1. Full free access to law: Global policy aspects Professor Graham Greenleaf Graham GreenleafGraham Greenleaf Co-Director, AustLII & WorldLII 6th Law via Internet Conference Paris, November 2004

2. Free access to law movement Participating LIIs Participating LIIs AustLII - Australia AustLII - Australia BAILII - Britain and Ireland BAILII - Britain and Ireland CanLII - Canada CanLII - Canada Droit Francophone - 18 countries (mainly African) Droit Francophone - 18 countries (mainly African) HKLII - Hong Kong HKLII - Hong Kong JuriBurkina - Burkina Faso JuriBurkina - Burkina Faso LII (Cornell) - US Federal LII (Cornell) - US Federal NZLII - New Zealand NZLII - New Zealand PacLII - 14 Pacific Island countries PacLII - 14 Pacific Island countries SAFLII - South Africa SAFLII - South Africa WorldLII databases - International Courts etc WorldLII databases - International Courts etc Main features Main features An emerging global network Decentralised but cooperative (federated) Over 440 legal databases from 55 countries, 100 jurns Declaration of free access to law states principles Two organising hubs as yet: WorldLII (AustLII, Sydney) & Droit Francophone (LexUM, Montreal) WorldLII Droit Francophone Shared software and expertise provided for development Growth in developing countries

3. What policies best support global free access? Four models advocated by academic theorists: Jon Bing (NRCCL, Oslo) - a statist model for national legal information systems (LIS) Tom Bruce (LII, Cornell) - a model of distributed source- publication of law Daniel Poulin (LexUM, Montreal) - added emphasis on decentralisation and open source tools My own (AustLIIs) synthetic model is based on: Criticism of some aspects of the approach of Bing & Bruce Stress: precondition of full free access + competition Independent LIIs complementing source publication Decentralisation; open source / free for free access tools

4. Jon Bings statist model Bing (2003): strategy for an integrated national LIS, particularly for developing countries. 7 main elements: Bing (2003): strategy for an integrated national LIS, particularly for developing countries. 7 main elements: To cater for both online and offline technologies To cater for both online and offline technologies To provide all forms of publicationTo provide all forms of publication To serve both government and lawyers To serve both government and lawyers Central editorial unit to convert and normalise data, including consolidating legislation Central editorial unit to convert and normalise data, including consolidating legislation Free public access only to a version of legislation Free public access only to a version of legislation The professional paid version will have more value-addingThe professional paid version will have more value-adding Other legal documents (eg cases) not necessarily freeOther legal documents (eg cases) not necessarily free No right of others to republish LIS data (limited exceptions) No right of others to republish LIS data (limited exceptions) Managed by an independent foundation Managed by an independent foundation Self funding (to some extent??) via user fees Self funding (to some extent??) via user fees This model has worked in Norway: Løvdata This model has worked in Norway: Løvdata

5. Critique of Bings model No obligation on legal sources (Courts, Parlt. etc) to provide data for republication by others (except LIS) No obligation on legal sources (Courts, Parlt. etc) to provide data for republication by others (except LIS) Nor to even publish it themselves Nor to even publish it themselves Editing role means key data in electronic form (eg consolidated Acts) might only be held by the LIS Editing role means key data in electronic form (eg consolidated Acts) might only be held by the LIS Dual for free / for fee role means LIS has a vested interest in minimising free access and maximising commercial sales Dual for free / for fee role means LIS has a vested interest in minimising free access and maximising commercial sales Public access will = 2nd rate access Public access will = 2nd rate access Problem of different needs of diverse users cannot be anticipated or solved by one publisher Problem of different needs of diverse users cannot be anticipated or solved by one publisher No exit strategy: what if fees are insufficient? No exit strategy: what if fees are insufficient? A non-profit monopoly is still a monopoly A non-profit monopoly is still a monopoly

6. Tom Bruces model of distributed source-publication Bruce (2000, 2001) argues this model applies to all countries (in the long run) Bruce (2000, 2001) argues this model applies to all countries (in the long run) The sources of legal data (Courts, legislatures) The sources of legal data (Courts, legislatures) Should publish it themselvesShould publish it themselves Are better placed to do so than anyone elseAre better placed to do so than anyone else The sources should use common standards for preparing and sharing legal data => network The sources should use common standards for preparing and sharing legal data => network [Who provides central search points is not specified][Who provides central search points is not specified] (Free) publication by anyone else is inefficient and unsustainable in the long run (Free) publication by anyone else is inefficient and unsustainable in the long run Centralised 3rd party publishing (eg LIIs) have short-term advantages (and value)Centralised 3rd party publishing (eg LIIs) have short-term advantages (and value) They should be succeeded by distributed source publishingThey should be succeeded by distributed source publishing

7. Critique of Bruces model Sources are not competent to judge the needs of all audiences - their version is just a foundation Sources are not competent to judge the needs of all audiences - their version is just a foundation If sources adhere to standards (even partly) this also reduces cost of 3rd P republication If sources adhere to standards (even partly) this also reduces cost of 3rd P republication Republication remains sustainable, and essential Republication remains sustainable, and essential Fails to show free 3rd P publication is doomed, only shows source publication is good Fails to show free 3rd P publication is doomed, only shows source publication is good Continued complementary parallel development likely Continued complementary parallel development likely Does not require sources to provide data to any 3rd P wishing to republish, though anti- monopoly Does not require sources to provide data to any 3rd P wishing to republish, though anti- monopoly Intentional? - US lack of Crown ©, and law school free access to Lexis etc, may blind to importance Intentional? - US lack of Crown ©, and law school free access to Lexis etc, may blind to importance

8. AustLIIs emphasis: full free access + competition AustLII (1995, 1999 etc) advocates 6 obligations of legal data sources necessary for full free access:, Provision in a completed form, including additional information best provided at source (eg consolidation) Provision in an authoritative form, including citations Provision in the form best facilitating dissemination Provision to any 3rd P on a marginal-cost-basis Provision with no re-use restrictions or licence fees Preservation of a copy by the public authority Not a recipe for a LIS - preconditions for the safe operation of any model - our model then builds on this

9. Summary of full free access Legal data sources should have a public duty to provide a copy of their output (judgments and legislation) in the most authoritative, timely and best computerised form that they can produce (which changes from time to time) to anyone who wishes to publish their output, whether for free or for fee. In Australia, 8/9 jurisdictions now in fact comply with these 6 obligations - not rocket science, just good public policy Now look at 3 things that are not full free access ….

10. 1.Official free access is not enough State systems often fail, are sold, or are 3rd rate State systems often fail, are sold, or are 3rd rate Even when they are excellent, they do not do all we want Even when they are excellent, they do not do all we want State providers rarely cooperate in comprehensive resources - though metadata standards are possible State providers rarely cooperate in comprehensive resources - though metadata standards are possible Independent systems give different value-adding Independent systems give different value-adding Full free access requires choice of providers Full free access requires choice of providers competitive republishing is the essence of full free access competitive republishing is the essence of full free access Free speech, not just free beer: anti-monopoly Free speech, not just free beer: anti-monopoly Official websites are the least important priority Official websites are the least important priority Most of 200 Courts/Tribunals whose decisions are on AustLII, BAILII, CanLII and PacLII do not provide official case sites Most of 200 Courts/Tribunals whose decisions are on AustLII, BAILII, CanLII and PacLII do not provide official case sites Courts etc must maintain an archive of legal data so that late entrants to competition are not disadvantaged Courts etc must maintain an archive of legal data so that late entrants to competition are not disadvantaged

11. 2. Abolishing Crown © is not enough It is important It is important Independently published law is de facto in the public domain Independently published law is de facto in the public domain Once released politically difficult to withdraw Once released politically difficult to withdraw Copyright abolition assists capture by spidering Copyright abolition assists capture by spidering It is inadequate It is inadequate Free access providers cant afford to recapture ongoing data Free access providers cant afford to recapture ongoing data Spidering can be and often is defeated (dynamic web pages, or exclusion) Spidering can be and often is defeated (dynamic web pages, or exclusion) It obscures the real issue: the need for a positive duty to provide data for republication - full free access It obscures the real issue: the need for a positive duty to provide data for republication - full free access

12. 3Fully free + Google is not enough If 10,000 free legal websites bloom, is the commons rich? If 10,000 free legal websites bloom, is the commons rich? If tools dont find what you need, isnt this still poverty? If tools dont find what you need, isnt this still poverty? General search engine have limitations for legal research General search engine have limitations for legal research They often dont index all of large law sites (misleading) They often dont index all of large law sites (misleading) Some law sites resist spidering (eg dynamic content) Some law sites resist spidering (eg dynamic content) Difficult to isolate legal content, and to isolate different types of legal materials (eg legislation) Difficult to isolate legal content, and to isolate different types of legal materials (eg legislation) Integration of search engines and public domain catalogs not yet effective (eg ODP/Google Directory) Integration of search engines and public domain catalogs not yet effective (eg ODP/Google Directory)Google DirectoryGoogle Directory Pages found will still be very variable in features and reliability Pages found will still be very variable in features and reliability Some legal sites (eg cases) may not be suitable for general spidering Some legal sites (eg cases) may not be suitable for general spidering Commons need organisation to be effective and valuable Commons need organisation to be effective and valuable Some iCommons catalogs / search engines demonstrate this Some iCommons catalogs / search engines demonstrate this LIIs, through aggregation, integration, and reliability help organise the legal commons LIIs, through aggregation, integration, and reliability help organise the legal commons

13. Daniel Poulins emphases: decentralisation & open source Open source software for global LII reach Open source software for global LII reach Developing country LIIs cannot afford otherwise Developing country LIIs cannot afford otherwise Software developed on open source platforms are open to all, but can be improved by all Software developed on open source platforms are open to all, but can be improved by all Differs from AustLIIs free for free access licence to LIIs - a strategic restriction - but right in the long run Differs from AustLIIs free for free access licence to LIIs - a strategic restriction - but right in the long run Both are consistent with the creative commonsBoth are consistent with the creative commons Decentralisation of both initiatives + control Decentralisation of both initiatives + control Local understanding necessary to publish local laws Local understanding necessary to publish local laws Maximum decentralisation to local LIIs is necessary Maximum decentralisation to local LIIs is necessary Capacity building in developing countries is a key Capacity building in developing countries is a key

14. AustLIIs competitive model for global free access Based on 6 principles of full free access Based on 6 principles of full free access Facilitating the right of republication the key Facilitating the right of republication the key Source self-publication useful but not essential - an element of competition Source self-publication useful but not essential - an element of competition Independent LIIs a permanent feature Independent LIIs a permanent feature Decentralised: Based on national or regional LIIs Decentralised: Based on national or regional LIIs Networking of LIIs adds value and flexibility Networking of LIIs adds value and flexibility Open source / free for free access tools Open source / free for free access tools

15. Other developments influencing & intersecting AustLIIs approach The Declaration on Free Access to Law adopted 2002 by LIIs The Declaration on Free Access to Law adopted 2002 by LIIsDeclaration on Free Access to Law Declaration on Free Access to Law Embodies the same approach as AustLII & LexUM Embodies the same approach as AustLII & LexUM The EU Directive 2003 on re-use of public sector information The EU Directive 2003 on re-use of public sector information Encourages but does not require a right to republish law, or marginal cost provision; otherwise supports Declaration Encourages but does not require a right to republish law, or marginal cost provision; otherwise supports Declaration New theories of the public domain, particularly the Creative Commons / iCommons movement Free access to law is the Democratic Commons - closely related Declaration supports clear licences to end-users, provided with data Open source software is a vital tool in building free access to law

16. References These Powerpoints with links are at These Powerpoints with links are at WorldLII is at http://www.worldlii.org WorldLII is at http://www.worldlii.orghttp://www.worldlii.org All other LIIs are linked from there All other LIIs are linked from there Droit Francophone is at Droit Francophone is at