SCL RESPONSE TO CROWN COPYRIGHT IN THE INFORMATION AGE: ACONSULTATION DOCUMENT ON ACCESS TO PUBLIC SECTOR INFORMATION
1. The Society for Computers and Law
1.1 The SCL has about 2,700 members drawn from the following groups: thejudiciary, barristers, solicitors, legal executives, teachers of law, law firmadministrators, suppliers, publishers, consultants, public administrators, lawreporters and students. Its President, who takes a full part in the work of theSociety, is the Rt. Hon. Lord Justice Brooke. It is successful, highly activeand growing.
1.2 It is a company limited by guarantee and a registered charity.
1.3 Its objects are twofold and can be summarised as:
1.3.1 to advance the application of technology to the dissemination, study and practice of the law, and
1.3.2 to study and develop the law engendered by technology.
2. This Response
2.1 This response is limited to the question of copyright in Statutes,Statutory Instruments, opinions of the Judicial Committee of the House of Lordsand judgments given in proceedings in the United Kingdom.
2.2 Accordingly the sole focus of this paper is the way in which CrownCopyright affects access to the primary sources of the law.
2.3 This response is developed from the SCL’s response to the previous, andrelated, Green Paper, ‘Government.direct’ and we continue to hold the sameview as laid out in that response. Because of what has been achieved inAustralia by the Australasian Legal Information Institute (‘AustLII’), theSCL calls the proposed model the ‘AustLII Paradigm’. It involves a single,and freely-accessible, database of cases and statutes (and SIs) fully andautomatically cross- and inter-hyperlinked and fully free-text searchable.
2.4 We welcome positively the Government’s desire to encourage aninformation revolution, and to consider the utility of Crown Copyright in thatcontext.
2.5 Our response can be summarised thus. Primary sources of the law arenot, and should not be treated in the same way as ‘government information’.The SCL is not, in general, part of the Freedom of Information lobby, howeverlaudable that debate. The SCL profoundly approves of the general approach toliberalisation expressed in the White and Green papers, but has no desire totake part in the general debate. Law is sui generis. Accordingly its fundamentalstance on the key questions posed is:
as regards law, its primary sources should be treated entirelydifferently, and it should be freely available with no commercial/privatedistinction.
2.6 We have been given to understand that general statements in howeverringing terms are less likely to carry weight than concrete proposals. Whetherthat is right or not, this statement must be made, if only once. The State has aduty to make available to the citizen the law of the land, of which he is deemedcognisant, in a manner which is free and intelligible. That provision should be,so far as practicable, direct to the citizen. In addition, the citizen has theright to have his legal problems resolved at reasonable cost. Part of thatinvolves the basic sources of the law being freely and intelligibly available tothose who may advise him (CABx, Law Centres, solicitors and WSs, barristers andadvocates). Such provision affords not only the proverbial ‘level playingfield’ as between citizen and State, but also makes for a more just and humanesociety.
2.7 The SCL is unable to resist offering the observation that the achievementin the UK of the AustLII Paradigm would be enormously popular. The citizen wouldbe entitled, genuinely, to take the view that there was under way a revolutionin attitudes aimed directly at an improvement in his life. The prospect oflawyers’ fees falling is unlikely to meet with much public resistance.
3. The Technological Assumptions
3.1 We assume that all potential users of the law have (or will very soonhave) access to computers. The judiciary are increasingly becoming computerliterate, lawyers (and other professionals) use computers on a daily basis,academics and students have easy access to a wide variety of communicationsystems, legal publishing is now carried out in a digital environment, publiclibraries allow Internet access, CABx and Law Centres can now afford access tothe Internet, as can the majority of citizens, and courts are producing more andmore information in digital format. There will be a Court Service Intranetshortly. The cost of information systems is no longer a significant barrier touse, and will not be a barrier in the near future.
3.2 The thrust of the reforms proposed by Lord Woolf, which are to beimplemented shortly and which will shape the legal system for a generation, isthe efficient and speedy resolution of disputes at much lower cost. To that endthere will be widespread use of computers and networks for case management, bothadministrative and judicial. Accordingly, the Courts will have access to bodiesof legal data, the same as everyone else (hitherto the Courts have not been atthe forefront of access to technology).
4. What do Users Want from The Law?
4.1 There is a growing body of research into the nature of law, in terms ofits being a body of data. This has developed a new way of looking at userrequirements which differs from that of the 1960s to the 1980s. In that earlyperiod, the prime aim was seen to be to have access to the corpus of primarylegal information (legislation and case law) through a ‘research oriented’methodology. This resulted in powerful Boolean searching systems such as LEXISand Westlaw, where the user was seen to be searching for information. Most usersof legal information find these systems unfriendly, and difficult to use.
4.2 Newer perspectives emphasise that most use of legal information is notcarried out in that ‘traditional’ research framework. Rather, it suggeststhat users are looking for coherent legal sources which minimise searching forinformation and possible overlooking of information. Such coherence has, todate, been more usually gained from text-based resources than computer-basedresources.
4.3 It is also clear that different categories of user require differentforms of legal information. It is not suggested that the Paradigm is itself theperfect legal tool, suitable for immediate and unaided use by all. Far from it,and such a tool might be inapt for provision by government. However, it couldand should contain the primary source materials, statutes and cases, made asintelligible as possible without their being an expectation of state-fundedaddition of human editorial commentary.
4.4 The Statute Law Database. Having both a standard Mark-up Language, with a‘time snapshot’ function, its release into the public domain is essential asone of the steps towards free and intelligible access to statute law.
4.5 We understand that it is not yet complete, and that it has cost a lot ofmoney, and that there may be some debate as to whether the SLD without its‘snap-shot’ capacity should be made freely available, with there being somecharging mechanism for use of the snap-shot function.
4.6 The desire to recoup costs is understandable, but we feel this is atemptation which should be resisted. Intelligibility is an essential part of theprovision. However, we do not know what cost or technological complexity isinvolved in the ongoing provision of the time snap-shot. If the system waswell-designed, that snap-shot should be automatic i.e it should have nosignificant continuing cost (additional to keeping the SLD up to date, whichwould be necessary in any event).
4.7 It is worth noting that we believe that, regardless of the Paradigm, thecurrent version of the SLD needs to be extensively upgraded to include internalhyperlink-style cross-referencing to other sections of the current statute, andto other statutes, if it is to be sufficiently user-friendly for any user base.It will also need to be modified to permit the virtual integration of those datawith case law. This is entirely feasible, but currently the set-up does not, weunderstand, allow any form of externally-generated indexing or marking.
5. The Green Paper
5.1 General Comments on the Scope of the Green Paper:
5.1.1 The Green Paper highlights that, currently, the Government and its agencies are already engaged in the electronic publication of primary source legal materials. As also discussed, there are materials which although regarded as ‘public property’ (as judgments have now come to be regarded, a welcome advance) are not affected in their dissemination only by questions of Crown Copyright – where the materials are printed and published externally there arises, subject to any requirement of re-assignment, other copyrights and in particular typographical.
5.1.2 Further, there is a clear distinction between judgments prepared by the judiciary and those edited and published by law reporters. ‘Handed down’ judgments are fit for immediate use, whereas oral judgments require transcription in one form or another. Thereafter, in the case of the official Law Reports, they are edited by the Law Reporters, without reference to the judges, and the end product supersedes even the ‘official’ transcript. This is an anomaly not signalled in the Green Paper. We expect a continuing increase in judgments prepared on word processors, and fewer to be given orally. This will not necessarily mean a reduction in the need for Law Reporters, who will continue to have copyright in their output (both as a database collection, and through individual copyrights) but it will increase the utility and range of materials where no such complication arises. Most judgments that matter that are currently being given are ‘handed down’. We see that the Green Paper does not seek to resolve any debate as to the question ‘is it Crown or judges’ copyright?’
5.1.3 It is particularly important to note that whilst materials protected by Crown Copyright may retrospectively have protection removed, this will not similarly happen with reported cases. This will mean that much vital legal information will remain under the control of commercial bodies, and will only be accessible through licensing agreements. The lengthy period of copyright protection ensures a virtual monopoly on this material. That is something which needs to be addressed also in respect of future materials, however – to the extent that judgments are only available in text form in the hands of publishers, a mere abrogation of copyright would not, simpliciter, afford access to that text.
5.1.4 One essential element of the ‘Information Age’ will be the requirement for interchange and inter-operability of information systems – put simply, that users can integrate the information from one or more sources, whether commercial or public domain. If Crown Copyright has any useful role, it may be in ensuring this interchange of information. The Green Paper does not look towards any real role for the Government as an encourager of open standards in the information market.
5.2 General Comments on Crown Copyright & Primary materials:
5.2.1 It is clear that the introduction of Crown Copyright was not due to problems with these primary legal source materials. Rather it was to enable charging for material which was produced in a commercial context (i.e. Ordnance Survey maps). As the HMSO income figures appended to the Green Paper show, primary legal materials are not of great commercial concern.
5.2.2 It does not seem likely that republishers of primary legal source materials would either deliberately or negligently disseminate inaccurate copies. A lack of integrity, authority and accuracy in the materials would considerably affect the publisher’s reputation.
5.2.3 Integrity, authority and accuracy of primary legal source materials requires only the existence of one authoritative copy against which other copies can be matched. That authoritative copy can be the Statute Law Database, and, in respect of cases, the source text. Indeed, it is to be hoped that the Paradigm database would itself acquire the reputation for such accuracy. Crown Copyright is not necessary to ‘ensure recognition of the official status’ – that official status is an intimate part of the nature of the authoritative copy.
5.2.4 It is clear that income from primary legal source materials has been minimal, even before the current liberalisation (e.g. as set out in the Dear Publisher letter). It has also been clear for a number of years (for example, The Preparation of Legislation 1) that the costs of preparing legislation for public access is minimal: the cost lies in the Parliamentary and drafting processes which have to be undertaken anyway.
5.2.5 The increasing existence of freely available primary legal source materials on the Internet strongly suggests that there is no moral force to charging for this access, and that Crown Copyright is therefore not required to enforce such charging systems. In respect of judgments, the Green Paper acknowledges the ‘public property’ position.
5.2.6 The SCL takes the view that, unless there is real will on the part of government to use its claims to Crown (and where relevant Parliamentary) Copyright positively to ensure wide and free access to the law, Crown etc Copyright for primary legal sources has no utility and should be abrogated or waived subject only to a residual power to prevent textual abuse as in New South Wales. No such will is yet manifest, and in those circumstances primary legal source materials should, by statute, be placed in the public domain, although the Crown should maintain an authoritative version against which derivative copies can be checked for accuracy. The continued existence of restrictive Crown Copyright can only act as a disincentive to the creative development of systems for the Information Age, and to wide public access to a coherent statement of law. The SCL associates itself with, and adopts, the stance of principle taken by the General Council of the Bar of England and Wales, and others, namely that there should be an overall and immediate abrogation of claims, valid or otherwise, to Crown Copyright and, where relevant, Parliamentary copyright, in primary legal source materials, subject only to any residual power as set out above.
5.2.7 However, if it were the case that the government would bind itself positively to a policy of making law accessible, rather than just being permissive, there is an argument for the retention of claims to Crown copyright in cases, for the sole purpose of enforcing free access. In any case where there arose a typographical or other copyright . . . the suggestion is that the Crown license the use of such material on the terms that the publisher was obliged to make the a digital version of the text of the judgment itself available for use or publication by any other body without fee. The publisher would be entitled to maintain its claim to separate copyright in extraneous material, such as headnotes, digests of argument, summaries of the facts and references to citations, but the text of the judgment itself would be as available to public use as that of a handed-down judgment. Moreover, such power could be used to prevent the transcribers in the Court of Appeal/Crown Office acquiring any de facto monopoly in the text of transcribed materials (although this could as well be achieved by contract). The current transcribers were required to acknowledge Crown Copyright in their product and the extent to which they are permitted commercially to exploit the transcripts is purely a function of contract.
5.2.8 This depends in part on real policy. If the government has a restrictive instinct (or Treasury-driven desire to charge) then abrogation/waiver is the best one can hope for. If it manifests a positive commitment to the Paradigm, then the change could be to a system whereby Crown Copyright in primary materials cannot be exercised save for purposes designed to ensure that accurate materials are made freely available to all-comers regardless of the intervening chain of how the words are resolved into writing, digital or otherwise.
5.3 General Comments on Crown Copyright & Non-Primary materials:
5.3.1 While the aim of the SCL is that there should be made available to all citizens the whole body of United Kingdom law, be it statutory, quasi-statutory or case law, free of charge at the point of use, this is not necessarily the aim with non-primary materials. For example, access to court records, documents and transcripts differs from that of primary materials, since much of this is prepared at extra cost and may require expenditure to make it easily available to all users.
5.3.2 This non-primary material, however, is presently publicly available for those who are prepared to access the records physically. It is also the case that allowing access to this kind of information can improve efficiency in the court system itself (through, for example, removing the need for staff to respond to customer queries).
5.3.3 The SCL believes that a fuller investigation should be undertaken into potential user interest in these materials and costs involved in handling these materials. The general assumption should be that – unless there are specific and important arguments for retention – Crown Copyright should also be terminated for such materials.
5.3.4 Even if some charging system is used to allow access to these records it is not immediately apparent that Crown Copyright is a required element of this means of access.
6. Consolidation of the Statute Book
6.1 Any developments of legal information access for the Information Age mustfocus upon the problems inherent in a common law system of lawmaking. One majorproblem is that of the infrequent consolidation of the Statute Book. Another isthe difficulty of relating case law to the Statute Book – and case law is thedictionary which gives meaning to legislation.
6.2 For example, it is presently difficult to assess which parts of law arecurrently in force and which are not, since it is not possible in aprint-environment to discover the precise implementation of Acts, SIs etc. Thisis, in effect, a problem of consolidating the Statute Book.
6.3 Also, Law Reporting has, in the view of the SCL, supported by BarAssociations and the IT Committee of the Bar Council, become unacceptablyfragmented due to the diverse publication of case reports.
6.4 Technology as currently applied is making matters, if anything, worsewith regard to an overall approach to legal information. It has encouraged thebuilding of large, diverse corpora of information without the proper tools forstructuring, linking and accessing this information.
6.5 The SCL believes that the computer does offer a way forward in improvingthe incremental consolidation of the Statute Book, and relating these materialsto case law. This discussion on Crown Copyright and user need should encouragefuller investigation of how best to achieve this, through a better understandingof how technology can be applied. The wide acceptance of the hyperlinked WWW isan indication of one technological path.
6.6 The SCL also believes that it is necessary to build a legal informationsystem which encompasses all past legislation, and substantial parts of caselaw. Our response to Government.direct listed those elements we consider mostimportant. These materials should provide the basis of a coherent, consolidateddatabase of the law. This is what AustLII is in the process of doing.
7. Encouraging The Legal Information Market
7.1 The legal information market is important, yet unlikely to produce largeprofits to any publisher. With the existence of freely available statutorymaterial on the Internet, it is further unlikely that legal publishing of rawmaterials will be profitable to the publisher.
7.2 Provision of all of the law on a freely available basis will notdisplace, or remove, the activities of commercial and other traditional lawreporting organisations and publishers. SCL believes that legal publishing willdevelop by the development of imaginative products and access methods – ‘valueadded services’. A demand for editing, digesting, headnoting, analysis anddiscussion will plainly remain in existence, and indeed may grow in size.Further, new software techniques for the presentation of legal information willbe developed.
7.3 The SCL is keen to encourage this marketplace, since it can only benefitthe understanding and application of law.
7.4 However, the marketplace should not allow a monopoly situation to developwith regard to reported cases, as appears to be the situation at present.
7.5 In order to develop this marketplace, a policy of inter-operability mustbe encouraged. In practice this must mean a Standardised Citation System,ideally a Universal system effective between different jurisdictions. Such asystem will allocate to each piece of legislation and case law a meaningful andunique code. Further, it should allow citations to refer to individual elementsof these texts, without resorting to page numbers (since in a digitalenvironment pagination is at best irrelevant).
7.6 The development of a Standardised Citation System will remove theconstraints of propriety copyright systems which have, in the past, hinderedinterlinking of legal information systems.
7.7 The need for this has already been highlighted with existing publicdomain materials. The House of Lords cases published on the Internet are, forthe first few weeks, effectively only available on the Internet. If they are tobe cited in Court, they need some description other than the name (e.g. HoL15/1998 for opinion 15 of 1998). They also need paragraph numbering since HTMLdoes not give rise to a uniform printed version – no page numbers. Other cases,published on the Court Service site, may never be reported in print: for themost part they now have paragraph numbers, but they still lack a system of casecitation.
7.8 This has been addressed in many other jurisdictions. Usually, there isvendor- and medium-neutral citation based on Court, year and sequence number,which may be quoted (with or without the addition of any more familiarvendor-specific citation). This is a new concept here in the UK, but it isimportant partly because of gratis Internet publication and partly to preventpublishers acquiring control by collateral means, as they did in the USA. AsInternet publication grows, the need for a such a citation mechanism will becomevery great.
8. A Role for the SCL
8.1 The SCL is a charitable company which is keenly interested in thedevelopments of a coherent means of accessing law for all users of the legalsystem.
8.2 The SCL believes that such a coherent system is a real and realistic goalwhich can be achieved through the proper analysis of user need and the properapplication of technology. It need not be an ‘unnecessary expense’ toGovernment, because Government, too, requires a coherent StatuteBook/appreciation of the law. The goals of the user and the Government arecommon, and should be seen to be common.
8.3 The SCL has a considerable level of expertise in these matters, and webelieve that we can facilitate, if not provide, the basis for the achievement ofthe Paradigm here.
8.4 If amplification (or narrowing) of any point would assist in theconsultation process, please contact Ruth Baker, General Manager.
Endnote
1. The Renton Report, Cmnd. 6053, HMSO, 1975.
