International Journal of Law and Information Technology Advance Access originally published online on August 13, 2007
International Journal of Law and Information Technology 2008 16(1):8-72; doi:10.1093/ijlit/eam005
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Lord of Your Domain, But Master of None: The Need to Harmonize and Recalibrate the Domain Name Regime of Ownership and Control
* Assistant Professor of Law, Singapore Management University. Executive Director, Society of International Law, Singapore. LLM in International Business Law, University College London, 2004. LLM in International & Comparative Law, Tulane University, 2001. LLB, National University of Singapore, 1996. Solicitor, England & Wales. Attorney & Counsellor at Law, New York. Advocate & Solicitor, Singapore. warrenchik{at}smu.edu.sg
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Abstract |
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The world has seen three waves of property. The first hark back centuries and relate to ‘real and personal property’ such as land and chattel, also known as immovable and movable property. The second gained recognition around the nineteenth century and relates to propertization of the ‘labours of the mind’ or ‘intellectual property’. The third wave came within a much shorter period and starting to gain recognition and it is what is known as ‘virtual property’. The law and policy-makers have had to surmount not only a steep learning curve but also in some cases a foundation that is wrought with mistakes when it comes to the treatment that should be given to virtual property. The Domain Name System (DNS) is the best example of a form of virtual property that has given rise to challenges in law making and administration. The ‘land grab’ of domain names in the World Wide Web (WWW) have given rise to a virtual tsunami of registrations and this has led to the subsequent erection of levees in the form of a challenge regime. This paper will identify and consider the problems that the DNS is facing and suggest the changes that have to be made to it in order for it to withstand the forces of what will be an increasingly rising sea of domain names on the WWW.
This paper will begin with a look at the fissures in the seabed of the DNS by comparing how the management and policies relating to domain name registration and challenge have shifted and diverged in different jurisdictions as well as by examining the inadequacies of the original registration regime (ICANN) and challenge policy (UDRP). After identifying the problem, suggestions will be made to resolve them in the best possible way, which require a revisit of the stakeholder and policy interests in the Internet and the ownership and control of domain names that essentially function as an important gateway to the WWW in order to rebalance these interests in an attempt to achieve greatest equilibrium. Amendments will be proposed to both the registration and challenge regimes as well as to the structure and hierarchy of domain name administration which should be a globally coordinated effort just as the DNS is a common entryway to the global property that is the WWW.