Court Filings and Copyright

The Register reports that a California lawyer has written to the Chief Justice of that state to object to the state Supreme Court’s practice of passing lawyers’ briefs on to the commercial publishers, LexisNexis and Westlaw, who then sell access to them. It seems from Edmond Connor’s letter to the court that he is principally concerned about the profit-making aspect of the situation as a violation of copyright, rather than about the simple public availability of documents prepared for litigation.

At an earlier time all briefs filed with the California Supreme Court had been copied four times and placed in Depository Libraries, where they might be consulted. The current practice sees the commercial publishers scanning (with OCR) the printed briefs supplied to them by the court.

Mr. Connor has proposed a changed practice in which commercial publishers would be able to sell access to only those briefs whose authors have given permission and would have to share their profits with the authors. As well, Connor proposes, the commercial publishers would agree to provide Depository Libraries with electronic copies of all briefs free of charge.

The Supreme Court of Canada now publishes all factums submitted after February 9, 2009. These can be found via the SCC website page on an appeal’s Case Information; the menu in the left sidebar contains a link to “factums”. Because all submissions to the Supreme Court must be electronic as well as printed, there is no need to scan the factums, in PDF.

I don’t know whether Canadian commercial publishers bother to try to sell SCC factums; it would be foolish for counsel to pay when they’re available for free. Nor am I sure about how copyright law applies to SCC factums, though I suppose that the fair dealing and research exceptions would apply, if courts weren’t prepared to find that submitting documents in litigation transferred copyright to the court in question and, hence, the Crown.

So far as I know, memoranda to provincial appellate courts are not currently available in electronic form, whether via commercial publishers or otherwise.

Comments

  1. Slaw reader Kate Odell Stanley M. Tick & Associates has kindly let me know that Westlaw.Canada’s Litigator service does indeed make available “complete pleading documentation… extracted from the court files of significant cases in every Canadian common law jurisdiction,” as the Litigator online brochure has it.

    Thanks, Kate.

  2. I have visited a number of Ontario court offices (ONCA and ONSC) recently for research purposes. As usual in Ontario, practice differs from local office to local office.

    In Toronto, one is able as a member of the public to access some registry information at a public terminal, but if digital filings are even possible, they appear to be uncommon. One pays $10 to look at a file, and unless it is recent, it has to be retrieved from off-site storage (for which there may be a hefty fee.) In Toronto, there are self-serve photocopiers at 50 cents a shot.

    For offices outside of Toronto, it is wise to call ahead to make an appointment, because on any given day the staff may be too busy to assist. At the offices I have visited, there was no self-serve copying, which means you usually have to give detailed instructions as to what needs to be copied, and then wait several days to get your copies (at a dollar a page). At least they accept credit cards.

  3. I should add that, sometimes, one finds that counsel for the parties are willing to share digital copies of court filings. However, if the allegations in pleadings are potentially defamatory, counsel will be well advised to keep Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 1995 CanLII 59 (S.C.C.) in mind. Copyright infringement isn’t the only potential hazard in making court filings more accessible to researchers.

  4. Gary P. Rodrigues

    It will be interesting to see if any Canadian lawyer decides to follow suit and challenge the publishers who publish pleadings from Canadian court files. Thus far, the publishers have treated these documents as if they were in the public domain. An argument could be made that the practice is in violation of the authors’ copyright in the absence of written permission from the authors.