Graham Greenleaf AM Professor of Law & Information Systems, UNSW Australia, and Co-Director, Australasian Legal Information Institute (AustLII) ITTIG, Florence, 29 June 2015 THE MEANING(S) OF FREE ACCESS TO LAW: ARE THERE DIFFERENT COMMON LAW AND CIVIL LAW PERSPECTIVES?

Opening observations 1.‘Free access to legal information’, in some form or other, has been achieved to a significant extent in most countries in the world over the 20+ years since 1992 and the birth of the WWW. 2.Free access to law is just as common in civil law countries as in common law countries. However, it usually takes a very different form in civil law countries (provided almost entirely by the State) than it does in common law countries (provided by Civil Society as much as by the State). 3.Similarly, there is great difference between most members of the Free Access to Law Movement (FALM) from common law countries (‘LIIs’ that republish or even first publish ‘official’ legal information) and those from civil law countries (whose role is not so clearly defined). 4.The Declaration on Free Access to Law does not reflect these differences, and we do not fully understand these differences. 5.This seminar explores these differences, and why they exist.

Seminar overview What I will cover: 1.Publication in the history of the common law 2.20 years ago: Why, and where, did free access to law emerge? : What differences in free access practices have emerged between the common law and civil law worlds: (i) in national systems?; and (ii) in multi-national systems? 4.The 20 year evolution of free access to law principles: Where do civil law countries (and FALM members) fit? Mainly the role of other participants: 4.What does free access to law mean in civil law countries? 5.What is (and should be) the role of FALM members in civil law countries? Question for everyone: 6.What should be the free access to law movement’s global objectives? 7.What can common law and civil law practitioners of free access to law learn from each other’s experience?

1 Publication in the history of the common law Some relevant factors in the history of the common law: 1.Case law and the system of precedent was essential from early in its history; large areas of law consisted (and still do) almost entirely of case law; ‘codification’ was uncommon and did not supplant case law. 2.Private parties published case law, not the State; did so until the Internet; non-profit Councils of Law Reporting played a key role from 1860 in the UK and elsewhere, but failed to be affordable. Some Courts now prefer to receive judgments published by AustLIIprefer to receive 3. Legislation was not ‘the law’, and often meaningless in the absence of case law; useful publication required both. AustLII publishes and interlinks both and is more accessed than all government services 4.The State published legislation – but usually did it badly. It was necessary to rely on private publishers for everything. AustLII publishes the only ‘point-in-time’ version of NSW State statutes 5.The common law was inherently international (in practice in the colonies, and in theory even in the UK). Ability to access foreign cases (and therefore statutes) was important to domestic law. What similar factors (if any) applied in the history of civil law jurisdictions?

2. 20 years ago: Why, and where, did free access to law emerge? Pre-Internet, most participants in the legal systems in common law countries would have assumed and accept: That publications stating the law were mainly produced by private parties. That non-profit NGOs had a key role, as well as commercial publishers. That it was desirable to combine publication of case law and legislation. From , across common law countries, computerised provision of legal information had very little success: State-provided services were rare, poor, expensive and with few users; Commercial services had improved little in 25 years, were very expensive, and had very few users (USA a partial exception). In some countries (eg Australia) the State was granting commercial monopolies in online legal information (1980s/90s) In all countries, State entities controlled access to digital official data In some countries, doctrines of Crown Copyright made this worse

20 years ago: Why, and where, did free access to law emerge? (2) Founding of Free Access to Law Movement (FALM) All founding members of FALM (2002), and drafters of the Declaration were from common law countries (USA, Australia, Canada, Pacific Islands, Hong Kong and South Africa). The first FALM member from a civil law country was ITTIG (2005), followed by UAB/IDT and 4 other civil law country members in 2008/8. Conclusions: 1.In common law countries, the history of legal publishing made it easier for Civil Society LIIs to be created and be involved. 2.Monopolistic practices in some of these countries provoked a strong ‘free the law’ reaction. 3.The origins of free access to law examples (LIIs), the principles/declarations of the movement, and its organisation (FALM), were all deeply rooted in common law approaches, and did not fully reflect civil law approaches.

: Differences in free access practices (A) National practices (common law and civil law) Common law jurisdictions Globally, of 60+ (English) common law jurisdictions, and 10 or so (US) common law jurisdictions, both legislation and case law is generally freely available But a State-run service rarely provides both In more than half of these Civil Society LIIs are at least of equal importance to the State as publishers – and sometimes the only online publisher. Eg PacLII: only free access publisher for 16/19 island countriesPacLII Civil law jurisdictions Globally, probably 150+ jurisdictions; the majority have State-run free access services; usually for either legislation or cases Civil society LIIs republishing legislation and/or case law very rarely exist

2015: Differences in free access practices (B): Multi-State practices: Common law jurisdictions Citation standards have come from civil society LIIs No multi-jurisdictional citation official standard for case law citations, but publishers of case law from 300+ courts in at least 30 countries use the same ‘neutral’ citation standard started in Australian courts, officially adopted in the UK and elsewhere AustLII’s LawCite is a multi-national LII common law citator (4.7M citations)LawCite No multi-jurisdiction legislation identifiers/ standards Multi-state portals have come from civil society LIIs No ‘official’ multi-jurisdictional portals for common law States or courts, nor any attempts to start them CommonLII provides 1430 databases via LIIs in FALM, from at least 40/60 (English) common law countries – all of this is republished by Civil Society ’LIIs’; CommonLII was ‘endorsed’ by a CHOGM communique CommonLII PacLII, SafLII, AfricanLII and BAILII are regional LII portals

2015: Differences in free access practices (B): Multi-State practices - Civil law jurisdictions 1.In Europe, sophisticated multi-State tools emerging ELI (legislation citations) and LegiVoc (thesaurus) – emerging tools ELILegiVoc ECLI (case citations) – significant uptake by States ECLI Much ‘legal semantic web’ research 2.Few Civil Society LII portals for civil law regions No ‘EuroLII’; no ‘LatinLII’; AsianLII has mainly common law content OpenLaws Search – effectively “EU law via Google” (‘parasitic spider’ model); fast but limited to what Google can search OpenLaws Search WorldLII’s European Law project – prototype databases, mainly in English; republication model; fast results, ranking etc WorldLII’s European Law project

2015: Differences in free access practices (B): Multi-State practices - Civil law jurisdictions 3.Many attempted ‘official’ multi-jurisdictional portals N-Lex (EU Comm, 2006-) N-Lex (EU Comm, 2006-) – EU national legislation portal; translates searches from language of user to language of national legislation database engine [makes use of EuroVoc – any use of ELI??]; has never had a multi-country search (ie not federated search) N-Lex EU Supreme Courts Case Portal (2006-) – Federated search of up to 21 countries’ case law; response time reasonable, but may fail if more than 5 countries selected; uses translation facility; includes BAILII and CyLaw. EU Supreme Courts Case Portal DEC.NAT (2007) – ‘ 27,700 references to national decisions’ on EU law; metadata search (uses ECLI?); links to original decision; [also searches full text of decisions??]; fast DEC.NAT JuriFast (ACA)– Questions to ECJ, answers and national decisions; centralised metadata (including decision summaries); fast JuriFast

2015: Differences in free access practices (B): Multi-State practices - Civil law jurisdictions (2) JURE (EurLex) – Recognition & enforcement of judgments; centralised JURE Codices (CoE Venice Commission) – European constitutional cases and laws Codices– EurLex – superb, multi-lingual but not multi-jurisdictional, only EU law; but also has multi-jurisdiction facility including some national laws/decisions EurLexmulti-jurisdiction facility JURICAF – ( L’AHJUCAF, Supreme Court association ) centralised full text search of over 800,000 decisions from 43 francophone countries; very fast, consistent interface JURICAFAHJUCAF Conclusions: 1.Federated search is much less effective than centralised searching (where it can be achieved); centralisation of full texts is unusual, more common with metadata and/or summary (+link to source) 2.The francophonie has been more effective than Europe in developing multi-jurisdictional case law searching, using centralisation 3.Multi-country official civil law portals are not known outside the EU and the francophonie

2015: Differences in free access practices (C): Practices of FALM members Practices of FALM members (currently 50 members)50 members 75% of FALM members are from common law countries Almost all FALM members from common law countries are significant republishers of primary legal information. LII databases are often the only online publications available for free Few of the FALM member from civil law countries republish major quantities of primary legal information Exceptions include members from Mexico, France, Ethiopia Many publish significant commentary (eg members in Italy, Spain, Germany) But what other roles do they have in common? Conclusion: FALM members’ roles differ substantially between common law and civil law countries

(3) Development of free access principles , and beyond Six influential statements of ‘free access’ principles to 2012: 1.The example of the LII (Cornell) & Lexum (1992-5) (USA/Canada) 2.AustLII’s demands on official providers (1995) (Australia) 3.FALM’s Declaration on Free Access to Law (2002) (Global?) 4.The Hague Conference ‘Guiding Principles’ (2008) (Global) 5.Law.Gov principles for repositories (2010) (USA) 6.UELMA - Uniform Electronic Legal Materials Act (2011) (USA) These 6 statements give us a working hypothesis of what ‘free access to legal information’ means (Greenleaf, Mowbray & Chung ‘The meaning of free access to legal information: A 20 year evolution’ (2013) Journal of Open Access to Law) Further developments since 2012: 7.HccH /EU joint conference Resolution (2012) (Global)

Development of free access principles , and beyond Questions: 1.How well do these principles fit access to legal information in civil law countries (in Europe, Latin America and Asia)? 2.What is the role of FALM members in these countries (eg ITTIG, IAB), and do these principles explain that role?

2 AustLII’s obligations of official sources (1995) AustLII (1995) advocated 6 obligations of official legal data sources, as necessary for ‘full free access’: 1.Provision in a completed form, including additional information best provided at source (eg consolidation) 2.Provision in an authoritative form, including citations 3.Provision in the form best facilitating dissemination 4.Provision to any 3rd-P republisher on a marginal-cost-basis 5.Provision with no re-use restrictions or licence fees 6.Preservation of a copy by the public authority Main point: Source self-publication (ie by the State or courts) is only useful (more choice), not essential. Right of republication is essential.

3 FALM’s Declaration on Free Access to Law (2002) Free Access to Law Movement Declaration implies 10 principles, some additional (as highlit) to the AustLII principles: 1.‘Public legal information’ is ‘digital common property’ and part of mankind’s commons 2.Access to it should be free of charge & non-profit 3.Government bodies that create or control it should provide access for republication 4.3rd parties (LIIs) have the right to republish it 5.Publicly funded scholarship should be free access 6.Free access is anonymous access 7.Local initiatives have primacy, but LII networks are encouraged

FALM’s Declaration (2002) 8.Reciprocal international benefits of free access 9.Mutual support is an objective of LIIs 10.LIIs must not impede others from obtaining access to data from official source For 10 years this Declaration has influenced both free access providers and official data sources. Conclusion: FALM’s Declaration also made the ‘right of republication’ central, and did not put any emphasis on the obligations of the State to publish; it also stressed freedom from surveillance.

4 The Hague Conference ‘Guiding Principles’ (2008) ‘Expert’ meeting on Global Co-operation on the Provision of Online Legal Information (October 2008) Called by Permanent Bureau, Hague Conference on Private International Law, October 2008 Over 30 free access to law providers, major law libraries, and conflict of laws experts - equally from common law and civil law countries Issue: How can online free resources be used as evidence of overseas laws in disputes with trans-border elements? Result: An agreed set of 15 ‘Guiding Principles’ that States should adopt as part of a possible ‘Hague convention’ States to agree to ensure that their main legal materials are available for free access (only proposed obligation) Many steps are then ‘encouraged’ to facilitate this

Hague principles: Essential elements (New elements highlit) 1.Ensuring free access – only obligation State must ensure that their ‘main’ legal materials are available for free access in electronic form by anyone 2.Republication - to allow and facilitate others reproducing & re-using their legal materials, and remove any impediments 3.But 1 and 2 must respect local privacy laws concerning case law (and to anonymise if necessary) Principle 1 makes the role of the State more central; but principle 2 balances this with the right to republish.

Key elements in the 15 Hague principles (2) Authority, integrity & admissibility 4.To make available authoritative (official) electronic versions of their legal materials 5. To ensure they can be re-published or re-used with their integrity (authenticity) and origins clearly indicated. 6. To remove obstacles to their admissibility in their courts Application of principles 4-6 to both official publishers and NGO republishers is the main Hague GP contribution

Why are these 3 Hague elements so significant? Principles 4-6 can be interpreted to imply obligations to ensure: i.Court-issued authorised/official versions of cases no monopoly given to one publisher as at present ii.Authorised/official online legislation iii.‘Downstream’ authentication of all legal documents Courts & legislatures to provide authenticated versions (eg digitally signed) to all republishers, so they can distribute them with authenticity/integrity intact iv.Courts must regard as admissible these republished versions, as both authoritative and authentic GPs 4-6 are their strongest ‘anti-monopoly’ aspects; the HccH/EU Declaration endorses (I) and (ii) above (only).

The 15 Hague principles (4) 7. to preserve their legal materials (to ensure availability) 8. to adopt neutral methods of citation (internationally consistent) 9. to use open formats and metadata 10.to provide translations in other languages (if possible) and to allow their reproduction 11.to develop multi-lingual access capacities 12.to make any knowledge-based systems available for free public access and re-use 13.to use networking and interoperability 14.to provide support for providers of free access 15.to cooperate internationally in fulfilling these obligations Conclusion: The last 9 Hague principles seem to cover many more aspects of what FALM members in civil law countries do.

5. Law.Gov principles (2010) Law.Gov - legal repository run by Public Resources.org - 15 Workshops led to 9 principles by US participants: 1.No fees for disseminating primary materials 2.Opposition to copyright in primary materials 3.Bulk download mechanisms open to anyone 4.Documents should have authenticity and integrity 5.Historical archives should be available 6.Neutral citation mechanisms should be used 7.Structure, identifier & metada standards should be used 8.Documents should be in open, best, formats & final form 9.Govts should sponsor research (eg automated redaction) Conclusion: These US principles also place more emphasis on metadata, formats etc

6 UELMA: Uniform Electronic Legal Materials Act (2011) Draft Act from US National Conference of Commissioners of Uniform State Laws Enacted in 11 jurisdictions, and Bills in at least 5 other States Strongly influenced by Hague Principles First national implementation of part of them Whenever a State only provides an electronic version, it becomes ‘official’ State can choose to make other versions ‘official’ ‘Official’ = ‘authorised’

UELMA (2011) Consequences of a version being ‘official’: 1.Must be ‘authenticated’ (ie so integrity can be checked by recipient) 2.Presumed to be accurate (rebuttable) 3.Presumed also for States with similar laws 4.Records must be preserved permanently 5.Records must be kept ‘reasonably available’ 6.Official publishers must consider compatibility with State/ national standards Conclusion: The UELMA standards need consideration from both common law and civil law approaches

1992 to 2012 evolution of free access: Many principles, but consensus Table in 2012 paper identifies 30 separate principles, on which the last 5 sets are mapped There is a remarkable overlap (and no conflict) between all these sets of principles FALM has now added endorsement of the Hague GPs and the Law.Gov principles to its Declaration But the principles serve two distinct purposes A set of ‘obligations’ States should try to achieve A definition of a provider of ‘free access to legal information’

Obligations of States arising from free access principles ( ) Conclusions from the first 6 statements to 2012 (from Greenleaf et al 2013) 1.The State should provide all primary legal materials to other parties to republish, without fee, in the most complete, authentic and authoritative form possible, so republication can preserve authority and integrity. It should remove legal impediments to use of the materials. If necessary, the State should provide free access to these materials. This still emphasised the ‘common law approach’ of republication. 2.To support republication, the State should archive historical materials, use neutral citations, and open standards, provide available metadata, bulk downloading facilities (subject to privacy laws and practices). The State should anonymise materials where that is necessary. This was more consistent with civil law priorities of improving State practices.

Definition of a ‘free access provider’ arising from free access principles ( ) Brief definition from the 6 sets of principles ( ) “An organisation provides free access to legal information if it provides to all users anonymous, free-of-charge and non-profit access to all online legal materials it provides from a jurisdiction. It should not impede any other republisher from obtaining access to the sources of the materials, and should adhere to relevant privacy laws.” Conclusion: This definition has a clear common law bias It assumes that all FALM members have a direct role in providing access to legal information (publishing or republishing) It does not adequately reflect the roles of FALM members or other parties involved in free access in civil law countries. What is need is a redrafting of free access principles to better reflect the role of both State and Civil Society parties in civil law contries.

7. HccH /EU joint conference Resolution (2012) February 2012: Joint Hague Conference (HccH) / EU conference involving State parties unanimously resolved: “Mindful of the “Guiding Principles to be Considered in Developing a Future Instrument” (annexed hereto) proposed by the experts group convened by the Hague Conference on Private International Law in October 2008, the conference confirms that States should make available without cost to users legislation and relevant case law online. Such information should be authoritative, up-to-date, and also include access to law previously in force.” The highest level official endorsement for free access to law ‘Mindful’ of Hague ‘Guiding Principles’ (GPs) but without adopting them Expressly requires that States make law available for free access No express recognition of any right of republication by 3 rd parties Conclusions: If FALM and civil society parties are going to influence the direction of access to legal information, they will need to be far better organised and with more comprehensive principles, or States will simply set the future agenda globally.

References Greenleaf, Mowbray & Chung ‘The meaning of free access to legal information: A 20 year evolution’ (2013) Journal of Open Access to Law Greenleaf & Peruginelli ‘A Comprehensive Free Access Legal Information System for Europe’ On Line Access to Legal Information, Firenze, Italy, [EU] Council Report on access to law (2015/C97/03) c97/2 OJEU 24/3/2015 van Opijnen, M ‘The European legal semantic web: Competed building blocks and future work’ SSRN American Association of Law Libraries Progress Report: UELMA Advocacy in 2015 and Beyond (Online Advocacy Training) AALL Government Relations Office, May 13, 2015