1. Legal Information Institutes: Creating law's global commons Unlocking IP Session 3 Graham Greenleaf University of New South Wales Co-Director, AustLII & WorldLII Co-Director, AustLII & WorldLII

2. The Internet and the Law: A Global Conversation 2 Free access to law  Many thousands of websites from every country provide law for free access  A small sub-set of providers form a self- conscious ‘free access to law movement’  Significance for issues of ‘Unlocking IP’ ‘Democratic commons’ require free access to law ‘Democratic commons’ require free access to law It requires the right to republish(free speech) not just official free access (free beer) It requires the right to republish(free speech) not just official free access (free beer) Collaboration is providing a global alternative to commercial legal publishers Collaboration is providing a global alternative to commercial legal publishers Multiple models of sustainability are emerging Multiple models of sustainability are emerging

3. The Internet and the Law: A Global Conversation 3 Free access to law movement  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 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

4. The Internet and the Law: A Global Conversation 4 WorldLII research model 

5. The Internet and the Law: A Global Conversation 5 AustLII’s 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

6. The Internet and the Law: A Global Conversation 6 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’ ….

7. The Internet and the Law: A Global Conversation 7 1.Official free access is not enough  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  Independent systems give different value-adding  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 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

8. The Internet and the Law: A Global Conversation 8 2. Abolishing Crown © is not enough  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 Free access providers can’t afford to recapture ongoing data Free access providers can’t 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

9. The Internet and the Law: A Global Conversation 9 3Fully free + Google is not enough  If 10,000 free legal websites bloom, is the commons rich? If tools don’t find what you need, isn’t this still poverty? If tools don’t find what you need, isn’t this still poverty?  General search engine have limitations for legal research They often don’t index all of large law sites (misleading) They often don’t 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 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

10. The Internet and the Law: A Global Conversation 10 Shared tools for global LII reach  LexUM/ CanLII now using open source software 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 AustLII’s approach to its software ‘free for free access’ licence to LIIs only ‘free for free access’ licence to LIIs only a strategic restriction - software as a free access asset - ‘common property’ a strategic restriction - software as a free access asset - ‘common property’  Both are consistent with commons theory

11. The Internet and the Law: A Global Conversation 11 AustLII’s competitive model for global 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  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

12. The Internet and the Law: A Global Conversation 12 End users and licences  End user have free access, but what re-use rights?  Crown © still exists - Best answer is to abolish it  Alternative - NSW licensed (via gazettal) judicial decisions and legislation to the public in 1995/6 Any publisher authorised to republish Any publisher authorised to republish State reserves right to revoke licence State reserves right to revoke licence Must not purport to be ‘official’Must not purport to be ‘official’ Must be accurate, ‘in proper context’ and of ‘appropriate standard’Must be accurate, ‘in proper context’ and of ‘appropriate standard’  A ‘Government public document’ standard licence is needed, to extend to similar classes of docs. Preferable if consistent across jurisdictions  AustLII is going to add licence info to all documents it publishes - once we can define them

13. The Internet and the Law: A Global Conversation 13 Expanding public access to law: academic research  How can © owners be encouraged to create some public rights in legal scholarship? Issues similar to sciences (eg Web of Science) Issues similar to sciences (eg Web of Science)  Legal Scholarship Network (LSN) in SSRN ‘vanity press’ inducements to legal academics ‘vanity press’ inducements to legal academics Effective feedback mechanisms Effective feedback mechanisms Over 17.000 articles to date Over 17.000 articles to date Now part of WorldLII as well Now part of WorldLII as well  AustLII’s law journals collection 15 journals in full text, often a year in arrears 15 journals in full text, often a year in arrears Already largest Australian online collection Already largest Australian online collection

14. The Internet and the Law: A Global Conversation 14 Related developments  The Declaration on Free Access to Law adopted 2002 by LIIs Declaration 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 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 / creative commons 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