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Tom McMahon
In the present paper, I provide excerpts and paraphrases from a longer paper, “Improving access to the law in Canada with Digital Media”. Anyone wishing to read the whole paper (or read the excerpts with the Internet links and footnotes included) should consult the electronic version, published at the AustLII site[2] and at the above URL.[3]
The purpose of that paper is to argue that Canada (and virtually all jurisdictions) can and should do more to provide electronic access to the law to the public. It examines a variety of issues relating to electronic access to the law, including requirements to publish the law; copyright issues concerning electronic access to the law, affecting both government and the private sector; access to electronic copies of the law under freedom of information legislation; and cost concerns about access to the law. My paper canvasses the state of access to the law in Canada today, and also examines the models of providing electronic access to the law at the Australasian Legal Information Institute, the Cornell Legal Information Institute and the Université de Montréal LexUM. The paper argues that access to the law can and should be more than providing raw text on the Internet. The paper then concludes with a 10-point dream for electronic access to the law.
It must be stated that Canadian governments and some Canadian courts have dramatically increased free electronic access to the laws in Canada over the past five years.[4] While the purpose of this article is to argue that more can and should be done, those successes should be acknowledged and congratulated.
Six years after having begun publishing on the Internet, Canada’s laws are less available on the Internet than is the case in the United States and Australia. This is somewhat surprising, considering that Canada prides itself on being one of the most networked countries in the world, with an extraordinarily high percentage of citizens with access to telephones, and the proportion of Canadians with access to the Internet is one of the highest in the world. In the past two years, the Canadian Government has placed considerable emphasis on developing electronic commerce and making Canada one of the wired countries in the world. The places that produce the laws — the courts and legislatures — are all entirely computerised, and there is good collaboration in using common electronic publishing standards.
How, then, can we explain why Canada appears to have fallen behind the United States and Australia in publishing the law in electronic formats? Certainly, government insistence on asserting Crown copyright, perhaps in the hope that selling the law would be a good way to recover costs, has been one factor. Secondly, Canadian law schools have not found the funding to develop and host Canadian primary law materials that law schools in the United States and Australia have found. To the best of my knowledge, there has never been a direct grant to a Canadian university from any organisation or government for the purpose of publishing Canadian laws. The complexity of Canada’s legal system — its division of powers, decentralised federation and bilingual and bi-juridical systems — has been another factor that may have delayed the widespread publication of Canadian laws.
Finally, every time a court, tribunal or government decides to publish its laws, it generally decides to do so on its own website. This makes it more difficult to search across different legal databases, creates a disparity in the technical formats being used, and duplicates efforts. It is likely that considerable savings and considerable searching advantages could be realised if there were a single agency that had the mandate to publish the laws and judicial decisions in Canada.
A strong argument can be made that the term “secret law” is an oxymoron: if it is secret, it is not law. This view reads into the meaning of the word “law” the notion of the “rule of law”: laws are intended to guide people and governments in their conduct — in short, to be ruled by law. Laws are rules that are set down by recognised authorities, usually following prescribed procedures. One dictionary gives, as its first definition of the word rule, “a prescribed guide for conduct or action”. “Laws” that are secret cannot give this guidance, because people must have access to the instruments that are intended to guide them. Without widespread publication, the maxim that “ignorance of the law is no excuse” would be manifestly unjust. In fact, the law does allow ignorance of the law to be an excuse in some circumstances.
Aside from general theories about the meaning of “law” and the requirements of the “rule of law”, the importance of publishing law is recognised in more concrete ways.[5] In Canada, there are numerous statutory and constitutional requirements to provide “access to the law”:
a) constitutional requirements, such as a requirement to publish the law in both official languages, the recognition of the principle of no taxation without representation, and imposing requirements on judicial processes and the police to provide access to information as requirements of fair trials;b) statutory provisions that explicitly require publication of court decisions;
c) statutory and regulatory provisions that explicitly require publication of various documents that are used in connection with processes prescribed in statutes;
d) statutory provisions that expressly encourage or authorise agencies to educate people about the law;
e) the principle of open courts, and statutes that derogate from that principle (the Supreme Court of Canada has said, quoting Bentham: “Where there is no publicity, there is no justice. Publicity is the very soul of justice”);
f) statutory provisions that specifically require that government be given notice of certain legal issues, such as constitutional issues, and to be given notice of cases where certain kinds of highly sensitive information might be disclosed, and giving the government a right to appear and make arguments on those issues;
g) laws that require the defendants or victims of crime be given information about the legal proceedings that affect them.
Canada’s international trade agreements include transparency, notification and publication requirements (see, for example, Canada’s adhesion to various trade agreements under the World Trade Organization). For example, North Atlantic Free Trade Association (NAFTA) Articles 1802 and 1803 set out general publication and notification requirements. I have highlighted portions and added notes to the provisions that would be especially progressive if they applied to publication of all Canadian laws for the benefit of Canadians generally.[6]
Canada’s binding obligations to other trading countries, and foreign “interested parties” create a situation where, arguably, Canada has more express, detailed, legally binding obligations to publish its laws for the benefit of foreigners than it does with respect to its own citizens.
The above demonstrates that there is a wide variety of legal obligations on legislatures, governments and courts to publish the laws and to make available information that will assist people in participating in the making of those laws (and court decisions). However, despite these legal obligations to publish the laws, there is nothing that expressly requires governments or courts to publish the laws using modern media, to publish in a medium that has the potential to reach the widest audience, or to make the laws available at the lowest marginal cost of reproduction.
When writing was first invented, the notion of published “law” was not generally realisable. The religious pulpit and the town crier were the best ways of disseminating information. The invention of the printing press changed all that, and over time, all laws and court decisions were published using this modern medium. It would be unthinkable in the era of the printing press that legislatures would have the “option” of reverting back to pre-printing press media. In my view, in practice and, as seen above, sometimes by legal requirement, legislatures and courts have been required to publish the laws using the best available media.
Now that the Internet and CD-ROM technology have been generally perfected, it might be argued that legislatures and courts have a moral, and perhaps legal, obligation to publish laws in the medium that makes them the most accessible. It can be questioned whether the maxim “ignorance of the law is no excuse” deserves respect where a legislature, government or court chooses to restrict the publication of the laws to paper copies placed in a relatively few libraries, when the option of widespread, free publication on the Internet is clearly available.
In addition, in today’s mobile society and global economy, there is a greater need than ever for easy access to the laws of other jurisdictions. When couples separate and live in different jurisdictions, it becomes essential to have access to laws relating to family matters such as divorce, custody, support payments and child abduction. When family members get sick, have accidents or die while travelling, it becomes important to know the laws of that other jurisdiction as they relate to entitlement to health benefits, rights to sue wrongdoers for negligence, or intestacy. When consumers purchase items from companies in other jurisdictions, it can be important to know the laws regarding contracts, sale of goods and negligence in those jurisdictions. When individuals want to visit or immigrate to other countries, access to the customs, immigration and employment laws in that other jurisdiction can be very helpful. Companies engaged in trade with other nations need access to the trade laws of the other countries.
There are some who will note that not everyone has access to computers or to the Internet. This is obviously true, just as not everyone has access to libraries that hold paper copies of the laws, especially rural citizens and shut-ins. Clearly, not everyone is literate either. There will always be people for whom the law is generally inaccessible. However, the proportion of Canadians who have access to the Internet is on the increase, and publication of the laws on the Internet makes it possible for anyone with access to the Internet at home, at work, at a community facility or at an Internet café to access the laws, usually with considerably more convenience than resorting to paper copies, with vast cost savings when someone wants to obtain and store electronic copies of the laws, compared to paper copies, and with the enormous advantage of electronic search tools to help people find what they are looking for. In addition, electronic publishing makes it possible to publish laws in a far more up-to-date fashion than is possible with paper publishing. Thus, electronic publishing provides an entirely different quality of access to the law that cannot be measured simply by calculating the number of people who have access to the laws via computer.
Thomas Bruce, one of the founders of the Cornell Legal Information Institute, wrote in an e-mail to me dated 21 December 1998:
One would do well to look at the activities of non-lawyer professionals as intermediaries for people who don’t have Net access or don’t use it for this purpose. It has been our highly subjective impression, so far unexplored in any more rigorous way, that the quality and volume of reporting of [United States] Supreme Court decisions via local media such as small-town newspapers have improved as a consequence of reporter access to decisions via the Net. Many people have neither the time nor the inclination to immerse themselves in opinions, they just want to have someone tell them what the law is, but their situation can be improved enormously by giving better access to those they choose (or who are chosen for them) as intermediaries, like union officials, reporters, police officers, city managers, and so on. For any given opinion issued by the Supreme Court on our site, 7 times as many people will read the syllabus as read the majority opinion. So there are enormous, pyramidal, secondary effects here which may be in fact the most important part of all this.
As the saying goes, don’t let the perfect solution become the enemy of a good solution. A choice by courts and legislatures not to publish laws for free on the Internet represents a conscious choice to limit publication of the law. What could be more contrary to freedom of information and the rule of law?
CROWN COPYRIGHT
One view is that the Crown owns copyright in the law, and that copyright is administered by the executive branch of government. This view is perhaps most clearly seen in Attorney-General of New South Wales v Butterworth & Co. (Australia) Ltd.[7] In this case, the New South Wales Supreme Court Chief Justice, Long Innes, held that Crown prerogative gives the Crown the exclusive right to print and publish statutes, and that this right is in the nature of a proprietary right. The Chief Justice also suggested, without making a definitive finding, that if copyright were not contained in the Crown prerogative, it would be found to be covered by the Copyright Act then in effect. Thus, the government was granted a decree that Butterworth had no right to publish statutes. This decision has not prevented the development of a healthy legal publishing industry in the common-law countries, and Australia, as discussed in detail later, is a leader in making the law publicly available.
In the United States, the Copyright Act[8] prohibits copyright of federal information by the government. Thus, the US federal laws are in the public domain, and no copyright attaches. The same is true of court decisions given the decision of the United States Supreme Court in Wheaton v Peters[9] held that “no reporter...can have any copyright in the written opinions delivered by this court”. Issues relating to private-publisher copyright and court decisions in the United States are discussed later.
In Canada, leaving aside the question of Crown prerogative, the Federal Government has legislative jurisdiction for copyright law. Section 12 of the Copyright Act is the provision dealing with Crown copyright. This section gives copyright to the Crown in works that are “prepared or published by or under the direction or control of Her Majesty or any government department”.
An argument could be made that governments cannot hold copyright in the laws because the laws, statutes and court decisions are not prepared or published under the direction or control of Her Majesty or any government department, if these words are meant to distinguish between the executive branch of government and the law-making branches of government (parliament and the courts). In other words, it might be argued that s 12 protects works created by the executive branch of the government, and does not cover works created by Parliament or the courts. Under this argument, any implication that the executive branch of the government can “give” (or withhold) permission to copy the laws might be erroneous. However, there are no precedents upholding this argument, in part perhaps because there are no “copyright in the law” cases in Canada and exceedingly few elsewhere. There is a diversity of approaches to copyright in Canadian legislative materials between the various jurisdictions.[10]
Because the Federal Government was the leader in publishing statutes and regulations for free in Canada, and is responsible for the Copyright Act, it is instructive to take note of the Reproduction of Federal Law Order, PC 1996-1995, 19 December 1996. The preamble states the basic principles that support the copyright notice.
Whereas it is of fundamental importance to a democratic society that its law be widely known and that its citizens have unimpeded access to that law; And whereas the Government of Canada wishes to facilitate access to its law by licensing the reproduction of federal law without charge or permission; Therefore His Excellency the Governor in Council, on the recommendation of the Minister of Canadian Heritage, the Minister of Industry, the Minister of Public Works and Government Services, the Minister of Justice and the Treasury Board, hereby makes the annexed Reproduction of Federal Law Order.
REPRODUCTION OF FEDERAL LAW ORDER
Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.
The federal copyright notice that precedes this Order reads:
The Department of Justice is pleased to advise you that public access to primary federal legal information has now been improved. Federal statutes and regulations and the decisions of courts and tribunals can now be copied without the usual restrictions of Crown copyrighted materials. There is no requirement to seek permission and there are no fees. Please note that this measure applies only to federal Crown copyrighted material and has no effect on privately copyrighted material that is added to or packaged with primary federal legal information.
Another aspect to the question of who owns the laws is whether persons may request copies of statutes in electronic form under freedom of information laws. The issue is essentially whether freedom of information laws provide requesters with the right to choose the format by which the information should be provided, or whether governments control the format by which to deliver information requested under freedom of information laws.
In Tolmie v Canada (AG)[11] , McGillis J dealt with a case where Mr Tolmie requested, on 6 January 1995, under the Access to Information Act, the Revised Statutes of Canada in electronic form. “The preferred format is the existing WordPerfect 5.1 format that is presently used within Justice Canada for creating the Statutes. However, alternative formats such as the Folio format used on the CD-ROM produced for this purpose would be acceptable.” On 20 August 1995, the Department of Justice published the electronic statutes and announced they would soon be published on CD-ROM, which occurred in October 1995. The CD-ROM was priced at $225. McGillis J rejected Mr Tolmie’s request, on the grounds that the statutes were publicly available in electronic format and therefore excluded from the application of the Act under s 68(a).
In the United States, the Missouri Court of Appeals upheld a trial judge’s order that a requester be given the electronic version of the Statutes of Missouri, in Deaton v Kidd.[12] The Missouri government office responsible for the Statutes, the Revisor of Statutes, had a contract with two private-sector parties to sell the computerised versions of the laws, with royalties payable to the Revisor’s office. The court found that the Missouri equivalent to Canada’s federal Access to Information Act applied to the computerised version of the statutes. The law requires that “each public governmental body shall make available for inspection and copying by the public of that body’s public records”. The key issue was whether the Revisor had complied with the sunshine law by making only the paper version of the statutes available. The court found that he did not comply with the law, that the computerised version of the laws was a record and that the Revisor is required to make the computerised version available.
The trial judge said: “Although the text is identical, electronic versions of the statutes offer faster and more thorough research to a computer user”. Earlier in the decision, the judge noted:
The Revised Statutes on computer disk have additional features not offered by the book form. The annual computerised version integrates previous supplements into the main body of the Revised Statutes. There is no need to compare the hardbound books with the soft cover supplements. The computerised version allows the user to search all volumes in seconds by key word, phrase or statute number. The user is no longer limited by the index or his knowledge of where to look in the Revised Statutes to find a particular topic.
The Court of Appeals, per Lowenstein J, said:
Whether the Revised Statutes are public records is an easy question given a legal system which charges the public with having a knowledge of the law and proclaims that ignorance of the law is no excuse for its violation. As the trial court notes, “it is hard to think of a more important public record than the general laws of the state”. This court’s analysis is not affected by the fact that the public record at issue is on computer tape.[13]
The Court of Appeals noted that the Committee on Legislative Research has the power, by statute, to determine the form and price for selling the statutes, and that this power permits the committee to set a price higher than marginal costs. However, the court ruled that this power did not allow the committee to establish the price through bidding, “because it essentially limits access to a public record to those who bid the highest...Until the price is set by the Committee in the manner prescribed by 3.140, the tapes should be sold at cost as ordered by the trial court”.
Other US states have differently worded laws and, thus, different approaches to access to the electronic version of the statutes.
With respect to freedom of information relating to access to electronic databases of court decisions, there are two American cases on this topic. In Tax Analysts v US Department of Justice,14 the District Court of the District of Columbia considered a request for the Department of Justice’s Justice Retrieval and Inquiry System (JURIS), an electronic database of federal cases, regulations and digest material. The system was developed by the Department of Justice, and became operational in 1974. However, in 1983, the Department of Justice contracted with West Publishing to provide 80 per cent of the information in JURIS. West collected, organised and computer-formatted cases, opinions and digests to make them ready for use on JURIS. The contract limited how the US government could use the data it had contracted for. The data could not be:
The issue was whether JURIS was an “agency record” for the purposes of the US Freedom of Information Act, and specifically, whether JURIS was “under the control” of the Department of Justice at the time of the request. The court ruled that because of the above constraints on the use of the JURIS database, the database was not “under the control” of the Department of Justice and was not an “agency record” for the purposes of the Freedom of Information Act.
Tax Analysts is a non-profit organisation that publishes, in printed and electronic form, news and documents about tax matters, including summaries and full text of tax decisions by federal courts. It argued that West’s contractual limits on the use of the JURIS database were nothing more than an attempt by West to create a copyright or proprietary interest in public domain court decisions. They argued that the only value West added to the court decisions was “mechanical drudgeor machine-work”. The court was of the opinion that making the data machine-readable takes considerable time and effort, formatting consistent with JURIS conventions, “including text and file restrictions, paragraph indentations, centring of headings, and replacement of JURIS-unacceptable characters with an equivalent word or abbreviation”, and that this was something more than “mechanical drudgeor machine-work.” The court ruled (summarising other cases):
West has not attempted to license “public domain” data, but rather its electronic compilation of public domain data, which it is legally entitled to do. See West Publishing Company v Mead Data Central, Inc. 616 F Supp 1571 (D Minn 1985) (holding that West database is copyrightable because “while the data lies in the public sphere, the arrangement and pagination of this publication reflects the skill, discretion and effort of the person crafting the arrangement.”), aff’d 799 F 2d 1219 (8th Cir. 1986), cert. denied, 479 US 1070 ... (1987); see also Callaghan v Myers, [1888] USSC 285; 128 US 617, 649[1888] USSC 285; , 9 S.Ct. 177 ... (1888) (“such work of the reporter, which may be the lawful subject of copyright, comprehends ... that order of arrangement of the cases, the division of the reports into volumes, the numbering and paging of volumes ...”).
More will be said about the Mead Data case later, when this article discusses private copyright in public laws, but at this point, it important to note Mead Data was an affirmation of a preliminary injunction to stop Mead Data from publishing certain materials that cited West’s court reports. The case did not proceed to trial on the merits, as the parties settled the case following this decision. More importantly, the US Supreme Court issued an important ruling on copyright relating to databases (in that case, telephone books) that has left some courts and commentators to question whether Mead Data is still good law (this is also discussed in more detail below).
The approach taken by the District Court relating to the JURIS database is not the approach taken in Canada under the federal Access to Information Act. In Canada Post v Minister of Public Works,[15] the Federal Court of Appeal considered a case involving documents held by the Department of Public Works pursuant to a contract with Canada Post. The contract contained very strong confidentiality clauses. Despite the clauses of the contract, which strictly limited how Public Works could deal with the documents in question, the Court of Appeal held that the contractual provisions did not change the fact that the documents were “under the control” of the government department. The court emphasised in its reasons the importance of giving a broad interpretation to favour access to information.
In another US case requesting government-held electronic case law, Baizer v US Department. of Air Force,[16] the requester asked the Air Force to produce copies of US Supreme Court decisions held in its computer database. The US Freedom of Information Act applies to “agency records” but does not define that term, and the Records Disposal Act specifically excludes library reference materials. In this case, the court found that the Supreme Court decisions were not “agency records” but were “library reference materials,” and therefore the Act did not apply. The essence of the decision is this: “if material is maintained solely for reference purposes or as a research tool, and are not integrated into the agency’s files or relied upon for decision making, the records are not controlled by the agency and are therefore not agency records.” Part of the reasoning in Baizer was that agencies need to be able to refuse to disclose electronic records so that they have valuable databases that they can exchange with other agencies and private publishers for their databases.
Shortly after the Baizer decision, the government released the material on its own, with little explanation. The decisions are now available for free on the Internet,[17] prefaced by the following announcement:
I am pleased to announce that the U.S. Air Force has agreed to release a historic file of Supreme Court decisions from its FLITE (“Federal Legal Information Through Electronics”) system. The file consists of over 7,000 Supreme Court opinions dating from 1937 through 1975, from volumes 300 through 422 of U.S. Reports.
This file had previously been determined to be exempt from release under the Freedom of Information Act by the U.S. District Court for the Northern District of California. That decision was not appealed. Nonetheless, the Air Force has agreed as a matter of discretion to release these materials.
Sally Katzen, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, 25 September 1996[18]
In summary, a 1938 case that protected Crown copyright against a private publisher has not prevented Australia from moving to the vanguard in publishing its laws. In Canada, a decision limiting the right of an information requester to obtain a copy of the electronic version of the federal laws did not prevent the federal government from publishing those versions for free on the Internet (and at a relatively modest price on CD-ROM). In the United States, decisions under the Freedom of Information Act which limited public access to electronic versions of court decisions has not prevented free electronic public access to all Supreme Court and Federal Court of Appeals decisions. The legalities appear to be less important than the public policy decisions.
The publication of the law has always been privatised to a large extent. In Canada, only the Supreme Court of Canada and the Federal Court of Canada published their own reports on paper. From the earliest times, private publishers were the sole source for judicial decisions.
The earliest reports were truly reports — a private person sat in the court room and wrote down the judge’s oral reasons as accurately as the person could, but the result could not be verbatim and the private reporter claimed copyright in the resulting work. Over time, private publishers received copies of the decisions, so that the only work required of the publisher was to decide which judgements to publish, to choose an order for printing the decisions, and to add summaries (headnotes) to the decisions. The publishers might correct some typographical errors, add extra citations to court decisions cited by the judges and, of course, add page numbers for their own reports. In 1834, as noted earlier, the US Supreme Court ruled in Wheaton v Peters,19 that “no reporter...can have any copyright in the written opinions delivered by this court”. Nonetheless, because private publishing of court decisions creates private profits, many different report series have been created, some focusing on specific jurisdictions, some focusing on specific topics. What developed was that private publishers essentially monopolised the publication of court decisions, in part because courts felt the private publishers were already providing adequate access to the law and in part because publishing costs money and requires a certain amount of marketing, which the courts might be lacking.
Naturally, private publishers are motivated by profit. The decisions they choose to publish are the ones they hope will create the largest profit. Thus, for example, while corporate commercial law is very well covered by private publishers, poverty-law issues have not attracted much attention from them. Despite the thousands of administrative decisions concerning unemployment insurance each year, it is difficult to get access to those decisions from private publisher sources.
Recent court decisions have ruled that copyright does not attach to a party that compiles information or documents written from another source. Thus, other than the headnotes, private publishers probably do not have copyright in the court decisions they are publishing. They might claim copyright in the selection of court decisions, as long as there is an adequate degree of originality, skill or judgement involved in choosing the decisions. Simply publishing all decisions from a given Court of Appeal will not suffice. Nonetheless, there is some concern (especially in the United States, where publication of court decisions is more of a monopoly than in Canada) that private publishers might be able to use copyright claims to limit the availability of court decisions.
In Canada, the concern has now proceeded to a lawsuit between the Law Society of Upper Canada and three legal publishing companies, Carswell Thomson Professional Publishing, Canada Law Book Inc. and CCH Canadian. The Law Society makes photocopies of court cases and excerpts from other legal texts as requested by Ontario lawyers and judges, and for this service it charges a fee, which it says is intended to approximate plaintiff’s cost in providing this service. The publishers filed a statement of claim on 23 July 1993, but did not immediately pursue the action. The Law Society later filed an application for a declaration that its practice did not infringe copyright. The publishers then revived their original claim. The Law Society filed its amended Statement of Defence and Counterclaim on 2 March 1998. The publishers filed their Amended Reply and Defence to the Law Society’s Counterclaim on 8 April 1998. The trial has just been heard, and at the time of writing, we are waiting for the decision of the Federal Court Trial Division.
In essence, the publishers claim copyright over their publication of court decisions. The publishers claim that their works are copyright by virtue of the system of citations, cumulative indexes, headnotes, classification of cases, summaries of references to statutes and other reported cases, addition and verification of citations and the status of any appeals from reported cases. All of these elements are created independently of the actual text of judicial opinions, statutes and regulations. The publishers acknowledge that they have given both implied and express licences to lawyers to make copies from their publications on the photocopiers of their own law firm. Thus, the idea is to make it necessary for law firms to purchase the publishers’ publications. If the Law Society is permitted to send copies to law firms, the law firms may feel
it is unnecessary to purchase the publishers’ publications.
The Law Society claims that the publishers have no copyright in the text of the court decisions, that it only copies individual cases without any regard to the publishers’ selection and arrangement criteria, and that if there is copyright infringement by copying the headnotes, it is a fair dealing that is permitted by law. The Law Society emphasises that the copies it provides to its members are, in all cases, provided for the purpose of research or use in court. The Law Society denies that it makes a profit from providing this service, while the publishers allege that the Law Society is making a profit through its photocopying service. The Law Society claims that 90 per cent of the requests it receives are for individual judicial opinions, but other requests are for short passages from legal texts published by the Plaintiffs which summarise and explain the law.
The Law Society’s Statement of Defence states in a simple fashion: “The plaintiff has no copyright or right to assert copyright in publications which include or are based upon the primary sources of law which are created by the judiciary or the Crown”. The Law Society also notes that the Plaintiff:
takes full liberty in copying and publishing judicial decisions, legislation, regulations and other work for which it does not own the copyright, for which it does not pay, and in respect of which it has no authority to copy or publish, other than in keeping with the prevailing norm in relation to the free access and use of sources of law in Canada.
The Law Society argues that the publishers’ claims cannot be used to produce the result that the private publishers have a copyright over the text of the law itself:
The Plaintiff’s assertion of copyright in primary and secondary sources of law implies the possibility, if not the intent, to restrict their access and use, which is repugnant to the notion of the rule of law in Canada. Public policy in Canada requires that the dealing in the defendant’s publications, as hereinbefore set out, not be regarded as an infringement of any copyright which the defendants may own, but a fair dealing and use of such publications in the context of the administration of justice in Canada.
The public interest in Canada requires that there be unrestricted access to and free use of selected portions of published primary and secondary sources of law and that such portions be used intact, with their source clearly identified. The defendant’s dealing with the works as stated herein promotes equal access to the sources of law by members of the legal profession and the judiciary throughout the Province of Ontario in a manner consistent with the rule of law and the Canadian Charter of Rights and Freedoms. The defendant’s dealing with the Plaintiff’s works is justified in the public interest and it would be contrary to the public interest to restrict or restrain such dealing.
The Law Society argues that the publishers do not suffer any damages from its photocopy service, because use of the private publications in this way enhances their visibility and reliability in the marketplace and because the publishers account for this kind of photocopying in setting their purchase price. The publishers allege that this service does reduce its sales, that the purchase price does not take into account this photocopying service and, in any event, that the purchase price is not relevant to the issues at hand.
The publishers deny that they have a monopoly over the provision of any part of the body of law in Canada and they reject the view that there is a “prevailing norm” that permits copying from its publications. The Plaintiffs also note that the Law Society of Upper Canada itself is a legal publisher, of the Ontario Reports, and the Law Society asserts copyright in its publication of Ontario legal decisions, with this copyright notice: “No part of this publication may be reproduced or transmitted in any form or by any means, including photocopying or recording, without the written permission of the copyright holder”. The plaintiffs argue that this copyright notice means that the Law Society should not be permitted to make an argument that there is a public interest requiring the “unrestricted access to and free use of” legal publications.
The Plaintiffs also note that, in September 1996, they affiliated with the Canadian Copyright Licensing Agency (CANCOPY), and permitted CANCOPY to negotiate licences with lawyers that would permit them to photocopy works represented by CANCOPY. In April 1997, the Federation of Law Societies of Canada advised Canadian lawyers that it had serious concerns that CANCOPY’s proposed licence for lawyers was neither fair nor comprehensive. In the January 1999 edition of Canadian Lawyer, it was reported that CANCOPY has developed a new photocopying licence, for law firms, that would give all employees of a law firm permission to copy published works like law reports and textbooks without fear of exposure to copyright-infringement lawsuits. The licence would cost approximately $30 per employee per year.
The results of the Thomson et al v Law Society of Upper Canada legal copyright case will likely set a benchmark in Canada for what the law requires and permits with respect to private copyright of texts with content primarily created by the courts and legislatures.[20]
There is already a body of recent case law from the United States concerning private copyrights in the law. These cases do not concern photocopying of someone else’s publications, but merely a reference to those publications. The cases primarily concern West Publishing, which is now owned by the Thomson Group. The first of these cases arose from a successful attempt by West Publishing to obtain a preliminary injunction against Mead Data to prevent Mead Data from publishing electronic court decisions that told readers where the court decisions, and the precise pages, they were reading in electronic format were available in West’s print reports of the same decisions. The reference to West’s reports and page numbers is called “star pagination” (because of the symbols inserted in the body of the text to indicate West’s pagination). At the moment, legal citations all relate to paper publications. There is no adequate consensus method for citing electronic court decisions. West has a virtual monopoly on publishing US court decisions. Thus, the only way to publish electronic court decisions in a way that they can be cited by lawyers and others is to refer to West’s page numbers. By telling readers how to cite a legal opinion to West’s publication, it becomes possible to provide courts with meaningful citations without having to purchase West’s publications.
There is a certain surreal quality to the debate about whether there is copyright in page numbers — which has had the effect of limiting the publication of court decisions, and debating whether it is too onerous for courts to insert paragraph numbers in their decisions. It is difficult to see how either of these debates can enhance the reputation of the legal system, and both debates appear to distance the United States from its heritage of putting this information in the public domain.[21]
The alternative to referring to paper page numbers is to develop a consensus approach to citing electronic decisions. It seems fairly obvious to a number of observers that the electronic citation method will require courts to assign a unique identifier to each decision it renders, for courts to adopt a unique abbreviated name, and for courts to number the paragraphs in their decisions. Nonetheless, the debate continues, especially in the United States.
These types of recommendations seem to be better received in Canada than in the United States. In 1996, the Canadian Judicial Council, composed of all the Chief Judges and Associate Chief Judges of the superior courts across Canada, has recently created and approved a standard for the preparation of electronic court judgements. The standard includes the obligation for courts to include paragraph numbers. The implementation of this part of the standard is now well under way, such that today, the majority of Canadian courts are identifying the paragraph numbers in their judgements. The Canadian Citation Committee is currently consulting on a second standard that will create a uniform way to identify courts and to number court decisions, without reference to private publishers’ reports. These standards should avoid private publisher copyright issues, and will also make it possible to cite cases more uniformly. Uniform citation is an important way to improve access to the law.
If Canadian legislatures, governments and courts decide to follow Australia’s lead in publishing the laws, and adhere to the electronic publishing standards noted above, there should not be undue concern for the role of private legal publishers. Private publishers will always have an important role to play, because they can add value to legislation and to court decisions. A good example are various annotated Criminal Codes. The real value of these books, in addition to presenting the text of the Criminal Code, are the notes about the different cases that have considered different sections of the code, and editorial commentary. This is a tremendously valuable service for many practitioners, and electronic publishing of the primary law should not pose a threat to this value-added publishing.
The Australasian Legal Information Institute (AustLII) approaches the question of who owns the law this way:
We have intentionally treated it as largely irrelevant to the development of AustLII. Our approach is that the obligation of governments, courts etc. to provide access to the law is independent of any questions of ownership. Furthermore, since the most liberal copyright law still does not deliver an electronic copy of a statute or case to a publisher — and certainly not on a daily or weekly basis — cooperation by public bodies is essential, and such cooperation inherently involves them licensing the materials to you, even if they do claim copyright. So we have just humoured claims of copyright, and treated them as something we need not deal with (and be distracted by) in the primary task of establishing the principle and practice of free public access to these materials. We have not had the same problems in Australia with the commercial publishers as in the USA, so it has been easier for us to take this approach.
No Australian Court, Tribunal, or government agency that I can think of tries to sell primary legal materials (statutes, cases, treaties etc.) without also (at least) allowing a publisher like AustLII to provide free access, and/or provide it themselves. There is one State tribunal that is an exception, but even it is about to give AustLII one of its main databases.
Of course, copyright is still an important question. Among other things, it affects whether commercial publishers have to pay royalties to republish primary legal materials, and this also complicates arguments about free access. It affects the control public bodies can exert over how “their” data is presented. However, AustLII’s experience shows that the problems of copyright do not have to be solved before the principle of free public access can be established.
However, it is worth being aware that Ken Thomson’s company owns Canada’s dominant English-language legal publisher, Carswell, the dominant French-language publisher, Yvon Blais, and the dominant American legal publisher, West Publishing (in addition to a string of Canadian newspapers, among other holdings). Further, QuickLaw Systems currently enjoys a near monopoly in online access to electronic court decisions and legislation in Canada. It is prudent to be aware of this degree of corporate concentration in private legal publishing. When Thomson acquired West Publishing recently, it resulted in a US Department of Justice challenge that argued the merger was not in the public interest because it created too strong a monopoly in legal publishing. This resulted in some changes to the proposed merger, which alleviated the government’s concerns and which were approved by a court, although some observers have suggested that the government and the court did not do enough to protect the public interest.
The concentration of legal publishing is another reason why governments and courts should be more active in publishing their own laws and judgements electronically. Nonetheless, privatisation of the laws and corporate concentration should not unduly threaten public electronic access to the law. The only developments that can threaten free electronic access to the law would be choices by Canadian governments and courts not to publish electronically and not to make electronic copies available for free on the Internet. As governments and courts become more active in publishing their laws, one danger area to watch out for is “co-publishing” agreements with private publishers, where the contractual terms might preclude free access to the law. This is what happened with respect to the JURIS and FLITE databases in the US, discussed above. It is possible to avoid unintended limits on access to the law by self-publishing, by publishing with a non-profit organisation (such as a university), or by hiring private electronic publishers on a fee-for-service basis.
Certainly, an important issue facing governments that may wish to improve public electronic access to the law is cost. Publishing anything, in any media, is more expensive than not publishing. Canadian governments all face difficult decisions on how to allocate limited resources. Publishing laws electronically produces rather intangible benefits, especially when compared to spending on health care, welfare and education. These are irrefutable facts.
Governments have been looking for ways to save money in all budget areas, including publication of the laws. The Federal Government has stopped preparing a looseleaf consolidation of its laws (the last paper consolidation of regulations consolidated the regulations to 1978, and the last Revised [and consolidated] Statutes of Canada on paper consolidated the statutes to 1985, although those Revised Statutes were not actually published until 1988). Thus, the Federal Government has, clearly, concluded that electronic publishing is more cost-effective than paper publishing.
Another cost issue is the view held by some governments that the “government’s” information holdings are “proprietary” information that should be sold to raise revenues. Whatever one may think of this view with respect to government information generally, this view is especially suspect when it is applied to the law. There is a positive obligation on governments and courts to publish the laws, while this is not true for other government information (e.g. most information requested under freedom of information laws). While access to government information under freedom of information laws might be described as producing limited public benefits and often serving only the personal interest of the requester, the same cannot be said about access to the laws.
The provinces of Saskatchewan and Manitoba, among others, charge fees for access to their statutes. Andrew Hubbertz, Head of Government Publications for the University of Saskatchewan Libraries, wrote about this issue recently. He noted that Manitoba is offering access to its statutes for an annual subscription of $275, while Saskatchewan is charging $95 per year. He reports that Saskatchewan has sold a total of 570 subscriptions, some of which are trial or complimentary subscriptions. Of the 570, fully one-third were purchased by Saskatchewan government agencies. Hubbertz wrote that whenever government sells information, the sales almost always follow this pattern:
Governments never recover more than a small fraction of the cost of providing the service, often netting out at zero or less when overheads like marketing and negotiating of license agreements are factored in; Governments would rather sell information at a high price to a small number of “must have” users, than at a low price to many users; Government itself is the largest consumer of government information.
Hubbertz asks:
Given free access, the statutes and regulations could be made available online in schools and libraries throughout the province, and in every home or office with a computer and an Internet connection. Does anyone know of a cheaper or more cost-effective way to promote democracy?
It is important to make the laws as accessible as possible for a number of reasons.
First, as noted above, so that people are better able to guide their behaviour by the laws. Increasing the ability of citizens to know the law increases the likelihood that they will comply with it, and compliance is always less expensive than non-compliance (and the inspection and enforcement regimes that deal with non-compliance).
Second, accessible laws are essential for letting people know what their legal rights are. Unknown rights are no rights at all. If we seriously believe in human rights and social benefits, these must be made known to citizens.
Third, wide accessibility to the law is important for improving the quality of democratic discussion in Canada. The more access Canadians have to their laws, the more they will be able to participate in debates about the contents of those laws. (That they might choose, for various reasons, not to use that access to participate in policy debates, or that the laws might be too complex for many to fully understand, is no justification for limiting access to the laws.) As the cost of making this information goes down, it becomes increasingly difficult to justify the lack of available information from the parliamentary and judicial processes for which the taxpayers have already paid.
Fourth, as mentioned earlier, there are many cross-jurisdictional contexts where improved access to the law would make international trade, family law, contractual negotiations, estate planning and many other common events easier.
Fifth, improved access to the law could significantly reduce costs associated with complaints, claims and litigation that would not be launched if individuals had a better understanding of how courts and tribunals have already interpreted the issues they wish to raise. This might be especially significant for routine administrative hearings relating to things such as employment insurance, tax and immigration matters.
Sixth, as government makes more primary legal information available for free on the Internet, this will help reduce the costs of commercially produced legal information, because commercial publishers will have reduced costs for the primary materials they intend to publish. In addition, commercial publishers will have to add more value to their publications, because they would no longer have a market to sell primary legal materials without adding any value.
Seventh, where all the official sources make their legal materials available for free on the Internet, it is quite likely that each of those official sources will save money by avoiding the purchase of expensive case reports series and subscriptions to electronic case-search services. Whatever revenue the official sources might make from selling their portion of the laws, the savings would quite likely exceed those revenues, although I do not know of any studies that compare costs associated with government and court purchases of primary legal materials to the revenues generated by selling primary legal materials.
The various benefits that derive from the best access to the law that modern publishing techniques will allow combine to argue that governments and courts should not view law as “proprietary” information, should not see publication of the law as a way to raise revenues, and should not put the burden of paying for the publication of the law on individuals. Everyone benefits from the publications of the laws, even if only a small proportion of persons actually access the laws. (And it should go without saying that improving public access to the laws would benefit far more people than just lawyers, although there are still some who hold the view that the laws are somehow the exclusive concern of lawyers and judges.) The estimates of who uses AustLII22 should refute any notion that only lawyers and judges use the laws, as would even a moment’s consideration of the number of businesses affected by some form of regulation or other, or by rulings in workplace sexual-harassment cases, or the number of people who buy tax-preparation or will-preparation products each year, as just three examples.
There are still some jurisdictions in Canada where governments choose to make the laws available electronically only to those who can pay the government’s fee. There are other jurisdictions in Canada where electronic access is not available at any price. (It must be noted that on the databases provided by the private company QuickLaw, virtually all federal and provincial statutes and regulations, as well as almost all court decisions and an impressive array of administrative tribunal decisions, have been available electronically, to those who can pay, for more than a decade.) All laws, statutes and judicial decisions and the rest are now written electronically from the outset. Converting the word-processing files to Internet-compatible files should not be prohibitively expensive.
At the end of the day, the cost of publishing the law is a cost of democracy. Democracy has certain inherent costs that must be borne by the entire society for the benefit of society. Publication of the laws should not be seen as an optional expense, as government’s proprietary information and should not fall into a user-pays model.
In a paper written for the October 1998 conference of the Association pour le développement de l’information juridique, Ed Hicks of the Federal Department of Justice suggested a perspective that I support. He invited conference participants to see parliament, legislative assemblies and courts as organisations that produce a key product: laws. He then suggested that we should look at what it costs to run these organisations — salaries, overheads, etcetera, and compare that to the budgets that are dedicated to actually publishing the product that those organisations produce. The result is that very large sums go into running those organisations — that is, go into producing their product — and less than one percent is spent on getting the product out (i.e. publishing the laws).
While it is obvious that cost is a factor to explain why Canadian laws are not fully accessible in electronic format for free, why would cost be a more important factor for Canada than for Australia? In any event, it is not clear that anyone in Canada has done a careful cost analysis of the Australasian Legal Information Institute or the Tasmanian Legislation System Project to assess just what it would cost for Canada to establish a similar resource here. It was noted earlier that AustLII runs with a full-time staff of six and on a budget of approximately $400,000 per year for the next three years, and the Cornell Legal Information Institute runs with a full-time staff of three, two of whom also have teaching and committee responsibilities, and a half-time administrator.
AustLII has rejected using commercial advertising in providing public access to the law on the Internet. It noted that many Internet search engines now determine the advertisements that users see by the search terms they enter. “It seems no coincidence that when you search one popular Australian search engine for “sex discrimination”, you get back lurid advertisements for sex aids.”[23] However, AustLII does acknowledge which organisations provide funding to support the provision of particular databases, on the front page of the database, with a statement and a link to the funding bodies’ website. This is in place for the New South Wales Law Foundation (re databases of NSW and Commonwealth primary materials), Australian Business Chamber (industrial law), and the Department of Foreign Affairs (treaties).
It should also be remembered that governments have always played an important role in providing access to the law. The first printing presses in Canada were run by King’s Printers. The statutory requirement that the Supreme Court and Federal Court publish their own reports certainly requires substantial funds. More than 30 years ago, in 1966, the Federal Department of Justice provided funding to a joint project involving both Queen’s University and the University of Montreal. This was the origin of Quic/Law. The Department of Justice stopped providing funding in 1973. In 1968, the Federal Department of Justice, the Quebec government, and the Canada Council provided funding to a project called DATUM (Documentation Automatique des Textes Juridiques de l’Université de Montréal). The project was to establish a database of Supreme Court of Canada decisions. DATUM was eventually taken over by SOQUIJ. In 1973, the Canadian Law Information Council (CLIC) was incorporated and the federal government was a major funder. CLIC subsidised the compilation of electronic legal databases, opened service centres, and was engaged in a wide variety of efforts to make Canadian legal information more accessible, but governments withdrew funding, and CLIC ceased its operation in 1992.
Governments jointly fund Public Legal Education and Information (PLEI) organisations across the country. This led to the development of an electronic network and library for PLEI organisations to communicate and share information. This eventually led to the creation of the Access to Justice Network (ACJ Net), funded by the Federal Department of Justice. ACJ Net has been providing free public electronic access to Canadian legal information for a number of years. The PLEI program and ACJ Net have primarily concentrated on secondary legal information for particularly vulnerable audiences. In fact, less than 10 per cent of the ACJ Net resources were devoted to the distribution of primary legal materials. In addition, by contracting with the Université de Montréal since 1996 to host its website,[24] the Federal Department of Justice has certainly helped make the Université de Montréal a centre of expertise in publishing primary legal materials. Thus, Canadian governments have been involved in funding access to the law for a very long time. That said, Canadian institutions — and, in particular, law schools — have not found the funding sources and access to electronic copies of primary legal materials that their counterparts in the United States and Australia were able to receive.
A final cost consideration is that if an organisation similar to AustLII existed in Canada (and if public bodies provided their data to AustLII and shared the costs of a Canadian version of AustLII), this could produce significant cost avoidance. I am convinced that all jurisdictions will eventually have to publish their laws on the Internet for free. Do they all have to invest in expensive computers, search engines and expertise in electronic formatting so that each can publish their own materials, with the result that it is difficult to search for information across the various jurisdictions? Would it not be less expensive for the taxpayer for the various jurisdictions to invest in a central electronic warehouse to receive the electronic files, convert them to a uniform format, and present all of them on a platform that can be searched by one search engine? In my view, a Canadian version of an AustLII would probably present an opportunity for cost savings and improved service to citizens through cooperative federalism.
It is possible to imagine a scenario of improving access to the law that could include the following elements. It is crucial to emphasise that it is not necessary to proceed on all elements at once, and the inability or expense of proceeding on some of these elements should not be used as an excuse not to proceed at all.
Finally, all of the above should be available at a single site for each jurisdiction, and again at a single site for all Canadian jurisdictions. There should also be a consistent approach to electronic access and copyright between the various Canadian jurisdictions.
The above is a wish list. The costs of achieving the above should not be astronomical, especially when compared with the overall costs of supporting legislatures and the courts. For the most part, none of the above suggestions requires new or unproven technologies. Virtually all of the above suggestions have been developed and implemented with success somewhere else already. While the costs should not be prohibitive, there is a legitimate question about coordination and sharing of costs between federal, provincial and municipal governments, and courts and administrative tribunals. It may be that law foundations, law schools, and law societies might also contribute funds, expertise, computers or labour to the above efforts. These coordination issues are not so complex that they should result in paralysis.
In this article, I have not attempted to set out an action plan for implementing the above dream for electronic access to the law. That will come later. The first order of business is to explain the dream. The second order of business is to get others to share the dream and help create the impetus that will catch governments’ and courts’ attention. After that, an action plan will have to be developed and resources found. Until these things happen, Canadians will continue to watch Australians and Americans have significantly better electronic access to their laws than we do to ours.
Finally, it should be remembered that while we might be lagging behind the Australians and the Americans, we are doing well compared to most other countries. There are a number of jurisdictions in Canada that have made their electronic statutes, regulations, bills and Hansard accessible to the public for free. A number of municipalities are putting their by-laws on the Internet. The Supreme Court of Canada, the Federal Court of Canada, and the British Columbia, Ontario and Alberta superior courts are putting their court decisions on the Internet, as are a small but growing number of administrative tribunals. Canadian law schools are developing impressive Canadian legal resource sites. Governments, universities, schools and libraries are undertaking a variety of steps that makes access to the Internet more available to the Canadian public. Leading examples include Industry Canada’s School Net and various freenets across Canada.
It is extremely unlikely that any jurisdiction that has published its laws on the Internet for free will ever stop doing so, and it is very clear that the trend is for all jurisdictions to improve free electronic access to the law, so the above wish list may simply be a matter of time. Thus, while we may have dreams for better access, the reality is that the train has left the station and it is moving in the right direction, although some of us would like to see the train pick up a little speed.
[1] The views expressed here are those of the author and are not intended to represent the views of the author’s employer.
[3] http://www.usask.ca/library/gic/16/mcmahon.html
[4] See http://www.austlii.edu.au (hereafter called the “longer paper”) for a detailed account of the state of electronic access to the law in Canada today.
[5] The longer paper cites the specific provisions of various Canadian statutes that impose obligations to publish the laws.
[6] See the longer paper for these examples.
[7] Attorney-General of NSW v Butterworth & Co. (Australia) Ltd (1938), 38 NSWSC 195.
[8] 17 USC Section 105 (1988).
[9] [1834] USSC 14; 33 US 591 (1834).
[10] The longer paper summarises the copyright notices and permissions given by each of the jurisdictions in Canada.
11 Unreported, FCTD, 14 October 1997.
[12] 932 SW 2d 804 (1996). Upholding Circuit Court of Cole County, No CV193-1426CC, 21 November 1994
[13] 932 SW 2d 804 (1996), p. 806.
[14] 913 F.Supp. 599 (DCC 1996).
[15] Unreported, Federal Court of Appeal, 10 February 1995.
[16] 887 F Supp 255 (ND Cal. 1995).
[17] http://www.fedworld.gov/supcourt/index.htm
[18] http://www.cptech.org/legalinfo/flite.text
[19] [1834] USSC 14; 33 US 591 (1834).
[20] I am not referring to secondary legal materials, only to reports of court decisions and publications of statutes and regulations.
[21] See longer paper for a comprehensive review of US case law concerning “star pagination”.
[22] Cited in the electronic version of this paper.
[23] See electronic version for further citation.
[24] http://www.canada.justice.gc.ca/
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