Geographical Domain Names

I love a good law case, especially a media-law case, because I get to see it with background from both sides. Matthew Rimmer's article 'Virtual Cultures: Internet Domain Names and Geographical Terms' goes over the issues involved in the debate surrounding southafrica.com. This domain name was registered by an American company called Virtual Cultures, and the Republic of South Africa has now mounted an effort to claim the southafrica.com domain name as their own. Their main arguments include:

The names of sovereign nations are deserving of special protection as domain names. For example, the Paris Convention for the Protection of Industrial Property has long afforded special protections limited to national symbols of sovereign nations, such as national flags, emblems, official signs and hallmarks. In today's world of internet communications, a country's own name is a symbol of the sovereign nation and should be its unique global identifier...

It is important to recognise that, largely due to the digital divide, this 'gold rush' by entities in developed nations occurred at a time when many developing nations were unaware of the activities of these entities and how these activities would affect them... If the current registrants, primarily Western individuals and corporation, are permitted to continue to exploit these valuable national assets to which they have no rights, the effect will be to widen the digital divide to the further detriment of developing nations.
(Republic of South Africa, 2001)

The problem is not solved by trademark law, as you cannot trademark a geographical term. In the similar case of Barcelona.com Inc v Execelentisimo Ayntamiento de Barcelona (2002), it was held that the city of Barcelona had a right or legitimate interest in the expression 'Barcelona', and the registeration of the disputed domain name was done so in bad faith. The close-to-home case of Brisbane City Council v Joyce Russ Advertising Limited (2001) had a different outcome. The domain name brisbane.com was disputed under WIPO guidelines, the decision being favourable to the defendant after it was held that the Brisbane City Council wasn't entitled to the brisbane.com domain name as it had not established any common-law rights or trademark rights to that name.

The southafrica.com dispute is currently at an impasse. A WIPO statement indicated:

A recommendation to adopt such measures consequently would be a departure from one of the fundamental principles underlying the Report of the first WIPO Process, namely, the avoidance of the creation of new intellectual property rights or of enhanced protection of rights in cyberspace compared to the protection that exists in the real world.
(WIPO, 2001)

This excuse seems weak. The creation of new intellectual property rights is not necessarily a bad thing: one would expect that as media are continually created, re-imagined and then superceded, so too the law should retain flexibility to continue to effectively govern the changing media-landscape. The law is by necessity a creature of habit: the entire common law system is based on obeying precedent. Yet the common law also allows for flexibility through interpretation, which is how law is able to 'move with the times'. Creating new intellectual property rights would be an enormous undertaking, and the process would need to be internationally democratic and involve extensive deliberation, but cases such as the southafrica.com case have illustrated the need for enhanced rights, particularly for those who were slow off the (digital) blocks. It doesn't seem fair to me that already-disadvantaged countries should be further penalised for their less-than-first-world status.

It also seems interesting that in this whole discourse, domain names are discussed as if they were real, tangible property or chattels - capable of distinct and definite ownership. The Republic of South Africa likens the denial of the disputed domain name as being like the denial of a natural resource, of inherent value and inherently owned by them.

So ultimately, I suppose it seems that traditional modes of governance do not always work in the online world, nor are they always appropriate. Old Man Law often likes to preserve the past as he toddles on towards antiquity, but just because something has always been done a certain way doesn't mean thats the best way. And once again I have no answers...

[Sidebar: This particular WIPO website is dedicated to internet domain name disputes and has lots of interesting information]