Government Information in Canada/Information gouvernementale au
Canada, Number/Numéro 16 (March 1999)
Contents On August 20, 1998, the Supreme Court of Canada issued its
decision on the reference about the constitutional and international law
requirements regarding the possible secession of Quebec from Canada. In
the hours the followed, 22,000 persons had consulted or downloaded the
judgment on the Internet site where it was published (at the
Université de Montréal by the LexUM team; the
Université is the host location for all of the Supreme Court's
decisions). Without electronic access to the law, only a few hundred
lawyers would have been able to consult the text. Certainly, the tens of
thousands of Canadians who consulted the decision would not have paid the
approximately $190 per hour that private electronic law publishers
charge. (3) Contrast this with the delivery of the Supreme Court's decision in the reference concerning whether the federal government could unilaterally patriate Canada's constitution from England in 1981. (Until the enactment of the Constitution Act, 1982, any amendments to Canada's constitution had to be passed by the British Parliament, not Canada's.) I recall, as a law student at the time, that the delivery of the reasons was, as a very exceptional, one-time event, delivered live on national television. Our professors hooked up the television, most law students attended, and were treated to commentary from our law professors as the judgment proceeded. As I recall, there were some technical glitches and even a perfect broadcast cannot mask the fact that a court's delivery of a set of complex written reasons is not high drama, and the event was a poor substitute for actually reading the judgment. Could there be a more dramatic example of why free electronic access to the law is important? The purpose of this paper is to argue that one of the most important freedom of information issues that exists is access to the laws. Generally, freedom of information laws, requests and court decisions are not concerned with access to the law, they are more concerned with access to memos, research studies, and the like that are prepared within a government institution. This paper suggests that governments can and should do more to publish laws electronically, and this should be at the forefront of the agenda to improve access to government information generally. (4) Arguably, the most important information that needs to be free is information about the laws themselves. It is important to remember that the laws come from at least six different sources: All of these are "primary" legal materials: they are law in their own right. There is also a need for "secondary" legal materials that make it easier for people to understand the primary materials, and that provide summaries, commentaries and comparisons between jurisdictions of different primary legal materials. The basic premise of this article is that while both primary and secondary legal materials are important, legislatures, governments, and courts, as the bodies responsible for producing the primary legal materials, should view the dissemination of primary legal materials as their first priority. This article will discuss a variety of issues relating to free electronic access to the law. It starts with a survey of what Canadian laws are available for free on the Internet at the time of writing. The article then asks whether there is a legal obligation for governments to publish the laws, and if so, whether this includes a legal obligation to publish using current technologies. The article examines claims of "ownership" to the laws and recent court cases (in Canada, the U.S., and Australia) that deal with requests for access to the electronic formats of statutes and court decisions. These requests have been rebuffed by some governments by applying exemptions under freedom of information laws and by claiming copyright in the laws. Private publishers have also made some copyright claims relating to the laws, and these claims are also examined. The article goes on to examine the best examples in Canada, but also in Australia and in the United States--so far as this author can tell--of electronic access to the laws. I discuss in some detail the Cornell University Legal Information Institute and the Australasian Legal Information Institute. I look at these examples as benchmarks for Canada to follow. In the last sections of the article, I examine cost concerns relating to providing free electronic access to the laws, followed by a plea for readers to dream big--free, electronic access to the law can mean much more than simply providing raw text on the Internet. I summarize and close the article with a ten-point vision for free electronic access to the laws in Canada. As a final introductory note, I emphasize that this article is about improving access to the primary legal materials created in Canada. It was entirely beyond the scope of this paper to examine issues relating to secondary legal information providers through Canada's Public Legal Education and Information organizations, access to the law as represented by Legal Aid funds and by Public Interest Advocacy Centres, and by the importance of drafting laws in plain language and writing clear, accessible judicial decisions. All of these are extremely important tools in providing access to the law. Requirements to Publish the Law A strong argument can be made that the phrase "secret law" is an oxymoron: if it is secret, it is not law. (5) This view reads into the meaning of the word "law" the notion of the "rule of law": laws are intended to guide people and governments in their conduct, in short, to be ruled by law. Laws are rules that are set down by recognized authorities, usually following prescribed procedures. One dictionary gives, as its first definition of the word rule, "a prescribed guide for conduct or action." (6) "Laws" that are secret cannot give this guidance because people must have access to the instruments that are intended to guide them. Without widespread publication, the maxim that "ignorance of the law is no excuse" would be manifestly unjust. (7) In fact, the law does allow ignorance of the law to be an excuse in some circumstances. (8) Aside from general theories about the meaning of "law" and the requirements of the "rule of law," the importance of publishing law is recognized in more concrete ways. The Constitution Act, 1982, expressly states that Canada is founded on the rule of law. Section 133 of the Constitution Act, 1867, s. 23 of the Manitoba Act, 1870, and s. 18 of the Canadian Charter of Rights and Freedoms, 1982, make it a constitutional requirement that statutes and regulations of the federal government, Quebec, Manitoba and New Brunswick governments be published, although the purpose of these section is not so much to require publication, but instead to ensure that publication is in both official languages. Sections 10 and 15 of the Official Languages Act of the Northwest Territories contain a similar provision, and in the Yukon, s. 4 of the Languages Act and the Enactments Publication Act contain similar provisions. The desire to publish in both official languages clearly reflects an intent to ensure that the laws are accessible to all English- and French-speaking Canadians, in their own language. (9) Are there other constitutional obligations to publish the laws? In my view, there are number of provisions in the Canadian Charter of Rights and Freedoms that require publication of the law in some circumstances where the government seeks to limits people's rights and freedoms. Section 1 of the Charter, for example, permits limits to constitutional rights only where those limits are "prescribed by law" and where they would be reasonable and demonstrably justifiable in a "free and democratic society." For example, if a government believes that interfering with freedom of expression is justified in particular circumstances, these limits must be prescribed by law. Section 7 of the Charter protects everyone's life, liberty and security of the person, and any derogations of those rights must be in accordance with the principles of fundamental justice. The Supreme Court of Canada and other Canadian courts have used both s. 7 and s. 1 of the Charter to insist that laws provide adequate guidance to people before such laws that infringe constitutional rights will be considered to be constitutional. In other words, it is not enough to be enacted by proper procedure and published: in addition, the law must not be unduly vague. (10) Another provision in the Charter is s. 8, which provides that everyone has the right to be secure from unreasonable search or seizure. The Supreme Court has said in more than twenty decided cases in relation to s. 8 of the Charter, that for a search to be reasonable, it is must be authorized by a reasonable law. (11) Thus, a reasonable search is not enough, there must also be a law that authorizes the reasonable search. The "prescribed by law" requirement appears to derive from the European Convention on Human Rights. One of the principles established by the European Court in deciding whether a limit is "prescribed by law" is that the limit should be accessible to those affected by it. (12) The Supreme Court of Canada recently interpreted s. 53 of the Constitution Act, 1867 as a requirement that Parliament must be the body that approves the imposition of taxes (in this case, probate fees). "The provision codifies the principle of no taxation without representation, by requiring any bill that imposes a tax to originate with the legislature." (13) Thus, s. 53 is another "prescribed by law" requirement (actually, it is a "prescribed by statute" requirement). Outside of constitutional obligations to publish the law, there are a variety of statutory requirements to publish the federal laws in the Publication of Statutes Act, the Revised Statutes of Canada 1985 Act, the Statute Revision Act and the Statutory Instruments Act. Most jurisdictions have laws requiring the publication of regulations, and some have laws requiring the publication of statutes. On October 1, 1998, the federal government introduced Bill C-54--"Personal Information Protection and Electronic Documents Act". Bill C-54 contains amendments to the Statute Revision Act. The amendments to Parts I and II of the Act would allow for the publication in future of not only revised statutes but also revised regulations, in either print or electronic form. The amended Part III would authorize the Minister of Justice to publish, in either electronic or print form, an official version of the consolidated statutes and regulations of Canada that can be used as evidence. These amendments would be brought into force when the Department of Justice has the production systems and technology in place to ensure the delivery of a reliable and secure product. The bill would also amend the Statutory Instruments Act to provide for the electronic distribution of the Canada Gazette. Canada's international trade agreements include transparency, notification and publication requirements (see, for example, Canada's adhesion to various trade agreements under the World Trade Organization). For example, NAFTA Articles 1802 and 1803 set out general publication and notification requirements. I have highlighted portions and added notes to the provisions that would be especially progressive if they applied to publication of all Canadian laws for the benefit of Canadians generally. Article 1802: Publication 1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and Parties to become acquainted with them. 2. To the extent possible, each Party shall: (a) publish in advance any such measure that it proposes to adopt; and (b) provide interested persons and Parties a reasonable opportunity to comment on such proposed measures. Article 1803: Notification and Provision of Information 1. To the maximum extent possible, each Party shall notify any other Party with an interest in the matter of any proposed or actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect that other Party's interests under this Agreement. [emphasis added] 2. On request of another Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure, whether or not that other Party has been previously notified of that measure. 3. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement. Individual chapters of the NAFTA set out more elaborate provisions. For example, in Chapter Seven, Part B, on Sanitary and Phytosanitary Measures, Article 718 provides: Article 718: Notification, Publication and Provision of Information 1. Further to Articles 1802 (Publication) and 1803 (Notification and Provision of Information), each Party proposing to adopt or modify a sanitary or phytosanitary measure of general application at the federal level shall: (a) at least 60 days prior to the adoption or modification of the measure, other than a law, publish a notice and notify in writing the other Parties of the proposed measure and provide to the other Parties and publish the full text of the proposed measure, in such a manner as to enable interested persons to become acquainted with the proposed measure; (b) identify in the notice and notification the good to which the measure would apply, and provide a brief description of the objective and reasons for the measure; (c) provide a copy of the proposed measure to any Party or interested person that so requests and, wherever possible, identify any provision that deviates in substance from relevant international standards, guidelines or recommendations; and (d) without discrimination, allow other Parties and interested persons to make comments in writing and shall, on request, discuss the comments and take the comments and the results of the discussions into account. 2. Each Party shall seek, through appropriate measures, to ensure, with respect to a sanitary or phytosanitary measure of a state or provincial government: (a) that, at an early appropriate stage, a notice and notification of the type referred to in paragraphs 1(a) and (b) are made prior to their adoption; and (b) observance of paragraphs 1(c) and (d). 3. Where a Party considers it necessary to address an urgent problem relating to sanitary or phytosanitary protection, it may omit any step set out in paragraph 1 or 2, provided that, on adoption of a sanitary or phytosanitary measure, it shall: (a) immediately provide to the other Parties a notification of the type referred to in paragraph 1(b), including a brief description of the urgent problem; (b) provide a copy of the measure to any Party or interested person that so requests; and [Note: imagine if there were a statutory obligation to provide Canadians with a copy of a law upon request.] (c) without discrimination, allow other Parties and interested persons to make comments in writing and shall, on request, discuss the comments and take the comments and the results of the discussions into account. 4. Each Party shall, except where necessary to address an urgent problem referred to in paragraph 3, allow a reasonable period between the publication of a sanitary or phytosanitary measure of general application and the date that it becomes effective to allow time for interested persons to adapt to the measure. [Note: imagine if Parliament were required to ensure that its laws did not come into force until enough time had passed for interested persons to adapt to the measure.] 5. Each Party shall designate a government authority responsible for the implementation at the federal level of the notification provisions of this Article, and shall notify the other Parties thereof. Where a Party designates two or more government authorities for this purpose, it shall provide to the other Parties complete and unambiguous information on the scope of responsibility of each such authority. 6. Where an importing Party denies entry into its territory of a good of another Party because it does not comply with a sanitary or phytosanitary measure, the importing Party shall provide a written explanation to the exporting Party, on request, that identifies the applicable measure and the reasons that the good is not in compliance. Article 719: Inquiry Points 1. Each Party shall ensure that there is one inquiry point that is able to answer all reasonable inquiries from other Parties and interested persons, and to provide relevant documents, regarding: (a) any sanitary or phytosanitary measure of general application, including any control or inspection procedure or approval procedure, proposed, adopted or maintained in its territory at the federal, state or provincial government level; (b) the Party's risk assessment procedures and factors it considers in conducting the assessment and in establishing its appropriate levels of protection; (c) the membership and participation of the Party, or its relevant federal, state or provincial government authorities in international and regional sanitary and phytosanitary organizations and systems, and in bilateral and multilateral arrangements within the scope of this Section, and the provisions of those systems and arrangements; and (d) the location of notices published pursuant to this Section or where such information can be obtained. [Note: imagine if governments had a binding obligation to provide inquiry points that is able to answer all reasonable inquiries about Canadian laws from Canadians, and to provide relevant documents.] 2. Each Party shall ensure that where copies of documents are requested by another Party or by interested persons in accordance with this Section, they are supplied at the same price, apart from the actual cost of delivery, as the price for domestic purchase. The World Trade Organization Agreement has similar provisions, although these are scattered throughout the covered agreements. (13) The Canadian government considered that the above provisions did not require specific implementing legislation because Canadian domestic laws already provided for publication of laws and because the royal prerogative allows the government to bind Canada in international agreements. In the NAFTA Canadian Statement on Implementation (Canada Gazette, Part I, 1 January 1994), it was stated that NAFTA Chapter Eighteen (1802, 03) and Seven (718) provisions, cited above, did not require changes to domestic law to implement them, although administrative measures were taken to comply (e.g.: expansion of inquiry point operated by Standards Council of Canada to comply with 718). However, in the North American Free Trade Agreement Implementation Act, the Act provides that the NAFTA, "including the Schedules of Canada, of Mexico and of the United States, referred to in Annex 302.2 of the Agreement, shall be published in the Canada Treaty Series." In addition, Parliament expressly approved the Agreement in s. 10 of the Act. Canada's binding obligations to other trading countries, and foreign "interested parties" creates a situation where, arguably, Canada has more express, detailed, legally binding obligations to publish its laws for the benefit of foreigners than it does with respect to its own citizens. There are several hundred statutory and regulatory provisions that explicitly require publication of various documents that are used in connection with processes prescribed in statutes. There are a number of examples where the law expressly encourages agencies to educate people about the law. Various international trade agreements include requirements that the trading partners' trade laws be transparent. The Canadian Human Rights Act gives an educational function to the Canadian Human Rights Commission (s. 27(1)(a)). In addition to statutory and other legal obligations to publish statutes and regulations, there are a number of similar legal obligations to publish court decisions. In 1823, the Legislative Assembly of Upper Canada passed a law to ensure that a public record of court decisions would be maintained. (15) In 1836 the New Brunswick government passed legislation creating the position of official reporter of the New Brunswick Supreme Court. (16) In 1850, Quebec passed a law that provided for a per capita levy on each jurist of the province to fund the publication of a law report. (17) In 1875, the federal Parliament enacted the Supreme and Exchequer Court Act, S.C. 1875, c.11, s. 73: "The reports of the decisions of the Supreme Court and of the Exchequer Court, shall, subject to the direction of the Judges of the said Courts, be published by the Registrar appointed under this Act." (18) Current statutes that continue this tradition include s. 17 of the Supreme Court of Canada Act and s. 58 of the Federal Court Act. In Ontario, s. 63.5 of the Law Society Act gives the Law Society the power to make rules "respecting the reporting and publication of the decisions of the courts." In Quebec, a Crown corporation known as SOQUIJ (Société québecoise d'information juridique) was created in 1974. The SOQUIJ Act came into force in 1976. (Loi sur la Soiété québécoise d'information juridique [Revised Statutes of Quebec, c. S-20] is available from the Government of Quebec at
www.gouv.qc.ca/publicat/indexa.htm.) The Act provides in s. 21 that SOQUIJ "shall cooperate with the Quebec Official Publisher in publishing judicial decisions rendered by the courts and quasi judicial tribunals of Quebec" without granting SOQUIJ a publishing monopoly. This section gives SOQUIJ a regulation-making power to establish by by-law the terms and conditions for selecting decisions to be published. The By-law Respecting the Collection and Selection of Judicial Decisions, April 2, 1986, G.O.Q. 1986.II.362, prescribes that "clerks of the courts in Quebec shall send to [SOQUIJ] a copy of every judicial decision delivered with reasons." In a recent court case, Wilson & Lafleur c. Société québecoise d'information juridique (SOQUIJ), [1998] A.Q. no. 2762 (QuickLaw), Quebec Superior Court, Sept. 21, 1998, Croteau J. delivered a 37 page judgment on a complaint by a private legal publisher that the law creating SOQUIJ, primarily because (a) SOQUIJ makes a selection of which court decisions to publish and Wilson & Lafleur wanted access to all court decisions to make their own selection, and (b) the cost of obtaining copies of individual court decisions is $2.00 per page. Wilson & Lafleur contended that these problems interfered with its freedom of the press and freedom of expression. The court rejected these complaints for a variety of reasons. The court noted that before SOQUIJ was created, the problems of access to court decisions were much worse than exist now, that SOQUIJ was created at the request and with the agreement of Quebec's legal community, that SOQUIJ's method for selecting cases to publish is quite transparent, that any journalist can get free copies of any court decision, that it is not for the court to decide how much is too much for photocopying charges, and that there are no prohibitions on which cases Wilson & Lafleur can publish. The judge noted that since the creation of SOQUIJ, the government has continued to improve access to court decisions as new technologies developed. The judge rejected the view that Wilson & Lafleur had a constitutional right to obtain all copies of court decisions at no more cost than the actual cost of photocopying. It remains to be seen whether this decision will be appealed. (19) There is another aspect of access to the law worth noting, and that is the principle of open courts. Canada has its secret hearings and trials under the Canadian Security Intelligence Act and Official Secrets Act, the Young Offenders Act provides certain prohibitions on publishing information about young offenders, and the Criminal Code and the common law provide the courts with the discretion to order non-publication of certain aspects of their proceedings. It is nevertheless accurate to say that the law requires open courts. The Supreme Court of Canada has said, quoting Bentham, "Where there is no publicity, there is no justice. Publicity is the very soul of justice." (20) Aside from obligations to publish the law, there are some statutory provisions that specifically require that government be given notice of certain legal issues and be given a right to appear and make arguments on those issues. Section 57 of the Federal Court Act provides 57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2). The notice must come at least ten days before the matter is to be argued and the government has the right to appear and be heard. Where an Attorney General for a Canadian government makes submissions, that Attorney General shall be deemed to be a party to the proceedings for the purposes of any appeal in respect of the constitutional question. In addition, the ss. 37-39 of the Canada Evidence Act gives the government the right to object to disclosure of some information where disclosure would harm the public interest (particularly relating to international relations, national defence, national security and Cabinet confidences). Thus, the government has a statutory right to object to disclosure of certain types of information and to appear before courts to make that argument. There are special procedures contemplated for courts to assess the government's objections. The new Federal Court rules require that litigants provide the court with both English and French versions of any law that parties cite. This is an interesting example where the court has taken steps to "legislate" an improved access to the law for itself. Other laws require the defendants or victims be given information about the legal proceedings that affect them. Section 7 of the Charter has been used by the courts to require that defendants be given full disclosure of the prosecution's case as a basic condition for fair trials. In my view, a constitutional right to full disclosure of information to be used at a trial is an example of access to the law, in the sense that the decision in the trial will make law, and there is a constitutional requirement for information to be provided before that law will be valid. A similar "access to the law" requirement can be found in s. 10 of the Charter: everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; . . ." Some laws require that specific information be provided to victims of crime as a statutory requirement, while other laws require that victims of crime be provided information about the prosecution and sentence of their violator upon the victims's request. This is another example of a type of statutorily required access to the law. (21) The above demonstrates that there is a wide variety of legal obligations on legislatures, governments, and courts to publish the laws and to make information available that will assist people in participating in the making of those laws (and court decisions). However, despite these legal obligations to publish the laws, there is nothing that expressly requires governments or courts to publish the laws using modern media, to publish in a medium that has the potential to reach the widest audience, or to make the laws available at the lowest marginal cost of reproduction. When writing was first invented, the notion of published "law" was not generally realizable. (22) The religious pulpit and the town crier were the best ways of disseminating information. The invention of the printing press changed all that and over time, all laws and court decisions were published using this modern medium. It would be unthinkable in the era of the printing press that legislatures would have the "option" of reverting back to pre-printing press media. In my view, in practice and, as seen above, sometimes by legal requirement, legislatures and courts have been required to publish the laws using the best available media. Now that the Internet and CD-ROM technology have been generally perfected, it might be argued that legislatures and courts have a moral, and perhaps legal, obligation to publish laws in the medium that makes them the most accessible. It can be questioned whether the maxim "ignorance of the law is no excuse" deserves respect where a legislature, government or court chooses to restrict the publication of the laws to paper copies placed in a relatively few libraries, when the option of widespread, free publication on the Internet is clearly available. In addition, in today's mobile society and global economy, there is a greater need than ever for easy access to the laws of other jurisdictions. When couples separate and live in different jurisdiction, it becomes essential to have access to laws relating to family matters such as divorce, custody, support payments, and child abduction. When family members get sick, have accidents, or die while travelling, it becomes important to know the laws of that other jurisdiction as they relate to entitlement to health benefits, rights to sue wrong-doers for negligence, or intestacy. When consumers purchase items from companies in other jurisdictions, it can be important to know the laws regarding contracts, sale of goods, and negligence in those jurisdictions. When individuals want to visit or immigrate to other countries, access to the customs, immigration, and employment laws in that other jurisdiction can be very helpful. Companies engaged in trade with other nations need access to the trade laws of the other countries. There are some who will note that not everyone has access to computers or to the Internet. This is obviously true, just as not everyone has access to libraries that hold paper copies of the laws--especially rural citizens and shut-ins. Clearly, not everyone is literate either. There will always be people for whom the law is generally inaccessible. However, the proportion of Canadians who have access to the Internet is on the increase, and publication of the laws on the Internet makes it possible for anyone with access to the Internet at home, at work, at a community facility, or at an Internet café, to access the laws, usually with considerably more convenience than resorting to paper copies, with vast cost savings when someone wants to obtain and store electronic copies of the laws compared to paper copies, and with the enormous advantage of electronic search tools to help people find what they are looking for. In addition, electronic publishing makes it possible to publish laws in a far more up to date fashion than is possible with paper publishing. Thus, electronic publishing provides an entirely different quality of access to the law that cannot be measured simply by calculating the number of people who have access to the laws via computer. Thomas Bruce, one of the founders of the Cornell Legal Information Institute, wrote in an e-mail to me dated Dec. 21, 1998: One would do well to look at the activities of non-lawyer professionals as intermediaries for people who don't have Net access or don't use it for this purpose. It has been our highly subjective impression, so far unexplored in any more rigorous way, that the quality and volume of reporting of [United States] Supreme Court decisions via local media such as small-town newspapers have improved as a consequence of reporter access to decisions via the Net. Many people have neither the time nor the inclination to immerse themselves in opinions--they just want to have someone tell them what the law is--but their situation can be improved enormously by giving better access to those they choose (or who are chosen for them) as intermediaries, like union officials, reporters, police officers, city managers, and so on. For any given opinion issued by the Supreme Court on our site, 7 times as many people will read the syllabus as read the majority opinion. So there are enormous, pyramidal, secondary effects here which may be in fact the most important part of all this. As the saying goes, don't let the perfect solution become the enemy of a good solution. A choice by courts and legislatures not to publish laws for free on the Internet represents a conscious choice to limit publication of the law. What could be more contrary to freedom of information and the rule of law? One view is that the Crown owns copyright in the law, and that copyright is administered by the executive branch of government. This view is perhaps most clearly seen in Attorney General of New South Wales v. Butterworth & Co. (Australia) Ltd. (1938), 38 NSWSC 195. In this case, the New South Wales Supreme Court Chief Justice, Long Innes, held that Crown prerogative gives the Crown the exclusive right to print and publish statutes, and that this right is in the nature of a proprietary right. The Chief Justice also suggested, without making a definitive finding, that if copyright were not contained in the Crown prerogative, it would be found to be covered by the Copyright Act then in effect. Thus, the government was granted a decree that Butterworth had no right to publish statutes. This decision has not prevented the development of a healthy legal publishing industry in the common law countries, and Australia, as discussed in detail later, is a leader in making the law publicly available. In the United States, the Copyright Act, 17 U.S.C. Section 105 (1988) prohibits copyright of federal information by the government. Thus, the U.S. federal laws are in the public domain and no copyright attaches. The same is true of court decisions given the decision of the U.S. Supreme Court in Wheaton v. Peters, 33 U.S. 591 (1834) ("no reporter . . . can have any copyright in the written opinions delivered by this court"). (Issues relating to private publisher copyright and court decisions in the U.S. are discussed later.) In Canada, leaving aside the question of Crown prerogative, the federal government has legislative jurisdiction for copyright law. Section 12 of the Copyright Act is the provision dealing with Crown copyright. This section gives copyright to the Crown in works that are "prepared or published by or under the direction or control of Her Majesty or any government department." An argument could be made that governments cannot hold copyright in the laws because the laws--statutes and court decisions--are not prepared or published under the direction or control of Her Majesty or any government department, if these words are meant to distinguish between the Executive Branch of government and the law-making branches of government: Parliament and the courts. In other words, it might be argued that s. 12 protects works created by the Executive Branch of the government, and does not cover works created by Parliament or the Courts. Under this argument, any implication that governments can "give" permission to copy the laws might be erroneous. However, there are no precedents upholding this argument, in part perhaps because there are no "copyright in the law" cases in Canada and exceedingly few elsewhere. There is a diversity of approaches to copyright in Canadian legislative materials between the various jurisdictions. The Information Highway Advisory Council, in its 1995 Final Report, recommended that Crown copyright generally, and not specifically in relation to the laws, should be maintained, but: The Crown in Right of Canada should, as a rule, place federal government information and data in the public domain. Where Crown copyright is asserted for generating revenue, licensing should be based on the principles of nonexclusivity and the recovery of no more than the marginal costs incurred in the reproduction of the information or data. ... the federal government should create and maintain an inventory of Crown works covered by intellectual property that is of potential interest to the learning community and the information production sector at large; negotiate nonexclusive licenses for their use on the basis of cost recovery for digitization, processing and distribution; and invite provincial and territorial governments to provide similar services. The Yukon Territory and the federal government take the most liberal approach to Crown copyright in statutes and regulations, by permitting anyone to make copies without permission for any purpose, while the other jurisdictions make fairly strongly worded prohibitions against copying the laws for anything other than personal use. It appears that perhaps the intent of these notices is to prevent copying by commercial publishers of the electronic version as prepared by the government, while permitting commercial publishers to manually type (or optically scan) the text of statutes if they wish to publish individual statutes (presumably with some value added to the raw legislative text). Because the federal government was the leader in publishing statutes and regulations for free in Canada, and is responsible for the Copyright Act, it is instructive to take note of the Reproduction of Federal Law Order, P.C. 1996-1995, 19 December 1996). The preamble states the basic principles that support the copyright notice. Whereas it is of fundamental importance to a democratic society that its law be widely known and that its citizens have unimpeded access to that law; And whereas the Government of Canada wishes to facilitate access to its law by licensing the reproduction of federal law without charge or permission; Therefore His Excellency the Governor in Council, on the recommendation of the Minister of Canadian Heritage, the Minister of Industry, the Minister of Public Works and Government Services, the Minister of Justice and the Treasury Board, herby makes the annexed Reproduction of Federal Law Order. REPRODUCTION OF FEDERAL LAW ORDER Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version. The federal copyright notice that precedes this Order reads: The Department of Justice is pleased to advise you that public access to primary federal legal information has now been improved. Federal statutes and regulations and the decisions of courts and tribunals can now be copied without the usual restrictions of Crown copyrighted materials. There is no requirement to seek permission and there are no fees. Please note that this measure applies only to federal Crown copyrighted material and has no effect on privately copyrighted material that is added to or packaged with primary federal legal information. The Yukon Territory has perhaps the simplest copyright notice of all Canadian jurisdictions: "The legal material on this site may be reproduced, in whole or in part and by any means, without further permission from Yukon Justice." By contrast, the other jurisdictions in Canada all restrict copying for commercial purposes (and sometimes for other purposes as well). One can speculate that the reason that some provinces assert copyright and limit electronic access to the law is to sell legal texts to legal publishers and the law profession. To ensure governments have something to sell, it is necessary to impose copyright limits and to ensure that the electronic access to the law that is provided is not as functional as it could be. Note that courts also sell access to their decisions at rates between $1 and $2 per page--far above any real photocopying costs. The question is whether these apparently deliberate choices to limit public access to the law in order to raise a relatively few thousands of dollars in other sales is the best public policy. It should also be noted that governments are increasingly limiting the paper production and distribution of their laws and court decisions. This makes it all the more important for governments to provide the maximum access to electronic versions of the law. Perhaps the most detailed copyright notice is from British Columbia, which reads: Crown copyright in this Internet version of the 1996 Revised Statutes of British Columbia and Concordance belongs exclusively to the Province of British Columbia. No person or entity is permitted to reproduce in whole or part these Revised Statutes for distribution either free of charge or for "commercial purposes," unless that person or entity has a signed licence agreement with the Queen's Printer for British Columbia. The reproduction of part or all of these Revised Statutes for commercial purposes is reproduction for the purposes of sale, rent, trade, or distribution, or posting them on the Internet or on electronic bulletin boards. Further details about copyright protection over these and other government-owned works can be obtained by reference to the federal Copyright Act. Persons may make a single copy of specific Acts, in whole or in part, for Personal Use or for Legal Use. Personal Use refers to private study or private research; it does not include permission to make more than one copy. Legal Use refers to reproduction for use within letters of advice provided by a lawyer, accountant or other professional as well as reproduction for use in judicial, administrative or parliamentary proceedings. These Acts may not be reproduced by or for members of the public for purposes other than Personal Use and Legal Use without the prior written consent of the Queen's Printer for British Columbia. See also the copyright notices from Ontario, (23) Alberta, (24) New Brunswick, (25) Newfoundland, (26) Nova Scotia, (27) Quebec (28) and the Northwest Territories. (29) As would be expected, jurisdictions that do not publish their statutes for free on the Internet have even tougher copyright notices (for example, see Saskatchewan [30]). The B.C. Superior Courts notice reads: The decisions of the Superior Courts are made available on the Internet for the purpose of public information and research. The material on the database/web site may be used without permission provided that the material is accurately reproduced and an acknowledgement of the source of the work is included. Copying of the materials, in whole or in part, for resale or other commercial purposes is strictly prohibited unless authorized by the Superior Courts. The question of who owns copyright in statutes and court and administrative tribunal decisions is one that is almost never litigated. It has been used by some governments to justify a refusal to publish the laws electronically and to justify using the laws to generate revenues. One way to challenge these arguments is to question the legal theory of copyright in the laws, but perhaps the better way is to focus on the policy choices and arguments relating to access to the laws. Access to the Electronic Copy of Statutes under Freedom of Information Laws Another aspect to the question of "who owns the laws" is whether persons may request copies of statutes in electronic form under freedom of information laws. The issue is essentially whether freedom of information laws provide requesters with the right to choose the format by which the information should be provided, or whether governments control the format by which to deliver information requested under freedom of information laws. In Tolmie v. Canada (A.G.), Oct. 14, 1997 (F.C.T.D.), McGillis J. dealt with a case where Mr. Tolmie requested, on Jan. 6, 1995, under the Access to Information Act the Revised Statutes of Canada in electronic form. "The preferred format is the existing Wordperfect 5.1 format that is presently used within Justice Canada for creating the Statutes. However, alternative formats such as the Folio format used on the CD-ROM produced for this purpose would be acceptable." On August 20, 1995, the Department of Justice published the electronic statutes and announced they would soon be published on CD-ROM, which occurred in October 1995. The CD-ROM was priced at $225.00. McGillis J. rejected Mr. Tolmie's request on the grounds that the statutes were publicly available in electronic format and therefore excluded from the application of the Act under s. 68(a). (31) In the United States, the Missouri Court of Appeals upheld a trial judge's order that a requester be given the electronic version of the Statutes of Missouri in Deaton v. Kidd, 932 S.W. 2d 804 (1996, upholding Circuit Court of Cole County, No. CV193-1426CC, Nov. 21, 1994). The Missouri government office responsible for the statutes, the Revisor of Statutes, had a contract with two private sector parties to sell the computerized versions of the laws, with royalties payable to the Revisor's office. The court found that the Missouri equivalent to Canada's federal Access to Information Act applied to the computerized version of the statutes. The law requires that "each public governmental body shall make available for inspection and copying by the public of that body's public records." The key issue was whether the Revisor had complied with the sunshine law by making only the paper version of the statutes available. The court found that he did not comply with the law, that the computerized version of the laws was a record and that the Revisor is required to make the computerized version available. The trial judge said: "Although the text is identical, electronic versions of the statutes offer faster and more thorough research to a computer user." Earlier in the decision, the judge noted: The Revised Statutes on computer disk have additional features not offered by the book form. The annual computerized version integrates previous supplements into the main body of the Revised Statutes. There is no need to compare the hardbound books with the soft cover supplements. The computerized version allows the user to search all volumes in seconds by key word, phrase or statute number. The user is no longer limited by the index or his knowledge of where to look in the Revised Statutes to find a particular topic. The Court of Appeals, per Lowenstein J., said (p. 806): Whether the Revised Statutes are public records is an easy question given a legal system which charges the public with having a knowledge of the law and proclaims that ignorance of the law is no excuse for its violation. As the trial court notes, "it is hard to think of a more important public record than the general laws of the state." This court's analysis is not affected by the fact that the public record at issue is on computer tape. The Court of Appeals noted that the Committee on Legislative Research has the power, by statute, to determine the form and price for selling the statutes and that this power permits the Committee to set a price higher than marginal costs. However, the Court ruled that this power did not allow the Committee to establish the price through bidding "because it essentially limits access to a public record to those who bid the highest. ... Until the price is set by the Committee in the manner prescribed by 3.140, the tapes should be sold at cost as ordered by the trial court." Other U.S. states have differently worded laws and thus different approaches to access to the electronic version of the statutes. (32) With respect to freedom of information relating to access to electronic databases of court decisions, there are two American cases on this topic. In Tax Analysts v. U.S. Department of Justice, 913 F.Supp. 599 (D.D.C. 1996), the District Court of the District of Columbia considered a request for the Department of Justice's "Justice Retrieval and Inquiry System" ("JURIS"), an electronic database of federal cases, regulations and digest material. The system was developed by the Department of Justice and became operational in 1974. However, in 1983, the Department of Justice contracted with West Publishing to provide 80% of the information in JURIS. West collected, organized, and computer-formatted cases, opinions, and digests to make them ready for use on JURIS. The contract limited how the U.S. government could use the data it had contracted for. The data could not be (1) used outside the JURIS system; (2) used by anyone other than authorized JURIS users; (3) transferred or assigned; (4) stored, reproduced, transmitted, or transferred for consideration; (5) distributed by JURIS users without obtaining a written agreement from the transferee not to further disseminate it; and (6) used in any way once the contract was terminated. The issue was whether JURIS was an "agency record" for the purposes of the U.S. Freedom of Information Act, and specifically, whether JURIS was "under the control" of the Department of Justice at the time of the request. The court ruled that because of the above constraints on the use of the JURIS database, the database was not "under the control" of the Department of Justice and was not an "agency record" for the purposes of the Freedom of Information Act. Tax Analysts is a non-profit organization that publishes, in printed and electronic form, news and documents about tax matters, including summaries and full text of tax decisions by federal courts. It argued that West's contractual limits on the use of the JURIS database was nothing more than an attempt by West to create a copyright or proprietary interest in public domain court decisions. They argued that the only value West added to the court decisions was "mechanical drudge- or machine- work." The court was of the opinion that making the data machine-readable takes considerable time and effort, formatting consistent with JURIS conventions, "including text and file restrictions, paragraph indentations, centering of headings, and replacement of JURIS-unacceptable characters with an equivalent word or abbreviation," and that this was something more than "mechanical drudge- or machine- work." The court ruled (summarizing other relevant cases): West has not attempted to license "public domain" data, but rather its electronic compilation of public domain data, which it is legally entitled to do. See West Publishing Company v. Mead Data Central, Inc. 616 F.Supp. 1571 (D.Minn.1985) (holding that West database is copyrightable because "while the data lies in the public sphere, the arrangement and pagination of this publication reflects the skill, discretion and effort of the person crafting the arrangement."), aff'd 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 ... (1987); see also Callaghan v. Myers, 128 U.S. 617, 649, 9 S.Ct. 177 ... (1888) ("such work of the reporter, which may be the lawful subject of copyright, comprehends ... that order of arrangement of the cases, the division of the reports into volumes, the numbering and paging of volumes ..."). More will be said about the Mead Data case later, when this article discusses private copyright in public laws, but at this point it important to note Mead Data was an affirmation of preliminary injunction to stop Mead Data from publishing certain materials that cited West's court reports. The case did not proceed to trial on the merits, as the parties settled the case following this decision. More importantly, the U.S. Supreme Court issued an important ruling on copyright relating to databases (in that case, telephone books), that has left some courts and commentators to question whether Mead Data is still good law (this is also discussed in more detail below). (33) The approach taken by the District Court relating to the JURIS database is not the approach taken in Canada under the federal Access to Information Act. In Canada Post v. Minister of Public Works, Feb. 10, 1995, the Federal Court of Appeal considered a case involving documents held by the Department of Public Works pursuant to a contract with Canada Post. The contract contained very strong confidentiality clauses. Despite the clauses of the contract, which strictly limited how Public Works could deal with the documents in question, the Court of Appeal held that the contractual provisions did not change the fact that the documents were "under the control" of the government department. The court emphasized in its reasons the importance of giving a broad interpretation to favour access to information. (34) In another U.S. case requesting government-held electronic case law, Baizer v. U.S. Dept. of Air Force, 887 F.Supp. 225 (N.D. Cal. 1995), the requester asked the Air Force to produce copies of U.S. Supreme Court decisions held in its computer database. The U.S. Freedom of Information Act applies to "agency records" but does not define that term, and the Records Disposal Act specifically excludes library reference materials. In this case, the Court found that the Supreme Court decisions were not "agency records" but were "library reference materials," and therefore the Act did not apply. The essence of the decision is this: "if material is maintained solely for reference purposes or as a research tool, and are not integrated into the agency's files or relied upon for decision making, the records are not controlled by the agency and are therefore not agency records." Part of the reasoning in Baizer was that agencies need to be able to refuse to disclose electronic records so that they have valuable databases that they can exchange with other agencies and private publishers for their databases. (35) Shortly after the Baizer decision, the government released the material on its own with little explanation. The decisions are now available for free on the Internet at www.fedworld.gov/supcourt/index.htm, prefaced by the following announcement (www.cptech.org/legalinfo/flite.txt): I am pleased to announce that the U.S. Air Force has agreed to release a historic file of Supreme Court decisions from its FLITE ("Federal Legal Information Through Electronics") system. The file consists of over 7,000 Supreme Court opinions dating from 1937 through 1975, from volumes 300 through 422 of U.S. Reports. This file had previously been determined to be exempt from release under the Freedom of Information Act by the U.S. District Court for the Northern District of California. That decision was not appealed. Nonetheless, the Air Force has agreed as a matter of discretion to release these materials. Sally Katzen
In summary, a 1938 case that protected Crown copyright against a private publisher has not prevented Australia from moving to the vanguard in publishing its laws. In Canada, a decision limiting the right of an information requester to obtain a copy of the electronic version of the federal laws did not prevent the federal government from publishing those versions for free on the Internet (and at a relatively modest price on CD-ROM). In the United States, decisions under the Freedom of Information Act which limited public access to electronic versions of court decisions has not prevented free electronic public access to all Supreme Court and federal Court of Appeals decisions. The legalities appear to be less important than the public policy decisions. Privatizing the Law---Copyright for Private Publishers The publication of the laws has always been privatized to a large extent. In Canada, only the Supreme Court of Canada and the Federal Court of Canada published their own reports on paper. From the earliest times, private publishers were the sole source for judicial decisions. The earliest reports were truly reports---a private person sat in the court room and wrote down the judge's oral reasons as accurately as the person could, but the result could not be verbatim and the private reporter claimed copyright in the resulting work. Over time, private publishers received copies of the decisions so that the only work required of the publisher was to decide which judgments to publish, to choose an order for printing the decisions, and to add summaries (headnotes) to the decisions. The publishers might correct some typographical errors, add extra citations to court decisions cited by the judges, and of course, add page numbers for their own reports. In 1834, as noted earlier, the U.S. Supreme Court ruled in Wheaton v. Peters, 33 U.S. 591 (1834) that "no reporter ... can have any copyright in the written opinions delivered by this court." Nonetheless, because private publishing of court decisions creates private profits, many different report series have been created, some focusing on specific jurisdictions, some focusing on specific topics. What developed was that private publishers essentially monopolized the publication of court decisions, in part because courts felt the private publishers were already providing adequate access to the law and in part because publishing costs money and requires a certain amount of marketing, which the courts might be lacking. Naturally, private publishers are motivated by profit. The decisions they choose to publish are the ones they hope will create the largest profit. Thus, for example, while corporate commercial law is very well covered by private publishers, poverty law issues have not attracted much attention from them. Despite the thousands of administrative decisions concerning unemployment insurance each year, it is difficult to get access to those decisions from private publisher sources. (36) Recent court decisions have ruled that copyright does not
attach to a party that compiles information or documents written from
another source. Thus, other than the headnotes, private publishers
probably do not have copyright in the court decisions they are publishing.
They might claim copyright in the selection of court decisions, so long as
there is an adequate degree of originality, skill, or judgment involved in
choosing the decisions. Simply publishing all decisions from a given Court
of Appeal will not suffice. (37) Nonetheless, there is some concern (especially in the
United States where publication of court decisions is more of a monopoly
than in Canada) that private publishers might be able to use copyright
claims to limit the availability of court decisions. In Canada, the concern has now proceeded to a lawsuit
between the Law Society of Upper Canada and three legal publishing
companies, Carswell Thomson Professional Publishing, Canada Law Book Inc.
and CCH Canadian. The Law Society makes photocopies of court cases and
excerpts from other legal texts as requested by Ontario lawyers and judges
and for this service it charges a fee which it says is intended to
approximate Plaintiff's cost in providing this service. The publishers
filed a statement of claim on July 23, 1993, but did not immediately
pursue the action. The Law Society later filed an
application for a declaration that its practice did not infringe
copyright. The publishers then revived their original claim. The Law
Society filed its amended Statement of Defence and Counterclaim on March
2, 1998. The publishers filed their Amended Reply and Defence to the Law
Society's Counterclaim on April 8, 1998. The trial has just been heard and
at the time of writing, we are waiting for the decision of the Federal
Court Trial Division. In essence, the publishers claim copyright over their
publication of court decisions. The publishers claim that their works are
copyright by virtue of the system of citations, cumulative indexes,
headnotes, classification of cases, summaries of references to statutes
and other reported cases, addition and verification of citations and the
status of any appeals from reported cases. All of these elements are
created independently of the actual text of judicial opinions, statutes,
and regulations. The publishers acknowledge that they have given both
implied and express licenses to lawyers to make copies from their
publications on the photocopiers of their own law firm. Thus, the idea is
to make it necessary for law firms to purchase the publishers'
publications. If the Law Society is permitted to send copies to law firms,
the law firms may feel it is unnecessary to purchase the publishers'
publications. The Law Society claims that the publishers have no
copyright in the text of the court decisions, that it only copies
individual cases without any regard to the publishers' selection and
arrangement criteria, and that if there is copyright infringement by
copying the headnotes, it is a fair dealing that is permitted by law. The
Law Society emphasizes that the copies it provides to its members are in
all cases provided for the purpose of research or use in court. The Law
Society denies that it makes a profit from providing this service, while
the publishers allege that the Law Society is making a profit through its
photocopying service. The Law Society claims that 90% of the requests it
receives are for individual judicial opinions, but other requests are for
short passages from legal texts published by the Plaintiffs which
summarize and explain the law. The Law Society's Statement of Defence states in a simple
fashion: "The Plaintiff has no copyright or right to assert copyright
in publications which include or are based upon the primary sources of law
which are created by the judiciary or the Crown." The Law Society
also notes that the Plaintiff "takes full liberty in copying and
publishing judicial decisions, legislation, regulations and other work for
which it does not own the copyright, for which it does not pay, and in
respect of which it has no authority to copy or publish, other than in
keeping with the prevailing norm in relation to the free access and use of
sources of law in Canada." The Law Society argues that the publishers claims cannot
be used to produce the result that the private publishers have a copyright
over the text of the law itself: The Plaintiff's assertion of copyright in
primary and secondary sources of law implies the possibility, if not the
intent, to restrict their access and use, which is repugnant to the notion
of the rule of law in Canada. Public policy in Canada requires that the
dealing in the Defendant's publications, as hereinbefore set out, not be
regarded as an infringement of any copyright which the Defendants may own,
but a fair dealing and use of such publications in the context of the
administration of justice in Canada. The public interest in Canada requires that there be
unrestricted access to and free use of selected portions of published
primary and secondary sources of law and that such portions be used
intact, with their source clearly identified. The Defendant's dealing with
the works as stated herein promotes equal access to the sources of law by
members of the legal profession and the judiciary throughout the Province
of Ontario in a manner consistent with the rule of law and the Canadian
Charter of Rights and Freedoms. The Defendant's dealing with the
Plaintiff's works is justified in the public interest and it would be
contrary to the public interest to restrict or restrain such
dealing. The Law Society argues that the publishers do not suffer
any damages from its photocopy service because use of the private
publications in this way enhances their visibility and reliability in the
marketplace and because the publishers account for this kind of
photocopying in setting their purchase price. The publishers allege that
this service does reduce its sales, that the purchase price does not take
into account this photocopying service and in any event, that the purchase
price is not relevant to the issues at hand. The publishers deny that they have a monopoly over the
provision of any part of the body of law in Canada and they reject the
view that there is a "prevailing norm" that permits copying from
its publications. The Plaintiffs also note that the Law Society of Upper
Canada itself is a legal publisher of the Ontario Reports, and the
Law Society asserts copyright in its publication of Ontario legal
decisions, with this copyright notice: "No part of this publication
may be reproduced or transmitted in any form or by any means, including
photocopying or recording, without the written permission of the copyright
holder." The Plaintiffs argue that this copyright notice means that
the Law Society should not be permitted to make an argument that there is
a public interest requiring the "unrestricted access to and free use
of" legal publications. The Plaintiffs also note that in September 1996, they
affiliated with the Canadian Copyright Licensing Agency (CANCOPY), and
permitted CANCOPY to negotiate licenses with lawyers that would permit
them to photocopy works represented by CANCOPY. In April 1997, the
Federation of Law Societies of Canada advised Canadian lawyers that it had
serious concerns that CANCOPY's proposed license for lawyers was neither
fair nor comprehensive. In the January 1999 edition of Canadian
Lawyer, it was reported that CANCOPY has developed a new photocopying
licence designed for law firms that would give all employees of a law firm
permission to copy published works like law reports and textbooks without
fear of exposure to copyright infringement lawsuits. The licence would
cost approximately $30 per employee per year. The results of the Thomson et al. v. Law Society
legal
copyright case will likely set a benchmark in Canada for what the law
requires and permits with respect to private copyright of texts with
content primarily created by the courts and legislatures (here, I am not
referring to secondary legal materials, only to reports of court decisions
and publications of statutes and regulations). There is already a body of recent case law from the United States concerning private copyrights in the law. These cases do not concern photocopying of someone else's publications, but merely a reference to those publications. The cases primarily concern West Publishing, which is now owned by the Thomson Group. The first of these cases arose from a successful attempt by West Publishing to obtain a preliminary injunction against Mead Data to prevent Mead Data from publishing electronic court decisions that told readers where the court decisions, and the precise pages, they were reading in electronic format were available in West's print reports of the same decisions. The reference to West's reports and page numbers is called "star pagination" (because of the symbols inserted in the body of the text to indicate West's pagination). At the moment, legal citations all relate to paper publications. There is no adequate consensus method for citing electronic court decisions. West has a virtual monopoly in publishing U.S. court decisions. Thus, the only way to publish electronic court decisions in a way that they can be cited by lawyers and others is to refer to West's page numbers. By telling readings how to cite a legal opinion to West's publication, it becomes possible to provide courts with meaningful citations without having to purchase West's publications. There is a certain surreal quality to the debate about whether there is copyright in page numbers--which has had the effect of limiting the publication of court decisions, and debating whether it is too onerous for courts to insert paragraph numbers in their decisions. It is difficult to see how either of these debates can enhance the reputation of the legal system and both debates appear to distance the U.S. from its heritage of putting this information in the public domain. (38) The alternative to referring to paper page numbers is to develop a consensus approach to citing electronic decisions. It seems fairly obvious to a number of observers that the electronic citation method will require courts to assign a unique identifier to each decision it renders, for courts to adopt a unique abbreviated name, and for courts to number the paragraphs in their decisions. Nonetheless, the debate continues, especially in the United States. These types of recommendations seem to be better received in Canada than in the United States. In 1996, the Canadian Judicial Council, composed of all the Chief Judges and Associate Chief Judges of the superior courts across Canada has recently created and approved a standard for the preparation of electronic court judgments. The standard includes the obligation for courts to include paragraph numbers. The implementation of this part of the standard is now well underway, such that today, the majority of Canadian courts are identifying the paragraph numbers in their judgments. The Canadian Citation Committee is currently consulting on a second standard that will create a uniform way to identify courts and to number court decisions, without reference to private publishers' reports. These standards should avoid private publisher copyright issues, and will also make it possible to cite cases more uniformly (uniform citation is an important way to improve access to the law). (39) If Canadian legislatures, governments, and courts decide to follow Australia's leads in publishing the laws, and adhere to the electronic publishing standards noted above, there should not be undue concern for the role of private legal publishers. Private publishers will always have an important role to play because they can add value to legislation and to court decisions. A good example are various annotated Criminal Codes. The real value of these books, in addition to presenting the text of the Criminal Code, are the notes about the different cases that have considered different sections of the code and editorial commentary. This is a tremendously valuable service for many practitioners and electronic publishing of the primary law should not pose a threat to this value-added publishing. The Australasian Legal Information Institute (described in more detail later), approaches the question of "who owns the law" this way: We have intentionally treated it as largely irrelevant to the development of AustLII. Our approach is that the obligation of governments, courts etc. to provide access to the law is independent of any questions of ownership. Furthermore, since the most liberal copyright law still does not deliver an electronic copy of a statute or case to a publisher--and certainly not on a daily or weekly basis--cooperation by public bodies is essential, and such cooperation inherently involves them licensing the materials to you, even if they do claim copyright. So we have just humoured claims of copyright, and treated them as something we need not deal with (and be distracted by) in the primary task of establishing the principle and practice of free public access to these materials. We have not had the same problems in Australia with the commercial publishers as in the USA, so it has been easier for us to take this approach. No Australian Court, Tribunal, or government agency that I can think of tries to sell primary legal materials (statutes, cases, treaties etc) without also (at least) allowing a publisher like AustLII to provide free access, and/or provide it themselves. There is one State tribunal that is an exception, but even it is about to give AustLII one of its main databases. Of course, copyright is still an important question. Among other things, it affects whether commercial publishers have to pay royalties to republish primary legal materials, and this also complicates arguments about free access. It affects the control public bodies can exert over how 'their' data is presented. However, AustLII's experience shows that the problems of copyright do not have to be solved before the principle of free public access can be established. However, it is worth being aware that Ken Thomson's company owns Canada's dominant English-language legal publisher, Carswell, the dominant French-language publisher, Yvon Blais, and the dominant American legal publisher, West Publishing (in addition to a string of Canadian newspapers, among other holdings). Further, QuickLaw Systems currently enjoys a near monopoly in online access to electronic court decisions and legislation in Canada. It is prudent to be aware of this degree of corporate concentration in private legal publishing. When Thomson acquired West Publishing recently, it resulted in a U.S. Department of Justice challenge that argued the merger was not in the public interest because it created too strong a monopoly in legal publishing. This resulted in some changes to the proposed merger which alleviated the government's concerns and which were approved by a court, although some observers have suggested that the government and the court did not do enough to protect the public interest. (40) The concentration of legal publishing is another reason why governments and courts should be more active in publishing their own laws and judgments electronically. Nonetheless, privatization of the laws and corporate concentration should not unduly threaten public electronic access to the law. The only developments that can threaten free electronic access to the law would be choices by Canadian governments and courts not to publish electronically and not to make electronic copies available for free on the Internet. As governments and courts become more active in publishing their laws, one danger area to watch out for is "co-publishing" agreements with private publishers, where the contractual terms might preclude free access to the law. This is what happened with respect to the JURIS and FLITE databases in the U.S., discussed above. It is possible to avoid unintended limits on access to the law by self-publishing, by publishing with a non-profit organization (such as a university), or by hiring private electronic publishers on a fee for service basis. Cost Concerns: A User-Pay Model for Publishing the Law? Certainly an important issue facing governments that may wish to improve public electronic access to the law is cost. Publishing anything, in any media, is more expensive than not publishing. Canadian governments all face difficult decisions in how to allocate limited resources. Publishing laws electronically produces rather intangible benefits, especially when compared to spending on health care, welfare, and education. These are irrefutable facts. Governments have been looking for ways to save money in all budget areas, including publication of the laws. The federal government has stopped preparing a loose-leaf consolidation of its laws (the last paper consolidation of regulations consolidated the regulations to 1978, and the last Revised [and consolidated] Statutes of Canada on paper consolidated the statutes to 1985 [although those Revised Statutes were not actually published until 1988]). Thus, the federal government has clearly concluded that electronic publishing is more cost-effective than paper publishing. Another cost issue is the view held by some governments that the "government's" information holdings are "proprietary" information that should be sold to raise revenues. Whatever one may think of this view with respect to government information generally, this view is especially suspect when it is applied to the laws. There is a positive obligation on governments and courts to publish the laws while this is not true for other government information (e.g.: most information requested under freedom of information laws). While access to government information under freedom of information laws might be described as producing limited public benefits and often only serving the personal interest of the requester, the same cannot be said about access to the laws. The provinces of Saskatchewan and Manitoba, among others,
charge fees for access to their statutes. Andrew Hubbertz, Head of
Government Publications for the University of Saskatchewan Libraries, wrote about this
issue
recently. He noted that Manitoba is offering access to its statutes
for an annual subscription of $275, while Saskatchewan is charging $95 per
year. He reports that Saskatchewan has sold a total of 570 subscriptions,
some of which are trial or complimentary subscriptions. Of the 570, fully
one-third were purchased by Saskatchewan government agencies. Hubbertz
wrote that whenever government sells information, the sales almost always
follow this pattern:
It is important to make the laws as accessible as possible for a number of reasons. First, as noted above, so that people are better able to guide their behaviour by the laws. Increasing the ability of citizens to know the law increases the likelihood that they will comply with it, and compliance is always less expensive than non-compliance (and the inspection and enforcement regimes that deal with non-compliance). Second, accessible laws are essential for letting people know what their legal rights are. Unknown rights are no rights at all. If we seriously believe in human rights and social benefits, these must be made known to citizens. Third, wide accessibility to the law is important for improving the quality of democratic discussion in Canada. The more access Canadians have to their laws, the more they will be able to participate in debates about the contents of those laws. (That they might choose, for various reasons, not to use that access to participate in policy debates, or that the laws might be too complex for many to fully understand, is no justification for limiting access to the laws.) As the cost of making this information goes down, it becomes increasingly difficult to justify the lack of available information from the Parliamentary and judicial processes for which the taxpayers have already paid. Fourth, as mentioned earlier, there are many cross-jurisdictional contexts where improved access to the law would make international trade, family law, contractual negotiations, estate planning, and many other common events easier. Fifth, improved access to the law could significantly reduce costs associated with complaints, claims, and litigation that would not be launched if individuals had a better understanding of how courts and tribunals have already interpreted the issues they wish to raise. This might be especially significant for routine administrative hearings relating to things such as employment insurance, tax, and immigration matters. Sixth, as government makes more primary legal information available for free on the Internet, this will help reduce the costs of commercially produced legal information for three reasons: commercial publishers will have reduced costs for the primary materials they intend to publish; and commercial publishers will no longer have a market to sell primary legal materials without adding any value. Seventh, where all the official sources make their legal materials available for free on the Internet, it is quite likely that each of those official sources will save money by avoiding the purchase of expensive case reports series and subscriptions to electronic case search services. Whatever revenue the official sources might make from selling their portion of the laws, the savings would quite likely exceed those revenues, although I do not know of any studies that compare costs associated with government and court purchases of primary legal materials compared to the revenues generated by selling primary legal materials. The various benefits that derive from the best access to the law that modern publishing techniques will allow combine to argue that governments and courts should not view law as "proprietary" information, should not see publication of the law as a way to raise revenues, and should not put the burden of paying for the publication of the law on individuals. Everyone benefits from the publications of the laws, even if only a small proportion of persons actually access the laws. (And it should go without saying that improving public access to the laws would benefit far more people than just lawyers, although there are still some who hold the view that the laws are somehow the exclusive concern of lawyers and judges. The estimates of who uses AustLII, cited earlier, should refute any notion that only lawyers and judges use the laws, as would even a moment's consideration of the number of businesses affected by some form of regulation or other, or by rulings in workplace sexual-harassment cases, or the number of people who buy tax-preparation or will preparation products each year, as just three examples. There are still some jurisdictions in Canada where governments choose to make the laws available electronically only to those who can pay the government's fee. There are other jurisdictions in Canada where electronic access is not available at any price. (It must be noted that on the databases provided by the private company QuickLaw, virtually all federal and provincial statutes and regulations, as well as almost all court decisions and an impressive array of administrative tribunal decisions have been available electronically, to those who can pay, for more than a decade.) All laws, statutes and judicial decisions and the rest, are now written electronically from the outset. Converting the word processing files to Internet-compatible files should not be prohibitively expensive. At the end of the day, the cost of publishing the law is a cost of democracy. Democracy has certain inherent costs that must be borne by the entire society for the benefit of society. Publication of the laws should not be seen as an optional expense, as government's proprietary information and should not fall into a "user-pay" model. In a paper written for the October 1998 conference of the Association pour le développement de l'information juridique, Ed Hicks of the federal Department of Justice suggested a perspective that I support. He invited conference participants to see Parliament, Legislative Assemblies and courts as organizations that produce a key product: laws. He then suggested that we should look at what it costs to run these organizations--salaries, overhead, etc., and compare that to the budgets that are dedicated to actually publishing the product that those organizations produce. The result is that very large sums go into running those organizations, and less than one percent is spent on publishing the laws. While it is obvious that cost is a factor to explain why Canadian laws are not fully accessible in electronic format for free, why would cost be a more important factor for Canada than for Australia? In any event, it is not clear that anyone in Canada has done careful cost analysis of the Australasian Legal Information Institute or the Tasmanian Legislation System Project to assess just what it would cost for Canada to establish a similar resource here (although we saw earlier that AustLII runs with a full-time staff of six and on a budget of approximately $400,000 per year for the next three years, and the Cornell Legal Information Institute runs with a full time staff of three, two of whom also have teaching and committee responsibilities, and a half-time administrator. AustLII has rejected using commercial advertising in providing public access to the law on the Internet. It noted that many Internet search engines now determine the advertisements that users see by the search terms they enter. "It seems no coincidence that when you search one popular Australian search engine for "sex discrimination," you get back lurid advertisements for sex aids." (41) However, AustLII does acknowledge which organizations provide funding to support the provision of particular databases, on the front page of the database, with a statement and a link to the funding bodies' web site. This is in place for the New South Wales Law Foundation (re: databases NSW and Commonwealth primary materials), Australian Business Chamber (industrial law), and the Department of Foreign Affairs (treaties). It should also be remembered that governments have always played an important role in providing access to the law. The first printing presses in Canada were run by King's Printers. The statutory requirement that the Supreme Court and Federal Court publish their own reports certainly requires substantial funds. More than thirty years ago, in 1966, the federal Department of Justice provided funding to a joint project involving both Queen's University and the University of Montreal. This was the origin of Quic/Law. The Department of Justice stopped providing funding in 1973. In 1968, the federal Department of Justice, the Quebec government, and the Canada Council provided funding to a project called DATUM (Documentation Automatique des Textes Juridiques de l'Université de Montréal). The project was to establish a database of Supreme Court of Canada decisions. DATUM was eventually taken over by SOQUIJ. In 1973, the Canadian Law Information Council (CLIC) was incorporated and the federal government was a major funder. CLIC subsidized the compilation of electronic legal databases, opened service centres and was engaged in a wide variety of efforts to make Canadian legal information more accessible, but governments withdrew funding and CLIC ceased its operation in 1992. Governments jointly fund Public Legal Education and Information (PLEI) organizations across the country. This led to the development of an electronic network and library for PLEI organizations to communicate and share information. This eventually led to the creation of the Access to Justice Network (ACJ Net) funded by the federal Department of Justice. ACJ Net has been providing free public electronic access to Canadian legal information for a number of years. The PLEI program and ACJ Net have primarily concentrated on secondary legal information for particularly vulnerable audiences. In fact, less than 10% of the ACJ Net resources were devoted to the distribution of primary legal materials. In addition, by contracting with the Université de Montréal since 1996 to host its web site canada.justice.gc.ca/, the federal Department of Justice has certainly helped make the Université de Montréal a centre of expertise in publishing primary legal materials. Thus, Canadian governments have been involved in funding access to the law for a very long time. That said, Canadian institutions, and in particular law schools, have not found the funding sources and access to electronic copies of primary legal materials that can be seen in the United States and Australia. A final cost consideration is that if an organization similar to AustLII existed in Canada (and if public bodies provided their data to AustLII and shared the costs of a Canadian version of AustLII), this could produce significant cost avoidance. I am convinced that all jurisdictions will eventually have to publish their laws on the Internet for free. Do they all have to invest in expensive computers, search engines, expertise in electronic formatting, so that each can publish their own materials--with the result that it is difficult to search for information across the various jurisdictions? Would it not be less expensive for the taxpayer for the various jurisdictions to invest in a central electronic warehouse to receive the electronic files, convert them to a uniform format, and present all of them on a platform that can be searched by one search engine? In my view, a Canadian version of an AustLII would probably present an opportunity for cost savings and improved service to citizens through co-operative federalism. Benchmarks for Electronic Publishing of the Law Canada is not the world's leader in making its laws accessible. While Canada is certainly ahead of most countries in the world, Australia and the United States are clearly further ahead in publishing laws on the Internet than Canada. While some might argue that the example of the United States is not a fair comparison, given American leadership in most high technology ventures and the large size and resources available to U.S. governments, it is fair to compare Canadian access to the law with Californian access to the law, given that the two have roughly the same populations. The comparison to Australia is even more compelling. Follow the Leader I: the United States In the United States, all federal statutes and regulations and most state statutes are available for free on the Internet. Supreme Court and all federal Circuit Courts of Appeals have their decisions available on the Internet for free, and a growing number of state courts are also publishing their decisions for free on the Internet. There is a breathtaking assortment of other legal information available for free on the Internet. Perhaps the original and best-known site dedicated to making electronic law accessible is the Cornell University Legal Information Institute (LII). It is well worth visiting this site. So well-respected is the Cornell LII, that the Australasian Legal Information Institute sought and received permission from Cornell to use the name Legal Information Institute. The Cornell Legal Information Institute (LII) was the first site to offer legal information on the Internet, in 1992, on a "gopher" site. The LII was created with a $250,000 multi-year startup grant from the National Center for Automated Research. One of the aims of the LII is to carry out applied research on the use of digital information technology in the distribution of legal information, the delivery of legal education and the practice of law. In 1993, the LII published on the World Wide Web, and because there was no Windows-based browser at the time, they created the first, which they named Cello. The Alta Vista search engine shows more than 50,000 sites point to the Cornell LII. The LII now gets more than 2.5 million hits per day, roughly 40,000 per hour on the U.S. Code alone during weekday afternoon "prime time." In a typical week, the LII receives visits from more than 70 foreign countries. The Cornell LII publishes an e-mail bulletin which delivers synopses of the decisions of the U.S. Supreme Court within hours of their release by the court, through an almost entirely automated process (using the synopses that accompany the decisions themselves). More than 17,000 persons subscribe to this free service. The LII offers e-mail delivery of full text of the opinions upon request, through an automated process. The LII also publishes legal information on CD-ROMs (and downloadable from the Internet), including a collection of historic decisions of the U.S. Supreme Court, a collection of resource materials on legal ethics, and collections of statutes. (42) The LII has received numerous accolades over the years. Here are two of the comments that the LII recently received: From the 1988 edition of Internet Lawyer: "Just about any lawyer who's spent more than three minutes online knows that Cornell Law School's Legal Information Institute is fantastic." From a user of the LII: "I'm not a student. I'm not a lawyer. I'm not a college graduate. I'm just a lower-middle-income-class working grunt. I've never seen the inside of a law library (except on L.A. Law, of course. :-)) and would never consider entering one because I find it so intimidating . . . Because of your site and your work, I've read more of the U.S. Code in the past 6 months than I had ever even contemplated reading before in my 36 years on this planet. So, thank you. You're doing a great service here. You're following the true philosophy of education." The Cornell Legal Information Institute has a page where you can search statutes from all states by searching for specified subjects. Another page allows you to see the various uniform laws that have been enacted by the states, and a summary of the "fundamental rights provisions" in each of the state constitutions. There is a glossary of legal terms that may be particularly confusing for non-lawyers. It is important to remember that funding for U.S. Law Schools follows a much different structure and history than in Canada, and that the LII was started with a grant from an external source. In addition to what the LII is doing, there are other important initiatives in the United States. Many law schools have followed the LII's lead and created very impressive collections of legal materials, some focusing on publishing court decisions from courts in their geographical areas, others focusing on publishing collections of information on specific subject matters. The Library of Congress publishes a huge collection of legal information on the Internet. In addition to the legal information that governments, law schools and others choose to make available for free on the Internet, consider whether there should be a statutory requirement to make legal information available for free on the Internet. In California, there is a statutory requirement for the state to publish the laws for free on the Internet. The following is in the Government Code of the California Codes (note that paragraph (b) is the key paragraph, which describes the Internet without actually using the word): 10248. (a) The Legislative Counsel shall, with the advice of the Assembly Committee on Rules and the Senate Committee on Rules, make all of the following information available to the public in electronic form: (1) The legislative calendar, the schedule of legislative committee hearings, a list of matters pending on the floors of both houses of the Legislature, and a list of the committees of the Legislature and their members. (2) The text of each bill introduced in each current legislative session, including each amended, enrolled, and chaptered form of each bill. (3) The bill history of each bill introduced and amended in each current legislative session. (4) The bill status of each bill introduced and amended in each current legislative session. (5) All bill analyses prepared by legislative committees in connection with each bill in each current legislative session. (6) All vote information concerning each bill in each current legislative session. (7) Any veto message concerning a bill in each current legislative session. (8) The California Codes. (9) The California Constitution. (10) All statutes enacted on or after January 1, 1993. (b) The information identified in subdivision (a) shall be made available to the public by means of access by way of the largest nonproprietary, nonprofit cooperative public computer network. The information shall be made available in one or more formats and by one or more means in order to provide the greatest feasible access to the general public in this state. Any person who accesses the information may access all or any part of the information. The information may also be made available by any other means of access that would facilitate public access to the information. The information that is maintained in the legislative information system that is operated and maintained by the Legislative Counsel shall be made available in the shortest feasible time after the information is available in the information system. The information that is not maintained in the information system shall be made available in the shortest feasible time after it is available to the Legislative Counsel. (c) Any documentation that describes the electronic digital formats of the information identified in subdivision (a) and is available to the public shall be made available by means of access by way of the computer network specified in subdivision (b). (d) Personal information concerning a person who accesses the information may be maintained only for the purpose of providing service to the person. (e) No fee or other charge may be imposed by the Legislative Counsel as a condition of accessing the information that is accessible by way of the computer network specified in subdivision (b). (f) The electronic public access provided by way of the computer network specified in subdivision (b) shall be in addition to other electronic or print distribution of the information. (g) No action taken pursuant to this section shall be deemed to alter or relinquish any copyright or other proprietary interest or entitlement of the State of California relating to any of the information made available pursuant to this section. There are other interesting Internet requirements in California statutes. (43) (For a somewhat similar Canadian precedent, requiring publication on the Internet of specific information, see the Civil Air Navigation Services Commercialization Act. [44]) The Canadian federal government has said its objective is to make Canada the most wired country in the world and the Information Highway Advisory Council recommended that Canada do what it can to ensure Canadian content, preferably in both official languages, is put on the Internet to the greatest extent possible. What would be a more natural starting place than putting Canadian laws on the Internet as fully as possible? Follow the Leader II: Australia Australians have clearly made it a greater priority to publish laws on the Internet than Canada has done to date. The Australasian Legal Information Institute (AustLII) is, by any measure, a world leader in how to make laws accessible electronically (it is called "Australasian" because the site hopes to contain legal information from New Zealand and New Guinea in addition to Australian legal information, although it does not presently have materials from those two countries). Anyone with a serious interest in public access to legal information should become acquainted with AustLII. Two papers that provide detailed descriptions of the various policy and technical issues concerning AustLII are "The AustLII Papers--New Directions in Law via the Internet," 1197 (2) Journal of Information, Law and Technology (JILT), and "AustLII--Changing the nature of public access to the law." The following description of AustLII draws from those two papers. What is AustLII? The Australasian Legal Information Institute is a joint facility of the law faculties of the University of Technology, Sydney, and the University of New South Wales. It has two part-time Co-Directors, a full-time staff of six, and a number of part-time employees and research associates. AustLII began in 1995. AustLII is funded entirely by grants from public institutions--academic, governmental, public-funded and philanthropic, and from business organizations. AustLII's formation in 1995 was funded by academic funding of $160,000. AustLII will receive funding of approximately $400,000 for each of the three financial years from 1997-2000. This will fund current staff salaries and equipment, but no more than that. AustLII believes its stakeholders will, over time, include a mix of organizations falling into at least the following categories: business, trade union, and professional (including the legal profession); tribunals with a strong interest in making their decisions more widely known; government agencies with a strong interest in wider availability of a certain class of information (e.g.: treaties, trade law); community interest organizations (such as Law Foundations); and the academic legal community, for research and teaching purposes. AustLII is committed to operating without commercial advertising. As of October 1998, AustLII received about 140,000 hits per day. This represents visits from more than 5,000 separate individuals every business day, peaking at approximately 230 concurrent visitors, accessing more than 65,000 pages per day. These numbers grew exponentially from 1995. AustLII's users come from the whole community. It is demonstrably false to think that only lawyers access the law. The legal profession and business account for about 30% of AustLII's users; educational institutions about 30%; community organizations 10%; government 10%; and overseas 15%. AustLII has an impressive number of databases of statutes, regulations, court and administrative tribunal decisions, and law reform reports, and the user is able to search across all of these databases at once, or to select a more limited number of databases to search. AustLII's databases include every Federal Court and every State Supreme Court in Australia and legislation from all Australian jurisdictions except Tasmania (and even there is appears likely that once some technical issues are resolved, AustLII will host the Tasmanian legislation). Thus, AustLII has, in effect, completed an Australian "National Collection" of legislation and key case-law, and made it all available to the public for free. AustLII also has case law from another 20 or so lesser Courts and Tribunals. AustLII has approximately 70 databases at the moment and adds a new one every 2-3 weeks (as at the time of writing). (45) The Australian High Court full text decisions that are published go back to 1947--more than forty years longer than Canada's Supreme Court published electronic decisions. AustLII believes it serves a very valuable role in carrying the decisions of increasing numbers of specialist tribunals, which might have narrowly defined mandates and might be of interest to a limited number of people, but the value of publishing these materials is increased because these materials are sometimes not available elsewhere (compared to the decisions of major courts). In raw numbers, AustLII has more than half a million sections of legislation, more than 65,000 cases, and over 3.2 gigabytes of information. When AustLII began, there was virtually nothing available for free on the Internet on Australian primary legal materials. AustLII believes that it is important to locate as much of the primary legal information on one site as possible to improve the ability to search that information. AustLII wrote its own search software, which it controls and which is free. AustLII is also concerned that public institutions that choose to publish on their own Web sites may cause harm to public access not only because it will create difficulties in searching across databases and different Web sites with different formatting, different search engines, etc., but also because public bodies might be tempted to deny others (e.g.: sites such as AustLII) the right to carry the data on the theory that the public body is already publishing it anyway, and the public bodies might be tempted to charge fees to access the data. AustLII's future strategy in relation to publishing secondary legal materials is to concentrate on:
AustLII is working on Project DIAL (Development of the Internet for Asian Law), which is a project for the Asian Development Bank. One part of the DIAL Project is the World Law Search. About 7 GB of targeted sites have been indexed to date, providing searches to approximately 50,000 law-related pages on the Internet. The various sites are divided into "libraries." One is a legislation library to make it easier to find for legislative drafters to find legislative models from other jurisdictions. Another is a "law indexes" library to find more detailed information about the laws in a particular country. Other libraries to be created include Law Reform, Law Journals, International Agreements, Courts and Case Law, Indigenous Law, Industrial Law, and Privacy Law. Project DIAL is considerably larger than the databases on AustLII described above and the size of the holdings is expected to quadruple during 1999. The Asian Development Bank has announced that it will support DIAL's development for the next 3 years, and this will result in a significant addition of resources to AustLII. Why was AustLII necessary? AustLII was considered necessary because there was no effective or affordable public access to legal information (this seems to imply that library access was not considered effective); there was a lack of competition in the provision of commercial products (note the comments earlier about the lack of competition for commercial legal products in North America); and the commercial products that existed were largely the repackaging of primary legal materials with relatively little value added by commercial publishers, but with high prices. Arguably, this same state of affairs exists in Canada today. The founders of AustLII wanted to achieve a number of objectives:
In seeking data from public bodies, AustLII argues that there are six principles for the effective provision of public information from the public bodies who are the original sources of the information. Those public bodies should provide their information:
In addition to the information available at AustLII, the Tasmanian government began a Legislation System Project in 1994, followed by the Legislation Publication Act of 1996, followed by implementation of a software system called EnAct on December 1, 1997. The core of the system is an SGML (Standard Generalised Markup Language) database of the legislation. The information at the Tasmanian Web site explains: All legislation in the database is broken up into a number of fragments (ie. one fragment per Section or Schedule). Each fragment contains the dates for which that piece of legislation is in force. When legislation is amended, the system automatically builds new versions of fragments which are affected by amendments and keeps the old ones for historical reference. Consolidations are generated by joining together the fragments at a relevant point-in-time. ... When exploring the EnAct database, legislation searches are conducted at today's date or at a date you specify. This allows topics of interest to be researched through time to see how the law has changed. [This "point in time" access dates back only to February 1997.] As the legislation history builds, it will allow the accurate state of the law to be determined at the time an offence is committed, even if the relevant legislation has been amended several times since. ... [T]he translation of SGML structures into HTML [HyperText Markup Language, the standard used for pages on the World Wide Web] is a trivial task. The system allows the public to access consolidated Tasmanian legislation on the Internet, with all of the advantages of electronic searching, and includes an agreement with the Printing Authority of Tasmania for a hard copy publishing and distribution service and agreements with private publishers to enable them to use copies of the database to publish value-added legislation products. The federal (Commonwealth) statutes of Australian are updated nightly. In New South Wales, Australia, a Sentencing Information System was launched in 1990 that provides several databases to sentencing judges. They contain the statutory provisions laying out the range of dispositions and factors to be considered, appellate decisions dealing with sentencing, information on the availability of special facilities or personnel that might be relevant to choice of sentence (e.g.: different treatment programs, non-incarceral options), and another database that holds sentencing decisions made by sentencing officers, along with reasonably full offense and offender information, with effective statistical analysis tools and graphic display. (46) If the Australians can publish their laws electronically to this extent--and AustLII has been around for a number of years now--why is Canada unable or unwilling to provide its citizens with similar access to Canadian laws? State of Access to Electronic Law for Free in Canada Today It must be stated that Canadian governments and some Canadian courts have dramatically increased free electronic access to the laws in Canada over the past five years. While the purpose of this article is to argue that more can and should be done, those successes should be acknowledged and congratulated. The Centre de recherche en droit public (CDRP) at the Université de Montréal was one of the first sites on the Internet to publish primary legal materials, starting in 1993, 18 months earlier than AustLII. CDRP is one of the founding members of the International Association of Public Legal Information Institutes. The CDRP published the Supreme Court of Canada decisions, was involved in developing the Canadian Judicial Council recommendations for standard judicial citation, published the first legal materials in a language other than English, were the first to use SGML (Standard Generalized Markup Language--here is more information they wrote on the subject) as their standard format, developed the first centre for mediation and arbitration using the Internet (the Cybertribunal), publishes a cyberspace law guide called Lex electronica, and has been publishing the Université de Montréal law journal Thémis on the Internet since 1993. CDRP has a number of areas of study, and its work on electronic access to the law now operates under the name LexUM. In addition to being responsible for the continuation of the above activites, LexUM is becoming involved in other electronic access to the law projects. For example, it will soon be hosting Juris International, a collaborative project with the University of Nancy in France and the International Trade Centre (operated jointly by the World Trade Organizaiton and the United Nations Conference on Trade and Development) in Geneva. LexUM will soon be publishing a series of Canadian-American treaties. LexUM will also soon be hosting the Commission for Environmental Cooperation. The Commission describes itself as "an international organization whose members include Canada, Mexico and the United States. The CEC was created under the North American Agreement for Environmental Cooperation (NAAEC) to address regional environmental concerns, help prevent potential trade and environmental conflicts and to promote the effective enforcement of environmental law. The Agreement complements the environmental provisions established in the North American Free Trade Agreement (NAFTA)." The Commission publishes information about environmental laws in Canada, the United States and Mexico in three languages (English, French and Spanish). LexUM also operates a number of original electronic mailing lists. Obiter is the first and so far only mailing list for French language discussions on the law and new technologies. Espacedroit gives young francophone law students a place to publish their papers. La Magistrature de la francophonie provides a discussion forum for francophone judges. LexUM is also engaged in a variety of research projects relating to electronic access to the law. For example, it published a report on "SGML and Law on the Infohighways," a study undertaken between 1995-97. LexUM is now involved in a study of expert systems relating to the law. The federal Department of Justice has invested considerable resources into the Access to Justice Network (ACJ Net). ACJ Net, which in turn has devoted considerable efforts in producing a collection of Canadian legal materials for free on the Internet. ACJ Net has a page that allows you to search for legal information that is available on its various databases. The Canadian federal government has published the federal statutes since 1995 and the regulations since 1996 on the Internet, at no charge in both English and French. (It should be noted that there are two notable exceptions: the Income Tax Act---the federal government does not publish a consolidated Income Tax Act in any format, and the Customs Tariff, an extremely detailed schedule of goods and the tariffs associated with different kinds of goods, which is likely to be published electronically by the government soon). The Canada Gazette is on the Internet. The gazette includes various types of official notices, including notices of intent to adopt regulations (with explanations of those regulations) and the regulations once adopted, as well as notices of when a law is proclaimed and comes into force. The Canadian Parliament has a terrific Web site with an impressive collection of information, including bills before Parliament, and various Parliamentary reports and transcripts (Hansard). Public Works and Government Services Canada has posted a Guide to Bills, Statutes and Regulations, written by Moira Russell, Documents Specialist at Brock University (1997); "How a Government Bill becomes Law--Canada," by Inba Kehoe, Stauffer Library, Queen's University, and "Finding and Using Canadian Parliamentary Information," by Vivienne Monty, York University. In addition, the federal government has adopted the Reproduction of Federal Law Order, which gives anyone permission to reproduce the laws electronically without having to ask permission of the federal government and without having to pay any fees. Other provinces and territories have also made their statutes available on the Internet, and the best collection of these sites is at the Access to Justice Network. Here is a summary of what is available:
A small but growing number of municipalities are placing their most frequently used by-laws (and in some cases, all of their by-laws) on the Internet. The Supreme Court of Canada began publishing its court decisions on the Internet in 1994, in collaboration with the Centre de recherche en droit public at the Université de Montréal. All Supreme Court decisions from 1989 and all Supreme Court decisions relating to the Charter of Rights and Freedoms are available; these date back to 1984 (however, the two databases are separate and must be searched separately). The Supreme Court decisions were the very first Canadian legal texts on the Internet and the Université de Montréal site was one of the first five on the Internet in Canada. The Federal Court of Canada began publishing its decisions on the Internet in 1996 and decisions dating back to 1993 have been added. It must be noted that the Federal Court is responsible for publishing its own decisions. Far fewer cases are published on paper than are published on the Internet (approximately 400 on paper compared to 2,000 in electronic form: this is clear evidence that Internet distribution greatly expands access to the law, at least as far as the Federal Court decisions are concerned). Only a handful of Canada's numerous other courts and administrative tribunals have started publishing their decisions on the Internet (British Columbia superior courts are in the vanguard in Canada). The Ontario Court of Appeal has just started publishing its judgments for free on the Internet. Some other courts are preparing to publish for free on the Internet. Administrative tribunals that are online at the time of writing include:
The Canadian Employment Insurance Commission has recently made available a
database of jurisprudence relating to employment insurance. This includes approximately 43,000 decisions of umpires (Canadian Umpire Benefits), 1,000 Federal Court decisions, and 20 Supreme Court decisions. It can be expected that an increasing number of Canadian tribunals will present similar databases in the future. There are two major commercial distributors of electronic Canadian judgments: QuickLaw and SOQUIJ (discussed earlier). These offer expensive and reasonably comprehensive access to Canadian decisions (for example, QuickLaw does not offer all provincial legislation and does not have the decisions of all administrative tribunals). SOQUIJ offers its database free of charge to Quebec lawyers, but not to the public. Aside from the raw text of the laws, there are many more examples of secondary legal materials on the Internet. These works can be divided into two categories. First, various Departments of Justice in Canada publish a variety of legal materials. For example, the federal Department of Justice publishes on its World Wide Web site an Annotated Access to Information Act and an Annotated Privacy Act. This is an example of a government department publishing the text of the law together with brief summaries and citations of the court cases that have interpreted specific provisions of the law. The federal Department of Justice also publishes a summary of court cases that have interpreted the Canadian Charter of Rights and Freedoms. The federal Department of Justice has just published on paper the Annotated Language Laws of Canada, a new annotation of laws in Canada focused on the numerous laws in Canada that provide various linguistic rights. It remains to be seen whether this will be published on the Internet. The province of Ontario publishes an electronic summary of court cases that have interpreted Ontario's Freedom of Information and Protection of Personal Information Act and an annotation of the Information and Privacy Commission's Orders. The B.C. government publishes a summary of the Information and Privacy Commissioner's orders together with a statement of the policy implications that the orders have for the government. It should be emphasized that publishing the policy implications of Commissioner's Orders is a truly exceptional example of open government. I am not aware of any other jurisdiction that publishes its understanding of the policy implications of tribunal decisions. The Department of Foreign Affairs and International Trade publishes Canada's trade agreements (and related associations) on the Internet for free. The Department of Foreign Affairs and International Trade publishes a good collection of international human rights treaties and the Human Rights Directorate at the Department of Canadian Heritage publishes human rights treaties that Canada has ratified (also publishing the year that Canada ratified). JURIST Canada is part of an international collection of "JURIST" sites. JURIST Canada describes itself as JURIST Canada is a clearinghouse of academically-authored and other quality-controlled Canadian legal resources provided for the convenience of Canadian law teachers, law students, lawyers and members of the public. It is hosted at the Bora Laskin Law Library at the University of Toronto Faculty of Law. Aside from its academic articles (many Canadian law journals has published their back issues on the Internet), JURIST Canada is an excellent place to get a daily update on major legal decisions in Canada. In addition, a wide variety of Canadian associations publish information on the Internet and operate electronic mailing lists on law-related topics. The above is the state of free electronic access to Canadian law at the time of writing: some very significant successes, but a patchy scene with a number of gaps. Six years after having begun publishing on the Internet, Canada's laws are less available on the Internet than is the case in the United States and Australia. This is somewhat surprising considering that Canada prides itself on being one of the most networked countries in the world, with an extraordinarily high percentage of citizens with access to telephones, and the proportion of Canadians with access to the Internet is one of the highest in the world. In the past two years, the Canadian government has placed considerable emphasis on developing electronic commerce and making Canada one of the wired countries in the world. The places that produce the laws--the courts and legislatures--are all entirely computerized and there is good collaboration in using common electronic publishing standards. How then, can we explain why Canada appears to have fallen behind our counterparts in the United States and Australia in publishing the laws in electronic formats? Certainly government insistence on asserting Crown copyright, perhaps in hopes that selling the laws would be a good way to recover costs, has been one factor. Secondly, Canadian law schools have not found the funding to develop and host Canadian primary law materials that law schools in the United States and Australia have found. To the best of my knowledge, there has never been a direct grant to a Canadian university from any organization or government for the purpose of publishing Canadian laws. The complexity of Canada's legal system--its division of powers, decentralized federation and bilingual and bi-juridical systems--has been another factor that may have delayed the widespread publication of Canadian laws. Finally, every time a court, tribunal or government decides to publish its laws, it generally decides to do so on its own Web site. This makes it more difficult to search across different legal databases, creates a disparity in the technical formats being used, and duplicates efforts. It is likely that considerable savings and considerable searching advantages could be realized if there were a single agency that had the mandate to publish the laws and judicial decisions in Canada. Dream Big: Access to the Law Can Mean More than Access to the Raw Legal Texts There is a lot more to law that the raw text. The legislative history of a provision is very important to ascertaining why certain changes were made, and simply to understand the history of Canada at different times. Knowing how specific words in a law were interpreted by the courts or administrative tribunals is essential to understanding what a law requires or allows. Having access to the Royal Commission reports, government studies, Parliamentary Committee hearing transcripts and reports, and the Parliamentary debates are all extremely valuable tools for understanding the intent of the law-makers. From a broader perspective, access to the law means access to bills and proposed regulations before they are adopted, so that the public has adequate time to study and comment on the proposed laws. Access to the law might also be interpreted as including access to information about who voted for the law, so that the public can better assess the performance of its elected representatives. In fact, a truly broad understanding of "access to the law" could extend to access to any information that is relevant to understanding how laws are made generally, the performance of law-makers in a variety of ways (attendance, how they voted, campaign contributions and expenditures, and other information that might be required relating to conflict of interest--e.g.: assets and corporate directorships and relationships with or approaches made by lobbyists). Much of this type of information is already routinely disclosed on the Internet about members of the U.S. Congress. A broad interpretation of access to the law might extend to all elements relevant to assessing the extent to which the electoral process is functioning to provide the most democratic results possible (this could include access to historical voting results; financing, contributions and spending of political parties and third parties who attempt to influence elections without running candidates; comparison of popular vote percentages with percentages of seats won; information about different kinds of electoral systems around the world; etc.). Access to the law might also include public electronic access to any notices given to the government of constitutional questions and electronic posting of factums (especially in constitutional, human rights, aboriginal rights, privacy, and freedom of information cases; see, for example, the kinds of legal documents posted by the U.S. Department of Justice). This would enable non-profit groups and plaintiffs to share information (and reduce costs) on related litigation. Principles of access could include government-supported bulletin boards and electronic mailing lists to provide information to the public about which groups or individuals are actively involved in studying or providing comments on different legislative proposals or who are involved in any given litigation (especially in constitutional, human rights, aboriginal rights, privacy and freedom of information cases), or any litigation that seems likely to lead to a class action. See, as an example of this kind of consolidation, the "MDL 1203" Web site ("MDL" means "Multidistrict Litigation"; "1203" means Action No. 1203 In Re: Diet Drugs). MDL 1203 consolidates for pre-trial purposes all federal litigation relating to use of the drugs phentermine, fenfluramine, and dexfenflurmine. At this web site, it is possible to obtain docket entries for every filing made in MDL 1203, the text of all documents filed by the Court and the Special Master, and the text of all attorney-filed documents that relate to 100 or more individual MDL 1203 actions. Peter Martin, of Cornell University's benchmark Legal Information Institute, has written important papers on the future of digital law: "Pre-digital law: how prior information technologies have shaped access to and the nature of law" and "Digital Law: Some Speculations on the Future of Legal Technology." Among his main points in the former paper, Martin includes: "there is a powerful (but infrequently noticed) linkage between ways societies think about law and the technology they use in the operation and distribution of [law]. . . . Through the pre-digital history of this field there has been a recurring focus on the related themes of access and communication." (50) Ethan Katsh has observed that the legal system we now know as "case law" did not develop until the arrival of the printing press. It seems obvious in hindsight that the system of law would be affected in a dramatic way by the arrival of literacy, then by improvements in writing materials, then by the arrival of the printing press and now by the arrival of computers. Computer networks radically alter our perception of borders, distance, time, and separation between different fields of thought. Thus, it can be expected that electronic tools will dramatically change our perception and use of laws. Martin predicts that digital law will make it possible for laws to use colour and sounds for the first time (which will be particularly useful for trademark and copyright judgments, so that a court case can display the competing trademarks or play alleged infringement of certain copyrighted songs, for example). Laws and court decisions will increasingly include diagrams, flow-charts, photographs, and jump links (for example, wherever a defined term is used in a statute, there could be a jump link to the definition of that term; wherever there is a reference to another section or another document, there could be a jump link to the referenced material; wherever a court case cites a precedent decision or a specific statutory decision, there could be a jump link to the referenced material). It is even possible that laws such as the Income Tax Act might include, as part of the legislative "text," software. Imagine an Income Tax Act that provides the choice: you are required to prepare your tax return using the following three hundred pages of detailed rules and formulae, or you may prepare your tax return using this software prepared by Revenue Canada. Double-click here. Imagine that the income tax return itself is published as part of the Income Tax Act, rather than the government mailing it to you or you picking it up at the post office. Regulations would permanently have jump links to their original "Regulation Impact Assessment Statement" (the federal RIAS requirement); statutes could have permanent jump links to the Parliamentary Committee report (or Royal Commission report) that preceded a specific proposal. There would also be jump links to the relevant Hansard transcripts, including presentations by interested parties to the Parliamentary Committee that studied the law. Imagine databases of sentencing decisions. There could be a database of sentences for specific criminal offences, complete with a list of the relevant factors associated with the offence. Another database could compile a similar list of damage awards for car accidents, workplace accidents, marital and child support orders, and so on. These databases would be searchable by judge, so that the judge's consistency and tendencies could be assessed over time. Could anything better protect a person's equality before the law? Governments can also provide more secondary legal information. I believe law on the Internet will result in public demand for laws that are easier to understand (plain language drafting) and for more legal information from official sources. For one example of this, visit the Australian Capital Territory's World Wide Web site (the "ACT" is the rough equivalent of Canada's National Capital Region). At the site you will find:
The ACT government is also developing "artificial intelligence" to improve public understanding of the laws. The Web site suggests that this is "perhaps the first example of online law built around web rather than paper technology." The development of different technologies having real legal applications is a new development. The development of inference machines (or expert legal systems) is still in its infancy, but it may herald a new era in access to the law. Expert legal systems are computer programs which allow people to query legislation or case law with a minimum of legal training. They are quite different from text retrieval systems. A number of prototype systems have been developed by the ACT Attorney General's Department under the Legislation Review Program. Each of these prototypes work in a similar way: a person (who may have no knowledge of the law) is asked a series of questions by the computer which exhausts all logical options and provides both a legal conclusion and reasons for the conclusion. The first prototype system is a rules based system which depends on careful construction of a series of rules by an expert in a field and which are then organized by a computer program. This prototype may be used in the near future to model complex common law areas as an aid to reform processes. The second prototype system, in early stages of development, is an inference machine which scans in the text of legislation and constructs a series of legal propositions using deontic rules. A third prototype, an amalgam of the first two, seeks feedback from the success or failure of action taken as a result of the advice and can learn from this feedback. At the site, there are two experimental systems, one for negligence and the other for domestic violence. The ACT also places standard forms online. These forms include statutory declarations, powers of attorney, and articles of incorporation. These developments may be examples of where access to the law will head after the laws are fully online and searchable. AustLII also believes that legal inferencing systems (another way to describe "artificial intelligence" systems) can be developed to provide individual advice on the availability of government benefits; advice on individual requirements for obtaining licenses and permits; interactive "interviews" to help individuals fill out legally-oriented application forms; and interactive creation of customized legal documents. One of AustLII's roles is to conduct research into legal inferencing systems. Also at AustLII, any user viewing a specific section of an Act or Regulation can select the Noteup option, which triggers a search over all case law, legislation, and secondary materials in AustLII's databases that make reference to that section. This is a pre-stored search, and users do not have create a new search query on their own. AustLII is developing new and improved ways to index and search for legal information on the Internet. This involves developing search robots that find and index only sites that contain legal information. This is sometimes known as a "Limited Area Search Engine." JURIST was launched in January 1998 and searches only the home pages of law professors and the course pages of the law subjects. A similar approach has been undertaken in New Zealand, where an Internet provider called Knowledge Basket related Legal Search New Zealand in December 1997 to search 25 New Zealand law sites. AustLII's World Law Index includes a "Translate" button that takes the user to Alta Vista's automated translation service provided by Systran translation software (presently limited to English to French, Spanish, Portugese, Italian or German, and vice-versa). The user chooses the languages to be translated, and the software provides the translation of the Web page to be translated. (It is not recommended to use the software to translate actual legal texts.) Aside from posting actual text, another way that government can experiment with improving access to the law is with the use of "virtual" courtrooms and virtual magistrates. The United Kingdom government has just published a paper on this topic inviting public comment. (51) In addition to efforts to improve access to the law by governments, groups across Canada that share interests in certain subject matters can and should create sites on the World Wide Web that would collect key law cases and key statutory provisions on that subject matter, list the various organizations actively involved in the subject matter, and provide jump links to the different cases, studies, statutes, regulations, and the Web sites of the different organizations. The like-minded groups should create electronic mailing lists that would enable them to communicate information about new developments in their field as they arise (i.e.: if an important case is being launched in one province, the electronic mailing list could make this fact known to like-minded groups in other provinces almost instantly). In this way, interest groups can take responsibility for improving their own access to the law beyond the access that could result from governmental efforts. (A good example of an interest group providing this kind of improved access to the law is the Electronic Frontier Canada, and its list of court decisions--with jump links to relevant Criminal Code provisions--on subject matters of interest to that organization, such as censorship and freedom of expression.) It goes without saying that the work of non-governmental organizations depends to a large extent on access to primary legal materials. A policy of maximizing free access to the law on the Internet would provide a powerful assistance to innumerable groups who work with vulnerable or marginalized members of society depends to a large extent. Another way to improve access to the law is being developed by private publishers who create "how-to" books, and more recently, software with standard forms that help people prepare their own wills and do other relatively simple legal proceedings without consulting a lawyer. (52) Numerous private law firms have created Internet sites that include legal newsletters and other information that gives free legal information to readers. Digital law can make the law dramatically more accessible to lawyers (and thus reduce bills to clients), to law-makers, voters, taxpayers, parties engaged in international and interprovincial trade, advocacy groups, persons in civil and family law disputes, and accused persons. Digital law can make law-makers and judges more accountable. Digital law can lead to more consistent and more equal application of the laws. Digital law can lead to higher quality decision-making by making it more likely that all relevant precedent decisions are found and are available for argument. These are dramatic benefits, but these benefits do not generate revenues for the government. Improving the legal and law-making system, as always, requires expenditure of public funds. A Ten-point Dream for Electronic Access to the Law Drawing from the above, it is possible to imagine a scenario of improving access to the law that could include the following elements. It is crucial to emphasize that it is not necessary to proceed on all elements at once, and the inability or expense of proceeding on some of these elements should not be used as an excuse not to proceed at all.
Finally, all of the above should be available at a single site for each jurisdiction, and again at a single site for all Canadian jurisdictions. There should also be a consistent approach to electronic access and copyright between the various Canadian jurisdictions. The above is a wish list. (55) The costs of achieving the above should not be astronomical, especially when compared with the overall costs of supporting legislatures and the courts. For the most part, none of the above suggestions require new or unproven technologies. Virtually all of the above suggestions have been developed and implemented with success somewhere else already. While the costs should not be prohibitive, there is a legitimate question about coordination and sharing of costs between federal, provincial and municipal governments, and courts and administrative tribunals. It may be that Law Foundations, Law Schools, and Law Societies might also contribute funds, expertise, computers, or labour to the above efforts. These coordination issues are not so complex that they should result in paralysis. In this article, I have not attempted to set out an action plan for implementing the above dream for electronic access to the law. That will come later. The first order of business is to explain the dream. The second order of business is to get others to share the dream and help create the impetus that will catch governments' and courts' attention. After that, an action plan will have to be developed and resources found. Until these things happen, Canadians will continue to watch Australians and Americans have significantly better electronic access to their laws than we do to ours. Finally, it should be remembered that while we might be lagging behind the Australians and the Americans, we are doing well compared to most other countries. There are a number of jurisdictions in Canada that have made their electronic statutes, regulations, bills, and Hansard accessible to the public for free. A number of municipalities are putting their by-laws on the Internet. The Supreme Court of Canada, the Federal Court of Canada, and the B.C. superior courts are putting their court decisions on the Internet, as are a small but growing number of administrative tribunals. Canadian law schools are developing impressive Canadian legal resource sites. Governments, universities, schools, and libraries are undertaking a variety of steps that makes access to the Internet more available to the Canadian public. Leading examples include Industry Canada's School Net and various Freenets across Canada. In addition, our politicians are recognizing the usefulness of access to the law on the Internet. In a recent speech to the Forum on the Internet and Human Rights, Foreign Affairs Minister Lloyd Axworthy said: The Internet can be a powerful tool for human rights. Where human rights organizers once spent time clipping newspaper articles and organizing phone trees, now communication can be instantaneous and universal. International human-rights standards can be made available to children around the world in order to help foster a global culture of human rights. Through the Net, governments can work in partnership with non-governmental organizations to provide human-rights expertise and technical assistance. In this way, the Internet can work to close the gap between international human-rights standards and practice on the ground. As a result, the old adage that says, "The pen is mightier than the sword" can perhaps be updated for the 20th century to read, "The mouse is mightier than the missile." (56) It is extremely unlikely that any jurisdiction that has published its laws on the Internet for free will ever stop doing so, and it is very clear that the trend is for all jurisdictions to improve free electronic access to the law--the above wish list may simply be a matter of time. Thus, while we may have dreams for better access, the reality is that the train has left the station and it is moving in the right direction, although some of us would like to see the train pick up a little speed.
Notes
[1] May be cited as/On peut citer comme suit:
Tom McMahon. "Improving Access to the Law in Canada With Digital Media" Government Information in Canada/Information gouvernementale au Canada No. 16 (March 1999).
[http://www.usask.ca/library/gic/16/mcmahon.html] Tom McMahon is author of "Access to Government Information: A New
Instrument for Public Accountability," published in Government
Information in Canada/Information gouvernementale au Canada, 3, no. 1
(1996).
http://www.usask.ca/library/gic/v3n1/mcmahon/mcmahon.html
[3] This anecdote is taken from the opening of Daniel Poulin's paper: "Le monde canadien de l'information juridique: du recueil au Web," prepared for the international conference of the Association pour le développement de l'informatique juridique in Paris, October 1998. I would like to acknowledge Daniel's ground-breaking work in developing electronic access to the law in Canada and for his comments for this paper. [4] An important source of information for my article was Law Reporting and Legal Publishing in Canada: A History, ed. Martha Foote (Canadian Association of Law Libraries, 1997) and in particular the chapters by Neil Campbell, Vivienne Denton, Guy Tanguay and Daniel Boyer, Jules Lariviere, and John N. Davis. [5] See, for example, Lon Fuller, The Morality of Law (London: Yale University Press, 1964). Fuller says that there are eight different ways to fail to make law: (1) "a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis. . . . (2) a failure to publicize, or at least to make available to the affected party, the rules he is expected to observe; (3) the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change; (4) a failure to make rules understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules that the subject cannot orient his action by them; and, finally, (8) a failure of congruence between the rules as announced and their actual administration.
[6] Webster's New Collegiate Dictionary, 1974. [7] It is interesting to note that the earliest law book ever printed in England, Littleton's Tenures (printed in 1481 or 1482, and intended as a teaching tool for Littleton's son, and not for general consumption) was written in Law French, not in English. The next leading law book was the first volume of Sir Edward Coke's Institutes. Volume I was "Coke on Littleton." Coke's preface explains why he translated Littleton and presented his own commentary in English--namely, that "the nobility and gentry of the realm . . . may understand . . . seeing that ignorance of the law is no excuse." Quoted from Peter Martin, "Pre-digital law: how prior information technologies have shaped access to and the nature of law." [8] The common law presumption that laws do not apply retroactively is one way that the law ensures that people have a reasonable opportunity to know what the law is before it will be applied to them. Further, the common law doctrine of "officially induced error" provides some limited remedies where a person has broken a law despite attempting to ascertain what the law required and reasonably relying on advice provided by the official. There have been court cases that held that legislation cannot incorporate documents by reference unless those documents are available to the person affected by the documents. [9] See also s. 55 of the Constitution Act, 1982, which requires that a French version of the Constitution of Canada be prepared by the federal Minister of Justice "as expeditiously as possible" and put forward for enactment. Issues and court cases relating to this section are discussed in a paper by Warren Newman, "The Duty to Prepare and Put Forward for Enactment the French-Language Version of Certain Constitutional Instruments: From the Bertrand case to the Langlois case," presented to the National Symposium on Canada's Official Languages, Sept. 16-18, 1998.
[10] Leading cases on "vagueness" include R. v. Zundel (1992), 2 S.C.R. 731 and R. v. Nova Scotia Pharmaceutical Society (1992), 2 S.C.R. 606. where the Court suggested in obiter that fair notice under s. 7 of the Charter might, in some circumstances, require more than formal notice through publication in official publications such as the Canada Gazette. [11] The first case to expressly state this is R. v. Collins (1987), 1 S.C.R. 265, although the principle seems implicit in the earlier landmark decision Hunter v. Southam (1984), 2 S.C.R. 145. In the criminal law context, the "lawful authority" will usually require a judicial warrant issued pursuant to procedures enacted and published in the Criminal Code (the Canadian Security Intelligence Service Act sets out different warrant requirements for searches by CSIS agents). In the regulatory context, the search authority will normally be enacted and published in the regulatory statute relating to the subject matter at hand. [12] See Sunday Times v. United Kingdom (1979), 2 E.H.R.R. 245 and Silver v. United Kingdom (1983), 5 E.H.R.R. 347. [13] Re Eurig Estate (1998), S.C.J. 72. Major J. added at para. 40: ". . . Section 53 constitutionally mandates the court to strictly construct enabling legislation, such as s. 5 of the Administration of Justice Act, when determining whether it properly creates a taxation power. This simply strengthens the general principle of interpretation that '[i]f Parliament wants to give the Executive or some administrative agency the power to raise a tax by regulation, it must do so in a specific and unequivocal provision' (R. Dussault and L. Borgeat, Administrative Law: A Treatise vol. 1 [2nd ed. 1985], p. 445)." (paragraphs 30 and 40, per Major J.) [14] For example, Annex B of the SPS Agreement provides:
[15] An Act Providing for the publication of reports of the decisions of His Majesty's Court of King's Bench in this Province, Statutes of Upper Canada, 4 Geo.IV, c. 3. [16] An Act to Provide for Reporting and Publishing the Decisions of the Supreme Court, S.N.B. 1836, c. 14. "[I]t shall be the duty of such reporter by his personal attendance or by any other means in his power, to obtain true and authentic reports of such opinions, decisions and judgments; and such reporter shall publish not less than two hundred copies of the same in pamphlets after each term of the said Court." [17] An Act to Assign Fixed Annual Salaries to Certain Officers of Justice in Lower Canada and to Form a Special Fund out of the Salaries, Fees, Emoluments and Pecuniary Profits Attached to their Offices, ss. 13 and 15. [18] Jules Larivière reported that it appeared that no other court in Canada or Great Britain was subject to a similar legislative requirement. Jules Larivière, "Law Reporting at the Canadian Federal Level: An Historical Overview," 1995 Canadian Law Libraries/Bibliothèque de droit canadiennes, Vol. 20, No. 2, p. 53 at 54. [19] The judge came to the view that SOQUIJ does not perform "governmental" functions and therefore the Canadian Charter of Rights and Freedoms does not apply in any event, even though SOQUIJ is created by statute, the statute ensures that civil servants are part of its Board of Directors, SOQUIJ is involved in selecting and publishing court decisions, and any profits that SOQUIJ makes goes to the provincial treasury. [20] A.G. of Nova Scotia v. MacIntyre (1982), 132 D.L.R. (3d) 401. [21] See s. 26 and 142 of the federal Corrections and Conditional Release Act for statutory requirement to provide information to a victim upon written request from the victim. B.C., Alberta, Saskatchewan, Manitoba, Nova Scotia, and the U.S. federal government have all announced new policies or laws (Saskatchewan has a Public Disclosure Act. All jurisdictions in the United States have adopted some version of a "Megan's Law," aimed at requiring sex or child abuse offenders to register with local authorities when they enter that jurisdiciton and making it easier to disclose information about persons convicted of criminal offences, especially those who may soon be released from prison.)
[22] The early history of printing the statutes in the United Kingdom is reported this way by Campbell, Enid, Lee Poh-York, and Joycey Tooher, Legal Research Materials and Methods, 4th ed. (LBC Information Services 1996), at 216:
[23] www.gov.on.ca/MBS/english/publications/statregs/contents.html: "The legislative materials on this site are owned by the Government of Ontario and protected by copyright law. They may be used for personal or in-house use, but not for redistribution or resale to third parties. To request permission for redistribution or resale rights, contact the Senior Copyright Analyst, Publications Ontario . . ." [24] www.gov.ab.ca/qp:
[25] www.gov.nb.ca/justice/discla-e.htm: "The Province of New Brunswick, through the Queen's Printer, owns and retains the copyright for New Brunswick acts and regulations including consolidations. All rights are reserved and any form of reproduction is accordingly restricted." [26] This notice appears above individual statutes: "All material copyright of the Government of Newfoundland and Labrador. No unauthorized copying or redeployment permitted. The Government assumes no responsibility for the accuracy of any material deployed on an unauthorized server." [27] www.gov.ns.ca/legi/legc/sol.htm (This notice appears above the statutes): "These electronic versions of the statutes are provided for your convenience and personal use only and may not be copied for the purpose of resale in this or any other form. Formatting of these electronic versions may differ from the official, printed versions. Where accuracy is critical, please consult official sources." [28] www.doc.gouv.qc.ca/html/lois_consult2.html: "Ce document a été élaboré par L'ÉDITEUR OFFICIEL DU QUÉBEC et GAUDET ÉDITEUR LTÉE. La gestion des droits d'auteur afférents aux Lois et règlements du Québec est effectuée par LES PUBLICATIONS DU QUÉBEC." [29] legis.acjnet.org/ACJNet/TNO/copyright_en.html: "The legislative material in the consolidations may be used for a non-commercial purpose without seeking permission, provided that it is accurately reproduced and includes an acknowledgement of the Government of the Northwest Territories as its source. Reproduction of the legislative material is permitted, in whole or in part, and by any means." [30] www.qp.justice.gov.sk.ca: "Copyright and all other intellectual property rights of the publications of the Saskatchewan Office of the Queen's Printer, including all material on this website, belong exclusively to Her Majesty the Queen in Right of Saskatchewan as represented by The Queen's Printer, Saskatchewan Justice. No person may copy, transfer, print, electronically distribute or otherwise use this material except in accordance with the Subscription Agreement or with the express written consent of the Queen's Printer." [31] It should be noted that the question of whether the requester or the government has the right to choose the format is relevant to all kinds of information requested under freedom of information and privacy laws, and to prosecution disclosures to accused persons required by s. 7 of the Charter of Rights and Freedoms. The case law appears to be at a preliminary stage in its evolution.
[32] By no means have I conducted a comprehensive search of how different states deal with access to the electronic version of the laws. However, as discussed below, in California it is a statutory requirement to publish the law on the Internet. In Kentucky, there are specific laws requiring institutions to disclose electronic records. In Mississippi, the Attorney General issued an official opinion dated 14 August 1995 that the statutes in electronic form did not need to be produced in electronic form because such a disclosure would be a significant intrusion into the business of a public body (a specific exemption in Mississippi's Public Records Act) and because such a requirement appears to exempt the statutes from the Public Records Act. Section 1-1-1 of the Mississippi Code specifically provides that the state government may enter into and execute a contract with a competent company for the recodification and indexing of the statutory laws of the State of Mississippi and recompilation and indexing of the constitution of the state and of the United States. A number of other provisions in the Mississippi Code expand on how such a contract and such a publication of the laws is to be treated and includes a provision for how the laws are to be made public (by distribution to libraries and examination in person at the chancery clerk's office). Here, the disruption with the existing contracts would make the production of the computer tapes unreasonable. The opinion also relied on the cases of Dismukes and Baizer, discussed later in this article. [33] The case is Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 111 S.Ct. 1282 (1991). One decision that suggested that Feist effectively overruled Mead Data is U.S. v. The Thomson Corp., 949 F.Supp. 907 (D.D.D. 1996). [34] An argument that does not appear to have been raised in either the Canada Post or the JURIS case is the principle that a government department should not be able to contract out of access to information laws. If documents are under the departments control (regardless of what confidentiality clauses may be contained in a contract), then the test is to see if there are any exemptions under the Act that protect those documents. One available exemption is to protect confidential commercial information in certain circumstances. Whether this would protect the work done for JURIS would require a somewhat different analysis that the analysis concerning whether JURIS is under the control of the federal Department of Justice. [35] This reasoning relied on S.D.C. Development Corp. v. Matthews, 542 F.2d 1116 (9th Cir. 1976), another case decided on the basis that the database in question was not an agency record but was library reference material.
[36] This example is taken from Daniel Poulin's paper: "Le monde canadien de l'information juridique: du recueil au Web," prepared for the international conference of the Association pour le développement de l'informatique juridique in Paris, October 1998. I would like to acknowledge Daniel's ground-breaking work in developing electronic access to the law in Canada and for his comments for this paper. [37] Tele-Direct (Publications) Inc. v. American Business Information Inc., (F.C.A.) 1997-10-27. This decision is consistent with Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 111 S.Ct. 1282 (1991). [38] The trail of cases relating to copyright in West's page number is the following. In West Publishing v. Mead Data, 799 F.2d 1219 (8th Cir. 1986), cert. denied 479 U.S. 1070 (1987), the 8th Circuit Court of Appeals granted a preliminary injunction preventing Mead Data from using star pagination in order to protect West's copyright claim. Mead Data did not pursue the matter to a trial on the merits but instead entered into a confidential settlement with West.
[39] For discussions of similar standards in the U.S., see "The Centre for Information Law and Policy Whitepaper on Policy Governing Pennsylvania Citations," Russell Ventura, 23 April 1998, "Considerations When Placing Court Opinions on the Internet," Bradley Hillis, 4 June 1996. [40] For example, see John Morris, "How West Was Won," American Lawyer, Sept. 1996. The conditions imposed on Thomson were: it would have to divest itself of 51 products (50 books or series and the Auto-Cite online case history database); Thomson would agree to extend it licenses to its chief competitor Lexis-Nexis for Lexis-Nexis use and reference to Thomson materials; Thomson would grant licenses to other publishers to refer to Thomson's page numbers, using a standard form contract at capped rates. These conditions have been criticized because the titles to be divested are, for the most part, relatively insignificant and in a number of cases Thomson will simply be divesting itself of the less popular of two products that, before the merger, were competing, but after the merger, would have been both published by the same company. The conditions have also been criticized because the licenses for publishers other than Lexis-Nexis at the specified "capped" rates are likely to prove too high for small publishers to pay (and thus, the small publishers' greatest hopes lie in winning court declarations that West has no copyright in its page numbers). [41] Para. 4.5.2 in "The AustLII Papers--New Directions in Law via the Internet," 1197 (2) Journal of Information, Law and Technology (JILT). [42] For more information, see Thomas Bruce and Peter Martin, "The Legal Information Institute--1995-96 Activities and Future Plans." The statistics cited were provided to me by e-mail by Thomas Bruce, 21 December 1998. [43] Also in the Government Code of the California Codes (again, para. (b) is the key para.):
[44] See especially s. 15(3) of the Civil Air Navigation Services Commercialization Act:
[45] The numbers cited here were confirmed in an e-mail from Graham Greenleaf of AustLII to the author, dated 14 January 1999. [46] This system is described by Peter Martin in his 1995 paper, "Digital Law: Some Speculations on the Future of Legal Technology." [47] The laws are available online, although it seems evident that Quebec would prefer persons to purchase the laws. The site is not easy to find, is not very user-friendly, and contains this notice:
[48] The Tribunal is the federal agency that administers the Status of the Artist Act, which governs professional relations between self-employed entrepreneurs in the cultural sector and producers in the federal jurisdiction. [49] The Agency's 1997 Annual Report describes the Agency's role this way:
[50] This quotation is taken from "Digital Law: Some Speculations on the Future of Legal Technology," where Martin summarizes in the first few paragraphs his earlier paper "Pre-digital law: how prior information technologies have shaped access to and the nature of law." [51] The paper is described in an article in the London Times, Sept. 11, 1998, "Courts will sit in session on the Internet," by Frances Gibb.
[52] In the October 1995 edition of Worth magazine there is an article on the burgeoning new market of legal software in the U.S. ("Booting up your personal lawyer," by Mike France, p. 146). The software is priced between $10 and $70, with titles such as Do-it-Yourself Lawyer; Parson Technology's Quicken Family Lawyer; Cosmi's PC Attorney; Turbotax; and Legal Documents; Nolo Press' WillMaker; and Managing Your Money's Personal Attorney. The article points out that almost all of this software uses a question- and-answer format; that each has an online legal textbook; and that quality varies. However, the article makes a number of statements that emphasize that cyber-law is a trend to watch.
[53] Thomas Bruce of the Cornell Legal Information Institute, in an e-mail to me dated 21 December 1998, commented on the issue of consolidation saying that consolidation is not the point, standards are. He wrote: "One of the major developments brought about by the Net is simply that it has served to challenge the assumptions of a consolidated system in the US (an oligopoly, in fact) about functionality, user interface, appropriate technology, and so on. Why would we intentionally create another one? What we need is a consolidated standard--a set of DTDs for XML or SGML, core common functionality across sites and so on. You don't have to put everything under one roof to do that, and you probably shouldn't." [54] It is essential to understand that research into artificial intelligence or expert systems in the legal system is useful, but that there are very important issues concerning fairness, efficiency, quality of results, and systemic duplication of errors (and successes) that must be carefully analyzed. To properly analyze these issues, it is essential that the underlying assumptions and rules built into the system must be open to the public and subject to the "logic of the access to information legislation": Jacques Frémont, "Computerized Administrative Decision Making and Fundamental Rights," Osgoode Hall Law Journal 32 (1994): 817. [55] A more ambitious dream would incorporate some of the provisions noted earlier with respect to international trade agreements. Imagine a statutory requirement that government provide "points of inquiry" where any citizen can call, obtain answers to reasonable queries about the law and receive copies of the law, court decision or form they are seeking. Imagine a statutory requirement that laws do not come into force until the affected people have a reasonable amount of time to adapt to the new laws. Imagine a statutory requirement that laws be made available in such a way that makes them reasonably accessible and understandable to the persons to be affected by the laws. Imagine a statutory requirement to receive and discuss public comments and take them into consideration before adopting a new law. [56] As quoted in the Ottawa Citizen, 15 September 1998, p. A15 (the speech was delivered on Sept. 11, 1998). Canada could choose to become a leader in the nascent International Association of Public Legal Information Institutes, whose mandate is "to promote and support non-profit access to public legal information throughout the world, principally via the internet." The International Association currently includes the Australasian Legal Information Institute, the Centre de recherche en droit public at the Université de Montréal, and the Lovdata Foundation in Norway. The Cornell Legal Information Institute has been invited to join, and the Cornell LII has played a major role in developing the Zambian Legal Information Institute.
With Digital Media (1)
Crown Copyright
Access to the Electronic Copy of Statutes under Freedom of Information Laws
Privatizing the Law--Copyright for Private Publishers
Follow the Leader: the United States
Follow the Leader II: Australia
State of Access to the Law in Canada Today
[Note: this is a binding requirement to publish more than laws and regulations. It requires publication of procedures and administrative rulings "in such a manner as to enable interested persons and Parties to become acquainted with them."]
[Note that such a requirement, if applied to Canadian laws generally, would appear to make it next to impossible for Parliament to adopt legislation in a single day.]
[Note: just imagine if the government had a statutory obligation to provide information about its laws where citizens request that information.]
[Note: this is truly remarkable: a binding obligation to discuss comments received and take those comments and discussions into account. Note also that this provision is not limited to the Parties (the other governments) but extends to other "interested persons" as well.]
Administrator
Office of Information and Regulatory Affairs Office of Management and Budget
September 25, 1996
Hubbertz asks:
Given free access, the statutes and regulations could be made available online in schools and libraries throughout the province, and in every home or office with a computer and an Internet connection. Does anyone know of a cheaper or more cost-effective way to promote democracy?
The statute should provide that anything which an Act states must be published in the Canada Gazette, must be posted in a prominent place, or must be put into a public registry, must also be placed in a well-indexed place on the institution's Internet page. The statute should provide that the above information is in the public domain and anyone is free to copy and use the materials as they choose. (Much of the above information is already published for free on the Internet by various sources in the United States and Australia.) Of course, governments and courts should publish this information for free on the Internet whether or not a statute compels them to.
This point is worth emphasizing: it is not enough that each legislature, court and tribunal publish their own decisions for free on their own Internet site. It is extremely important that all of these databases either be prepared with standards or consolidated in one place so that they can be searched at one time. Moreover, if the governments, courts and tribunals could agree on a common publisher, they might reduce their electronic publishing costs. (53) However, if governments and courts do agree on a common publisher, they should not enter an "exclusive" arrangement that gives a limited number of publishers a monopoly on the law.
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President, Canadian Society for the Advancement of Legal Technology, and
Counsel
Department of Justice Canada
The views expressed here are the personal views of the author and are not to be attributed to the Department of Justice.
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A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all, except perhaps in the Pickwickian sense in which a void contract can still be said be one kind of contract. Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute (p. 39).
Even if only one man in a hundred takes the pains to inform himself concerning, say, the laws applicable to the practice of his calling, this is enough to justify the trouble taken to make the laws generally available. This citizen at least is entitled to know, and he cannot be identified in advance. Furthermore, in many activities men observe the law, not because they know it directly, but because they follow the pattern set by others whom they know to be better informed than themselves. In this way knowledge of the law by a few often influences indirectly the actions of many. The laws should also be given adequate publication so that they may be subject to public criticism, including the criticism that they are the kind of law that ought not to be enacted unless their content can be effectively conveyed to those subject to them. It is also plain that if the laws are not made readily available, there is no check against a disregard of them by those charged with their application and enforcement. Finally, the great bulk of modern laws relate to specific forms of activity, such as carrying on particular professions or businesses; it is therefore quite immaterial that they are not known to the average citizen. The requirement that laws be published does not rest on any such absurdity as an expectation that the dutiful citizen will sit down and read them all (p. 49).
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See also New Canadian Perspectives: Annotated Language Laws of Canada (Ottawa: Government of Canada, 1998).
Query whether the obligation to publish in both official languages can be satisfied by publishing both on paper but only one version in electronic format.
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TRANSPARENCY OF SANITARY AND PHYTOSANITARY REGULATIONS
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Publication of regulations
Enquiry points
Notification procedures
General reservations
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Manitoba (in its Child and Family Services Act), Ontario and Nova Scotia (in its Children's and Family Services Act ) have registries of persons convicted of child abuse or found to be child abusers, either by a court or by child protection agencies. The United Kingdom government recently announced the creation of a national registry of pedophiles.
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In the United Kingdom the system of enrolling parliamentary legislation goes back to the early days of the Parliament. Between 1278 and 1468, records of petitions to Parliament and the answers to them were preserved in the Statute Rolls, now kept in the Public Record Office. Since 1497, it has been the practice of the Clerk of Parliaments to keep another roll, known as the Parliamentary Roll. Until 1849, the text of the statutes retained by the Clerk of Parliaments was engrossed on a roll of parchment by the officials of the House in which the statute originated. Nowadays, two copies of every Act are printed on vellum. One is signed by the Clerk of Parliaments, and after royal assent it is entered on the Parliamentary Roll. The other is deposited in the Public Record Office. Between 1843 and 1849, many certified copies of statutes were enrolled in the Chancery. These are known as Enrollment Acts of Parliament and are now held in the Public Record Office. After 1849 this system of enrollment was discontinued. As already mentioned, the second vellum copy of each Act is now delivered by the Clerk of Parliaments to the Public Record Office.
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Copyright of these documents belongs to the Province of Alberta. Any downloading of all or part of any document forming part of this database will be for the sole purpose of printing single copies of those retrieved documents for internal use only. The user undertakes and agrees not to rent, sell, lend, lease, distribute, transfer or sublicense the documents forming part of this database (or any parts thereof) to any person in any format. Any uses beyond those specified require the prior permission of the Queen's Printer.
This consolidation of Statutes and Regulations has no legislative sanction and has been produced solely for the convenience of research. The official Statutes and Regulations must be consulted for all purposes of interpreting and applying the law.
This consolidation does not contain maps, charts and graphs contained in the printed version.
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In R. v. Stewart (1997), O.J. No. 924 (Ont. Gen. Div.), McWilliam J. held that the accused was not entitled to obtain the electronic work product compiled by police in preparation for a murder trial, in part because the accused already had the benefit of electronic transcripts of the preliminary inquiry and in the first trial; because some of the information in the electronic database was privileged; because severing the privileged from the non-privileged information would have taken two people approximately three months. However, the judge also said (para. 43): "If I thought that the Crown's possession of the computer and Ask Sam [the software program in question] would produce an unfair trial, of course, I would order the editing to be done by the Crown and for the disks to be "moved" and handed over to the defence. I have no such fears in this case. . . . [para. 45] I have also already indicated during the submissions, without prejudice to this ruling, that if the defence wishes to utilize the Crown's computer to search for other references when suggesting to the witness that his or her evidence is of recent fabrication, I would order the Crown to make such searches and disclose them. . . . I would do this simply to save time, as I do not think that justice itself demands such access to the Crown's computer."
In a transcript of a pre-trial conference held in R. v. Obront et al. by Gonet J., (Ont. Prov. Div.) Toronto, March 25, 1998, the Crown wanted to disclose the information it held on CD-ROM and diskettes. The defence lawyers objected. The judge ruled: "To put defence counsel in such a position that they would have to either retrain, or to have their clients assume inordinate expense to have someone else reproduce all these documents would be unfair. I am going to order that the Crown produce, as they have in the past, the documents that have been seized in this matter and upon which they are going to be depending on in the prosecution . . ."
The choice of format issue arises in a few other freedom of information cases. In s. 10 of Quebec's freedom of information law, Loi sur l'acces aux documents des organismes publices et sur la protection des renseignements personnel, the section has been interpreted to require that at the requester's demand, an electronic copy must be communicated in a written transcript form. In addition, in Directron Média Inc. c. Communauté Urbaine de Québec (1990), CAI 6, the Quebec Commission de l'acces a l'information held that a person who requests the computer tape of a municipal tax assessment roll is entitled to the tape. In Directron Média Inc. c. Inspecteur Général des Institutions Financieres et Pierrot Péladeau (1990), CAI 171, the request was for six specific fields of computerized information from the central file on businesses and a copy of documents which explained how these fields were structured. The Commission granted the request. In Frenette c. Ville de Portneuf (1988), CAI 131, the Commission considered a complaint where the city provided requested information on a type of paper that could not be photocopied. The Commission upheld the requester's complaint to have the information provided in a different format (i.e.: ordinary paper). In Mathieu c. Municipalité Val-David, (1988), CAI 263, the Commission considered a complaint where the requester wanted to review certain documents but objected to the presence of the mayor in the room while the requester reviewed the documents. The Commission upheld the requester's complaint to have access in a different "format" (i.e.: without the mayor in the room). In R.H. Ferahian c. Ville de Westmount (1988), C.A.I. 291, the Commission required the municipality to provide copies of the requested records to the requester and rejected the municipality's argument that the requester should be require to consult the records in person because the type of binding on the records made them too difficult to photocopy. All of these cases uphold the requester's choice of format over the government agency's choice.
Aside from the "choice of format" issue, there is the issue of whether something that is made publicly available in isolated, unconsolidated forms can defeat a request for the same records in a consolidated form. Most laws exist in both forms: individual publications when each amendment or regulation becomes law, and a consolidation of amendments and regulations. Freedom of information laws normally provide that the government is not required to respond to access requests where the information is already publicly available. What if the records exist in two forms: a series of unconnected publications, and a consolidated record that is not published? Will an access request for the consolidated record be defeated by the fact that the constituent elements of the record have been made publicly available in an unconsolidated form?
In U.S. Dept. of Justice v. Reporters Committee for the Freedom of the Press (1989), 489 U.S. 749, the U.S. Supreme Court upheld the government's refusal to disclose the "rap sheets" of a member of the Medico family, whose family had been identified by a Pennsylvania State Crime Commission as being dominated by organized crime figures. The Supreme Court's reasoned: "Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information."
Similar reasoning was used by the Quebec Commission d'acces in Directron Média Inc. c. Inspecteur Général des Institutions Financieres et Pierrot Péladeau (1990), CAI 171 (mentioned above). While the request for computer tapes and fields was generally allowed, the Commission found that one of the requested fields, the field of administrators, through juxtaposition with other information, could reveal personal information that would not be revealed through paper records. This reasoning would support the view that information in paper format and the same information in computerized information are different in important ways.
In Information Commissioner v. Minister of Public Works and Government Services (PWGSC), Sept. 23, 1996, there was a request under the federal Access to Information Act for information about who receives Member of Parliament pensions. The Government argued that the information was not publicly available (and therefore did not have to be disclosed) because "the Requested Information does not exist in a complete and final form but needs to be collated from several sources." Richard J. concluded that the information about who was in receipt of MPs pensions was publicly available information and therefore had to be disclosed, even though finding the requested information would require knowing the eligibility limits of the law and then finding out who had served as MPs for at least six years by looking in a variety of sources, such as the Library of Parliament, Who's Who of Canada, old copies of newspapers, or Election Canada results. This reasoning suggests that compiled and decompiled information should be treated the same. However, this case could just as easily be interpreted as interpreting any ambiguities in the law in favour of access and openness.
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Here again, the Canadian approach would differ. The federal Access to Information Act expressly excludes from the application of the law "published material or material available for purchase by the public" and "library or museum material made or acquired and preserved solely for public reference or exhibition purposes." Thus, it is not necessary to analyse whether library materials are "under the control" of a government institution to decide whether or how the Act will apply.
One of the more important U.S. cases on the "who has choice of format" question is Dismukes v. Department of the Interior, 603 F.Supp. 760 (D.C.District Ct.) (1984). In this case, the requester asked for a computer tape of names and addresses of participants in the six 1982 Bureau of Land Management Simultaneous Oil and Gas Leasing bi-monthly lotteries. This information was routinely made available for sale to the public in microfiche form. The judge noted: "In theory, a variation in the format of data released by defendant could reduce the quantum of information made available to plaintiff. For example, had plaintiff requested an audio tape, he could well argue that production of a written transcript would not satisfy his request, as transcription would remove nuances of inflection which give words added meaning beyond that reproducible on paper. However, neither plaintiff nor any document in the record suggests that the quantum of information contained in the microfiche varies in any way from that recorded on the computer tape. . . . defendant has no obligation under [the U.S. Freedom of Information Act] to accommodate plaintiff's preference. The agency need only provide responsive, nonexempt information in a reasonably accessible form." It is noteworthy that the judge included a footnote where she expressed concerned that private parties might use a computer tape to generate a mailing list in violation of the policy of the Privacy Act.
However, it should be noted that five years later, the U.S. Supreme Court handed down its decision in Department of Justice v. Tax Analysts, 492 U.S. 136 (1989), which some observers believe supports the argument that if a record in a given format is an "agency record," then the government must produce that record--in that format--unless a specific exemption applies.
More recently, the U.S. Congress passed the Electronic Freedom of Information Act. This law was considered by the Committee on Government Reform and Oversight, which issued a report about the law before it was passed by Congress. The report notes that s. 5 "requires agencies to help requesters by providing information in the form of records, if the agency can readily reproduce it in that form. The section would overrule Dismukes v. Department of the Interior, which held that an agency 'has no obligation under the FOIA to accommodate plaintiff's preference [but] need only provide responsive, nonexempt information in a reasonably accessible form.'"
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In addition to the star pagination issue, Mead Data also commenced an anti-trust complaint against West detailing its concerns that West had monopolized legal publishing. The confidential settlement in the star pagination case also settled this complaint as well. A copy of the complaint can be found at www.hyperlaw.com/meadwest.htm.
In Texas v. West Publishing, 882 F.2d 171 (5th Cir. 1989), the 5th Circuit Court of Appeals refused to hear Texas' action seeking a declaration that certain legislative materials could not be copyrighted or, in the alternative, that they were in the public domain and were subject to 'fair use'. The court held that there was no existing controversy because there was no evidence that Texas intended to publish in a way that would give rise to such copyright claims from West.
In Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 111 S.Ct. 1282 (1991), the U.S. Supreme Court held that copyright only protects works that exhibit sufficient original creativity by the copyright claimant--"sweat of the brow" is not enough.
In Oasis Publishing Co. v. West Publishing, 924 F.Supp. 918 (U.S.D.C. Minn. 1996), the trial judge held that West has a protectable copyright interest in the arrangement of the decisions in the Florida Cases, and that Oasis' proposed star pagination would infringe copyrightable elements of West's arrangement and that it would not be a 'fair use' of West's page numbers. Oasis had noted in argument that a Florida State provided that "In July, 1963, and every second year thereafter until otherwise provided by law, the Supreme Court and the Attorney General shall jointly enter into a contract with West Publishing Corporation, St. Paul, Minnesota, providing for the publication ... and distribution of copies of Florida Cases as necessary to furnish copies thereof to the officers and institutions as required or authorized by law." This "official" status and monopoly for West's publication, the judge held, was not enough to change the judge's view, nor was it enough, in his view, to bring the reports within Florida's Public Records Act. This decision has been appealed to the 8th Circuit Court of Appeals but no decision has been rendered at the time of writing.
In Matthew Bender & Co. v. West Publishing, Hyperlaw v. West Publishing, (S.D.N.Y. Nov. 22, 1996), the trial judge rejected West's copyright claim. The court also rejected West's last-minute argument that the action should not be heard because there was no evidence that Bender and Hyperlaw intended to copy significant amounts of West's materials (the argument that succeeded against Texas in 1989). The court ruled against West this time.
In U.S. v. Thomson Corp., 949 F.Supp. 907 (D.D.C. 1996) (a month after the Bender decision, Dec. 23, 1996) federal and state governments brought an action to prevent West from being purchased by Thomson, on the grounds of the monopoly that it would create. Thomson and the governments came to an agreement, which some observers challenged for not being in the public interest. The court found that the agreement was in the public interest. Thomson and the governments proposed that Thomson/West would divest itself of 52 publications (various reports series and other law books). Perhaps the most significant issue dealt with by the judge was the star pagination issue. Thomson/West and the governments agreed that Thomson/West could issue licenses to anyone who wanted to star paginate to West's reports, with the licenses to be granted according to a fee schedule. The judge expressed grave doubts that any license was necessary, as he was not persuaded by the reasoning in Oasis Publishing, was of the view that Feist overruled Mead Data, and agreed with the trial decision in Matthew Bender and Hyperlaw. However, while the judge expressed doubts, the matter before him did not require him to give a ruling on the merits of any copyright claim West might have. The judge ruled that the public interest required that the license in question be compulsory and not at the option of Thomson/West, ruled that the proposed fees were too high, and clearly stated that anyone who chose not to obtain a license was free to do so and take their chances that a license was unnecessary because West might not, ultimately, have a valid copyright claim to begin with.
On Nov. 3, 1998, the 2nd Circuit Court of Appeals affirmed the trial ruling in Matthew Bender & Co. v. West Publishing, Hyperlaw v. West that the action should be heard and agreed that West has no copyright in page numbers of court decisions it reports. The court found that Feist effectively overruled Mead Data, but also expressly disagreed with the 8th Circuit in Mead Data because that court adduced no authority for protection pagination as a "reflection" as an arrangement (rather than a "copy") and did not explain how the insertion of star pagination could create a "copy" of an arrangement when the competing produuct, that includes the star pagination, is a completely different arrangement of cases. There were actually two separate cases and two separate but closely related sets of reasons. The first case ruled that minor editorial changes made by West are not sufficiently original to warrant additional legal protection. The second case ruled that CD-ROM publishers could include in the text of court decisions that they publish the page numbers used by West in its printed volumes. At the moment, this is the highest authority on this question, but it remains to be seen if this decision will be appealed to the U.S. Supreme Court and whether the 8th Circuit will issue a contrary judgment in the Oasis Publishing case.
In a news release immediately following the 2nd Circuit decision, the Consumer Project on Technology described the importance of the decision this way:
Hyperlaw, a small NYC firm that publishes court opinions on CD-ROM, argued that the published court opinions were in the public domain. Today, the 2nd Circuit agreed. . . . This has been a closely watched case. At stake is the public's right to publish the text of court opinions, including corrections often only found in West's bound volumes of court opinions, with citations based upon the page numbers in the West bound volumes. West is the only comprehensive publisher in paper of federal district court and circuit court opinions, and the body of legal scholarship and court opinions rely upon West's citations and the corrected versions of court opinions that appear in West books. The case is a major blow to West Publishing and Lexis, the two members of the so called Wexis cartel, and it is a major victory for citizen access to legal information. This dispute is also the driving force behind Congressional efforts to create new legislation that would create new property rights in data. The federal legislation, which was defeated this year, would protect the Wexis cartel from competition. [Note that Lexis is owned by Mead Data.]
It should also be noted that investigative journalism by the Minneapolis-St. Paul Tribune and by Time Magazine produced news stories showing how West gave free luxury trips to judges and important political campaign contributions over the years. The question that these practices raise is whether the courts and Congressmen may have been influenced by these acts of largesse from West. These articles can be found at the Web page of the Consumer Project on Technology.
The question of conflict of interest and judicial independence also exist to a certain extent in Canada. Commercial legal publishers such as QuickLaw, Carswell and SOQUIJ provide Canadian courts with free access to legal materials.
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11340.1.
Later on in the same code (note para. (a) in particular):
11344. The office shall do all of the following:
In the Vehicle Code of the California Codes, there is the following: 1656.4.
California also has a new law regulating the sale or lease of goods or services on the Internet. The Business & Professions Code Section 17538, which already regulates telephone, mail order, and catalog sales, was expanded to cover the Internet and other electronic means of communications. The statute requires a vendor conducting business through the Internet to make disclosure to a California buyer of its return and refund policy, its legal name, and its street address. Other requirements apply. Violation of the statute is a misdemeanor punishable by a fine up to $1000 and/or up to six months in jail.
Need a definition of the Internet? The statute defines the Internet as "the global information system that is logically linked together by a globally unique address space based on the Internet Protocol (IP), or its subsequent extensions; and is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols; and provides, uses, or makes accessible, either publicly or privately, high level services layered on the communications and related infrastructure described herein."
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Changing Services and Closing Facilities
14 Corporation may make changes
14. The Corporation may, in accordance with this Act but subject to the provisions of the Aeronautics Act and of any regulations made under that Act that relate to aviation safety or the safety of the public,
15(1) Notice of changes
15. (1) Where the Corporation proposes to do anything mentioned in section 14 and, in the opinion of the Board of Directors of the Corporation acting reasonably and in good faith, the proposal is likely to affect a significant group of users in a material way, the Corporation shall give notice of the proposal in accordance with this section.
15(2) Contents of notice
(2) The notice must
15(3) How notice is to be given
(3) The Corporation shall send, by mail or by electronic means, a copy of the notice to
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See also the Act's s. 18(3)(b), 21(3)(b), 36(3)(b), 37(4)(b), 40(3)(b), 85(2)).
Note also the Custom Tariff Schedule note:
SCHEDULE
[Note: The Schedule is accessible free on the Internet, in downloadable form, at the following address: www.fin.gc.ca. Revenue Canada is in the process of making a readable version of the schedule to the Customs Tariff available free on the Internet, which will be accessible in 1998 at the following address:
www.rc.gc.ca/vco.]
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Ce site permet de CONSULTER l'Infobase LOIS DU QUÉBEC gratuitement avec le logiciel Folio siteDirector MD. Cette version gratuite de l'INFOBASE, mise à jour mensuellement, est conçue pour l'utilisateur occasionnel qui veut consulter les Lois du Québec. [www.doc.gouv.qc.ca/html/lois_consult.html]
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Elle n'est pas conçue pour le téléchargement ou l'impression des textes législatifs, ni pour une utilisation professionnelle. [TRANSLATION: This version of the laws is not designed for downloading or printing legislative texts or for professional use.]
PRODUITS COMMERCIAUX
Les personnes ayant des besoins de nature professionnelle (municipalités, avocats, notaires, consultants, etc) tireront avantage de la version commerciale de l'Infobase Lois du Québec et de l'Infobase Règlements du Québec, mises à jour mensuellement.
Avec les produits commerciaux des Infobases Lois du Québec et Règlements du Québec, les professionnels pourront effectuer des recherches toujours optimales, grâce aux quelques 20 000 liens hypertextuels ajoutés pour faciliter la navigation, et à diverses fonctions de recherche élaborées telles que l'utilisation de masques de requête ou la recherche multi-infobases.
L'Infobase Lois du Québec est également offerte sur cédérom. Cette version possède plusieurs atouts sur la version Internet, tels rapidité d'accès à l'information, souplesse d'utilisation supérieure, plus grande précision de la recherche, possibilité d'ajout d'annotations dans le texte.
TÉLÉCHARGEMENT
Les clients qui souhaitent obtenir le texte des lois et les télécharger peuvent le faire moyennant un coût modique à partir du Site de téléchargement des Lois, règlements et projets de loi.
VERSION IMPRIMÉE
La version imprimée des textes de lois et règlements, lorsque disponible, peut être commandée directement à partir du Catalogue des Publications du Québec.
Cliquer sur la Liste des prix pour consulter celle-ci et vous abonner.
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The Agency is the economic licensing authority for carriers that apply to enter the air and rail modes in Canada. It ensures ongoing compliance with the licensing requirements of the Act. It also exercises certain powers in regulating fares and tariffs where market forces may not suffice.
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The Agency, with the approval of the Governor in Council, can make regulations to direct carriers in their dealings with customers. Regulations are made after consultation with industry and the public. Where more effective, the Agency may also use codes of practice and guidelines.
The Agency also makes and enforces decisions in response to complaints and applications brought before it. The Agency serves shippers, carriers, consumers and third parties such as municipalities. It has the power to order the removal of undue obstacles to the mobility of persons with disabilities in the federally regulated transportation network. The Agency orders corrective measures where a person with a disability has encountered undue obstacles.
The government's transportation policy calls for an accessible, freely competing transportation sector with economic regulations only in respect of those services and regions where regulation is necessary. The Agency, by specific regulatory provisions or when asked, can ensure that transportation users, commercial shippers and individual travellers, receive the protection provided for them in the legislation if market forces alone do not result in fair, reasonable service.
The Agency hears complaints from users and others regarding poor service or abuse of market power and, depending on its decision, may order the carrier to make the changes necessary to be in conformity with the legislation and regulations. The Agency has the power of a superior court in issuing decisions and orders on matters within its jurisdiction.
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Geoff Hoon, Minister of State at the Lord Chancellor's Department, outlined proposals that envisage "virtual" court hearings in which people can communicate with the judge and lawyers over the Internet via their television sets. Many of the traditional trappings of justice--including legal documents, books, papers and court hearings--are likely to disappear. The proposals put forward in the consultation paper, civil justice, form the first draft of an information technology strategy for the next 15 years. Judges and lawyers will still be needed. But much routine legal work will be computerised and packaged as an online product, such as drafting standard contracts and agreements.
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The paper asks: "Is it the physical courtroom with associated trappings that is important to most people, or is it the confidence that their dispute is being addressed by an appropriate, impartial person?" Many more cases could be disposed of via "virtual" hearings that could be less daunting and more cost-effective for certain kinds of grievance, such as many tribunal claims. The paper suggests that people would obtain far more legal advice and information online than from lawyers, using computer kiosks or terminals in shopping malls and courts, and via the Internet.
The paper suggests the creation of a website to act as an online civil justice service, a first port of call for anyone seeking information or advice on legal problems.
See also Nolo Press' Web site for an example of a self-help legal publisher. Note that the Texas Unauthorized Practice of Law (UPL) Committee, whose members are appointed by the Texas Supreme Court, are trying to stop NoloPress from distributing self-help legal software. At the time of writing, NoloPress will be arguing in the Texas Supreme Court that the UPL Committee procedures and authority should be made available to NoloPress in order for it to properly defend itself. For details on these proceedings, see www.nolo.com/Texas/index.html.
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