Legislation Online Goes “official” – a Problem or an Opportunity for Commercial Publishers

Recent developments regarding the official status of legislation available online are certain to have an effect on the legislative products offered by Canada’s commercial legal publishers.

As noted in a recent SLAW posting, Ontario now recognizes its legislation website as an official source of the law. As of November 30th, 2008, an “on-screen display of a statute or regulation viewed on, or downloaded from the e Laws website” is now official.

Quebec is expected to follow suit. Just prior to the recent dissolution of the National Assembly, a bill was pending that would recognize the official character of its legislation posted online. The bill is almost certain to be reintroduced soon after the election, regardless of which party is elected.

It is only a matter of time before the remaining jurisdictions follow suit.

Free access to “all” Canadian legislation

The availability of “official” content compounds the problem already being experienced by commercial publishers in competing with the “free” legislation available through CANLII and on various government websites. The currency of the legislation on government websites is being improved and enhancements such as “point in time” are being copied by governments, eliminating advantages previously offered by the commercial publishers.

The one remaining key content difference between the commercial publishers and CANLII was the inclusion of British Columbia legislation. That advantage is also about to be lost. British Columbia has just announced that it will fall into line and join the other provinces in offering free access to its legislation.

An opportunity for the commercial publishers

Given that legislation is now available everywhere at no charge, will the commercial publishers respond by introducing value added content to their legislative databases along the lines of the United States Code Annotated on Westlaw.

The USCA on Westlaw combines the official text of the U.S. Code with relevant cases, historical notes, indexes, cross-references, and other annotations. In Canada, the commercial publishers offer similar content of equal quality but focussed on collections of annotated statutes in selective subject areas like bankruptcy law, civil procedure, and criminal law.

At some point, one can anticipate that one or more commercial publisher will take the next step and combine their existing annotated statutes with new content online to create a comprehensive collection of ”Statutes of Canada Annotated” or the Statutes Annotated of a province. Existing content could be used as a base on which to add annotations to the remaining statutes in stages.

At the very least, one can expect that commercial publishers will seek to make arrangements with governments to make the official content available online to their subscribers. Licensing the official content at little or no cost from governments should provide an opportunity for the commercial publishers to reduce costs while enhancing the authority of their content offering. While the quality of the commercial databases is at least equal to that of the various governments, they can never be “official”.

Either way, the commercial publishers have a real opportunity to take legal research in Canada to a new level. Will it happen? Only time will tell.

Comments

  1. Adding value is clearly the way to go for commercial publishers. Governments are never going to go heavily into that occupation – it’s too hard and there is too speculative a demand for it.

    Someone wrote to the AG of Ontario lately to ask why a section of an Act was still on eLaws when the court had held it was unconstitutional. The easy answer was that the decision was still under appeal … but the better answer is that we do not annotate our statutes, because where do you stop? At unconstitutionality? At radical re-interpretation? At any ‘helpful’ interpretation? Who decides what people will decide is helpful?

    There is another problem: a statute held unconstitutional is not repealed by that decision (even if the court does not give a year-long stay of execution – the authority for which I still do not understand…) It is still in the statute books (and websites) until the Legislature or Parliament repeals it or amends it. So the editors of eLaws could not just delete it anyway. But it cries out for someone’s annotation.

    Lawyers know that the text of the statutes and regs is just the beginning. Where one goes from there can be influenced by the commercial publishers, and assisted by them. (Should ‘official’ or even unofficial online statutes have a disclaimer about their not necessarily stating the law on their own? But then the same disclaimer should be in printed versions – and commercial versions…)

    BTW the website of New Brunswick statutes and regulations has asserted official status for its content for some time, though the electronic version yields to the print.

  2. I’ve been wondering what the publishers will do ever since e-Laws was launched. Clearly the writing is on the wall. I think that annotation and analysis is a huge market. Personally I only buy consolidations when an annotated act isn’t available.