these countries “have the right to participate in the governance of thee ‘.amazon’ TLD, including on matters related to public policy issues of their interest”. This Declaration also convened a Working Group to evaluate Amazon’s proposal and reach a common position on the matter.
While the Working Group was conducting its research, Amazon came forward with its last offer to date, dated February 7, 2018. This offer stated that (i) the company would commit to establish a single second-level domain name for use by all ACTO countries (i.e. an “acto.amazon”, but not even a domain name for each country); (ii) block a certain number of second level domains agreed to with ACTO members; (iii) help ACTO members publicize the agreement; and (iv) – and perhaps most absurd – the company would “as an indication of goodwill and support for the people and governments of the Amazonian Region (…) make available to the [ACTO] governments credits for the use of AWS services, Kindles preloaded with mutually agreed upon content, and similar Amazon.com services and products in an amount not to exceed $5,000,000”.
The Working Group’s 26-page report constituted a kind of preliminary response to this proposal. It presented an overview of what it called “State practice and opinion on TLD names with geographical and cultural significance” (p. 9). It concluded that:
“Sovereign States and international organizations have been repeatedly declaring that top-level domain names with geographical and cultural significance shall not be assigned to private companies without the consent of the countries concerned [and that] These declarations are an expression of State practice and opinion, which have the effect of recognising or establishing limits under public international law on the freedom of public and private actors, including ICANN, to delegate or own names with a geographical and cultural significance as TLD, unless otherwise accepted by the relevant Governments”.
The Report also adds that
“[C]laims by governments over these TLDs need not be subsumed under any specific or context-limited regime of trademark protection or, more generally, intellectual property law. They are grounded, independently and selfsufficiently, on both public policy and general international law principles which States may identify and develop specifically regarding TLD names as culturally and politically sensitive as ‘.amazon’”.
In other words, these South American nations are challenging the foundations of the aforementioned Passa Report, seeking to create (or recognise the existence of) an international law regulating culturally significant names that effectively bars its use by private entities in gTLDs. While similar concepts exist on trademark law (think of geographical indications such as Champagne or Pisco), there seems to be no precedent for such a proposal.
Given the parties inability to reach an agreement, ICANN will be free to decide on this matter starting this Sunday. In its latest statement, issued yesterday, Brazil has requested ICANN to resolve the matter “taking into consideration the political sensitivities involved in the exclusive attribution to private interests of a domain name unavoidably related to the identity of millions of people”, as well as the “public interest of Amazonian countries, and the need to preserve a truly diverse governance of the Internet” (my translation from Portuguese original).