10th International “Law via the Internet” Conference, Durban, South Africa, 26 – 27 November 2009 – Day 2

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Day two at the The 10th International “Law via the Internet” Conference, started with a Keynote Address by Graham Greenleaf, Co-Director of the Australasian Legal Information Institute (AustLII).

Greenleaf outlined eight strategies that can support the aims of the Free Access to Law Movement which include maximizing free access, assisting local organisations and an implied goal of high quality. Among the eight strategies he mentioned were encouragement of all Legal Information Institutes (also small ones), the essential right of republication of governmental works (especially in maintaining workflows), broadening of LII content, publishing legal scholarship and the importance of subject-specific libraries.

Greenleaf emphasised also the importance for LIIs to maximise collaborations with both government and commercial publishers. Maximising LII globalism is also an important strategy as user demands on global research grow. He noted that Google Lawyer will never be free, but only ‘free-ish’, as it ultimately will follow the money.

In concluding Greenleaf stressed the importance of expanding the Free Access to Law Movement (FALM) network even more, after 7 years already 32 members have joined the movement.

Friday, 27 November, morning sessions

Then the first session on Policy and Legal Considerations and Free Access was chaired by Graham Greenleaf.

Andrew Rens spoke about Copyright and Free Access to Law and especially about pwning law (owning law). Rens started by explaining three different justificatory theories on copyright, namely the labour theory by Locke, the personality theory by Hegel and the utilitarian theory by Posner.

After applying Locke’s theory on the question of copyright for law, Rens talked about Hegel and his integrity and profit argument. Then he moved on to Posner’s utilitarian theory, which still prevails in Anglo-American tradition.

Posner divides between two set of costs; namely the (fixed) costs of creating a work and the costs for distributing it (varying how many copies are distributed). When it comes to pricing a work, one wants to recover both types of costs, the fixed costs of creating and the varying costs of distribution. For the person copying, however, only the costs for distribution are of interest, so the author might not want to publish her work if the costs of creating will not be recovered.

When applying Posner’s utilitarian theory to copyright in law, the following is of interest:

  • there are other incentives for “supply” of law, i.e. the government does not need incentives for creating law
  • cost of expression in law is the democratic process
  • there are no substitutes for laws
  • there is no competitive market for laws, as they stem from a public process

So according to Andrew Rens there is no copyright justification for copyright of law, especially as there is a cost recovery and the fear of distortion might not be justified (the assumption that people would copy and change law if they could lacks argumentation). Also the unspecified need for control is not very convincing.

Rens also mentioned the principle nulle legum sine crimen, no law without a crime.

Answering a question from the audience, Andrew Rens said that even judgements should not be copyright-protected as they are a result of a collective public process, not a private creation.

Mark Heyink spoke about Privacy and Security Considerations in Access to Case-Law. In his opinion lawyers are knowledge workers, and therefore depend on accuracy of information that underpins this knowledge.

Professor David Taylor, University of South Africa (UNISA) spoke about Privacy, Freedom of Expression and the online publication of court cases. He used the example of a South African case by the South African Constitutional Court, deciding on the constitutionality of Section 12 in a law forbidding the publication of details of divorce cases. (Case Johncom Media Investments Limited v M and Others (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC) (17 March 2009) available at SAFLII

The main question was on the balance between privacy and freedom of expression. Taylor emphasised, that one should be aware of the risks when publishing increasingly more legal information on the Internet.

David Taylor also warned that an improved access to judgements might lead to judges facing more and more different arguments from different cases, and therefore the value of case law will decrease and common law countries will move towards a civil law tradition.

Daniela TiscorniaITTIG-CNR, spoke about Free Access to Legal Information Services through the Commercial Exploitation of Public Sector Information (PSI): A New Challenge for African Countries from the European Experience.

She focused on the EU Directive on 2003/98 on re-use of public sector information (PSI Directive)

Public sector information (PSI) comprises different types of information, not only legislation, but also data from public registers, maps, geographical information, etc. The MEPSIR Sudy from 2006 investigated the implementation of the PSI Directive in the EU member states.

Besides economic and technical barriers, e.g. the lack of simple standard licenses, there are also legal barriers for the effective implementation of the PSI Directive:

  • exclusive deals for the re-use of information
  • problem of intellectual property rights
  • public bodies’ reluctance to allow private operators to re-use PSI as this might jeopardise their revenue created by their own data

The framework conditions include availability, accessibility, transparency, accountability and non-discrimination.

There are two economic models of PSI policies:

  • open access (such as in US): PSI is sold at no more than the cost of search and duplication. Due to higher sales of PSI based products the indirect tax revenues increase, thereby increasing the revenue in total for the government.
  • cost recovery (government commercialisation), which is more typical European: the goal is to also recover the costs of producing PSI without opening data to private operators

The MEPSIR study highlighted that legal information (together with geographical data) has the highest economic value.

Daniela Tiscornia emphasised that higher indirect tax revenues from sales of PSI based products by professional stakeholders will allow public bodies to recover costs for producing and distributing basic legal content to citizens.

Daniel PoulinLexUM Project Director, spoke about Online legal information and the requirements for official status of legal documents, his presentation being titled Accessibility and trustworthiness.

He pinpointed the needs of

  • accessibility (cost effectiveness)
  • legal security (completeness of information)

– trustworthy sources of law
– validated or easy to validate documents

It is important to provide ways for users to validate what they can find in the system.

The needs of accessibility and legal security lead to the following requirements:

  • public ownership of the law (importance of final and correct version of decisions in the public domain. the version released by court must be official version)
  • non-proprietary ways to cite decisions (neutral citation)
  • policies and resources for long term preservation
  • free public sources of legal information committed to quality

Traditional law reporting is typically:

  • carefully prepared with index, abstract and more
  • very selective (which limits the size of case-law over years, which can be good, but means less material to look at when doing research)
  • trustworthy and respected
  • when official could even define what could be cited

Daniel Poulin asked the question if traditional reporting is essential today and if we could we do without it.

In Canada unreported decisions are widely available, citable and generally deemed trustworthy.

Some authors, as Catherine Best (Law via the Internet Conference 2007), identify a proliferation problem. There are too many cases, which is burden for courts, lawyers, etc. With an abundance of case-law lawyers are just overwhelmed by it which might change the nature of case law. However, users seem to be more concerned by “comprehensiveness”.

Daniel Poulin then pinpointed what is needed in free access to law:

  1. public ownership (goal 1)
  2. legal security (goal 2)
  3. accessiblity (goal 3)

Concerning goal 1 he suggested

  • to work with courts to provide and prepare final and correct version of decisions
  • establishing a public standard to cite all decisions – neutral citation (a project that started in 1997, where the Canadian Judicial Council (CJC (http://www.cjc-ccm.gc.ca/) recommended adopting rules requiring the use of neutral citation, aiming at locking the system under the public nature of case, instead of official reports which would create a market for someone to exploit
  • ensuring preservation

Goal 2, legal security can be ensured by:

  • high publishing standards (accuracy of metadata, integrity of files, comprehensiveness of databases) and precision of the finding aids
  • continuity of service and sustainability
  • validation (pdf of source image can help)

For free access to law operators it is important to

  • establish a reputation for quality (define your own quality goals and check them)
  • establish the right processes (mobilize data providers, check against other sources where possible, add what is missing)
  • create quality markers (“gold databases”)
  • match law report quality even if we are not adding any other value

Friday, 27 November, afternoon sessions

Olivier CharbonneauConcordia University, spoke about How can Web 2.0 technologies help us understand the law?His notes and paper will be available at http://spectrum.library.concordia.ca/

In the last session in the afternoon, Amavi Tagodoe suggested What about an AfriLII? The need for an African global strategy of Legal Information diffusion using Internet and IT? He showed examples of legal information web sites in Africa and proposed that the existing African national LIIs could be connected into an AfriLII with a decentralised approach, e.g. portal, sharing best practices, etc. Tagodoe also suggested a logo for AfriLII.

Tererai MafukidzeSouthern African Legal Information Institute (SAFLII) ended the session speaking about Strategies for Establishing National LIIs in Africa. He started by saying that what you need is an idea, people and some money to start.

Friday, 27 November, closing address

The closing address was excellently done by Justice Kate O’Regan. She spoke of the time when she was a judge at the South African Constitutional Court. Then, it was a must for the judges to look at international law. At the same time it was difficult to find jurisprudence from the own continent. When the Court started to look into means of making decisions available and moving into an IT environment, there were strong discussions on adding paragraph numbers to judgements, as this would facilitate searching in the judgement later as well. A manual was introduced to ensure uniformity of style between judgements.

Justice Kate O’Regan posed the question why access to law matters? The answer was that one cannot have rules of law without access to law.

She agreed to previous speakers that there might be a risk of overload, but she compared it to the risk of flood-gates, meaning that the risk is far more quoted than apparent. The system of precedent has been and still is very efficient, distillering out what is truly authoritative and persuasive.

O’Regan said that the interest in comparative law is high, though judges are not bound by this case-law. Often the reasoning cannot be applied directly to national cases as the legal system is different, but she often found guidance for interpretation in case law from abroad.

Justice O’Regan also posed the question why access to law should be free. Her answers were

  • the allocation of resources is a matter of power
  • free access enriches the understanding of democracy, as it facilitates and empowers public participation to ensure that
  • free access to law is one of building stones for civic participation in a broader democratic society

As challenges for the future O’Regan saw

  • question of sustainability (funding through partnerships with legal profession, commercial publishers, as well as governmental institutions)
  • protection of the integrity of information – quality of reporting (also comprehensiveness)
  • issue of privacy (most information in case law is private, which becomes, however, much more public if you can google somebody’s last name. Therefore appropriate in-house rules are important)

Answering questions from the audience Justice Kate O’Regan said that democracy presupposed informed citizens, so literacy is very important.

Thanks everybody at Southern African Legal Information Institute (SAFLII) for a great conference!

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