Free Access Is Here to Stay

Free access to legal information in Canada is here to stay. Of that fact, there can be no doubt.

Bob Berring, the man who has triggered the recent Slaw debate on the future viability of free services, sounds like a man from the past, nurtured on West and Lexis and very happy with the services that they provide. Like him, I visited the West editorial offices early in my career and was equally impressed by West’s ability to gather free content, add editorial value, and sell and resell public records to the legal profession. I was also impressed on my first visit to Lexis in Dayton by that company’s ability to build and deliver the same content online.

More recently, however, I visited LexUM at the University of Montreal and concluded that they have what it takes to effectively challenge the commercial providers of legal information on their own turf, i.e., a clear vision combined with entrepreneurial leadership, a focus on legal information, a stable infra-stucture staffed by professional “free access to law” publishers with reliable core funding, and a demonstrated ability to build and distribute innovative products that clearly meet customer needs.

Like Bob Berring, I also recall saying many times that governments and volunteer organizations that depend in whole or in part on government funding would be unreliable providers of these services and that a user could expect that future budget cutbacks would disrupt or terminate any service being provided. Only a commercial provider could be expected to provide the consistent uninterrupted service required by the legal profession. However, unlike Bob Berring, I came to believe that what I was saying was wrong. If asked for my opinion today, I would say something like the following:

Free access is established

Canadian lawyers have been conditioned to expect access to legal information online to be a free service. Throughout their professional training, lawyers as law students were given free access to value added primary content, from both the commercial publishers and from free services such as CANLII. In the circumstances, it is only natural for the legal profession to expect that access should continue to be free while practicing law and to be prepared to collectively support initiatives that would make it happen. Governments also have an obligation to provide access to the law. In the online era, it has become expected that governments do so at no cost to citizens who wish to have access to legal information. The result is an ever increasing array of sophisticated free services that provide access to legislation and the decisions of courts and administrative tribunals.

Free access costs money

Of course, free access to legal information does not mean that the product is produced at no cost. Someone has to pay for its creation and distribution. Apart from governments, the leading non-profit provider of free legal information in Canada is CANLII, an entity owned by the Federation of Law Societies and built in collaboration with LexUM. In a recent post, Catherine Best stated that CANLII is funded by an annual levy on law society members of $30 per member. The actual cost to a lawyer of building and maintaining CANLII is less than a quarter of the cost of the purchase of a single bound volume of a law report series. The value for money is clear.

Free services are as stable as commercial services

Historically, Canadian commercial legal publishers have had an uneven track record as providers of legal information. The current smooth functioning of the market has not been the norm. Apart from Canada Law Book’s core law report series, commercial legal publishing includes many false starts and discontinued products. By contrast, the Ontario Reports published by the Law Society of Upper Canada, and government publications such as the Ontario Labour Relations Board Reports, have been published without interruption from their launch date. While budgets of governments and law societies can be cut, and products like online services curtailed or discontinued, the same is true for commercial legal publishers who also operate within a budgetary framework. Cuts can be expected in a tough year or whenever a product no longer makes economic sense.

Free services are as innovative as commercial services

Free services have proven themselves to be innovative to be innovative and increasingly competitive with the commercial publishers. There are many examples of this including CANLII/LexUM’s point in time legislation with screens that permit the user to view more than one version of the legislation at the same time, as well as government services such as Ontario’s elaws and administrative tribunal websites like the Ontario Securities Commission which are equally innovative in their presentation of legal information.

Free services and commercial services will co-exist for some time to come

Like Mr. Beering, I believe that the commercial publishers will continue to be at the centre of online legal research. As so many have said on Slaw and elsewhere, the most efficient and cost effective starting point for high quality legal research is secondary content, supplemented of course by online searches of legislation and case law. It is the commercial legal publishers who have developed and published the treatises and monographs that comprise the legal literature of Canada and who have the capability of offering online services that integrate secondary and primary content online. So long as the commercial legal publishers continue to develop, publish and add high quality secondary content their services, they will hold their position in the market, but always with the free services nipping at their heals and forcing them to up their game. This is a good thing.