CLIC made a difference
In the late seventies and early eighties, the Canadian Law Information Council was the key player in the effort to create a vision for accessing legal information online. CLIC was the idealistic, innovative and somewhat eclectic creation of the federal and provincial governments, that ran out of steam well before the new order it foresaw, came to pass. In its relatively short life, however, CLIC played a valuable role as prophet, educator and motivator in preparing the legal information community for the dramatic changes that were to come.
CLIC was “right on the money” in projecting that the future was in digital access to legal information and it pursued a number of initiatives in support of that vision from which we still derive benefit today.
It is worth noting that CLIC had many sceptics and naysayers, not the least of which were the commercial legal publishers who were exasperated by what was seen as an effort to usurp their traditional role as the key providers of legal information. After all, it was the commercial legal publishers who helped to create the common law tradition in the first place by collecting and publishing reports of court cases centuries before any government expressed any interest in the subject. In their view, CLIC was both unnecessary and irrelevant. As events unfolded, it could be argued that the commercial legal publishers were the primary beneficiaries of CLIC’s efforts in readying the market for the digital legal information products.
The CLIC legacy was a game changer. Without question, its most important achievement was the seminal role it played in making “computer assisted legal research” accessible at no charge to law students, a tradition established by CLIC that is continued by commercial legal publishers to this day. As a direct result of their exposure as students, the legal profession in Canada is a world leader in the use of computer based legal research in the practice of law. In turn, the commercial legal publishers were motivated to develop legal information products that are among the best in the world.
There were other CLIC successes, some of which are documented in the Fourth Edition of “Using a Law Library” by Margaret A. Banks (The Carswell Company Limited: 1985):
– CLIC provided moral and material support to Quicklaw, one of the earliest innovators in creating legal databases and building a platform for distributing legal information online
– CLIC worked with CALL to develop the concept for a bilingual national “Index to Canadian Legal Literature” using the Library of Congress Classification System and ensured its delivery in print and online formats,
– CLIC proposed and negotiated an agreement with a commercial legal publisher to create the first editorial board for a legal publication in Canada, consisting of users and legal publishers, that subsequently became the industry standard for print and online products,
– CLIC developed standards for the indexing of statutes and indexed consolidated statutes for governments,
– CLIC developed the Canadian standard for assigning short case names to judgments prior to being reported (the latter commonly referred to as the “CLIC Rules”) ,
– CLIC Task Forces gathered and shared information on the future use of technology in providing access to public records,
– CLIC educated the legal information community in the potential of digital information by means of forums and meetings, as well as through its publishing program, and
– CLIC developed recommendations for uniform case citations through standardizing court docket numbers across Canada (the forerunner of today’s “neutral citation”).
All in all, a pretty good record.
On two big issues of the day, CLIC had little or no impact. The first was the prospect of foreign ownership and control of Canada’s legal heritage. There was a widespread belief that the financial resources required to create and operate databases of case law and legislation were beyond the means of Canadian legal publishing companies and that commercial online services would inevitably be owned and operated offshore. At the time, Lexis Nexis was the leader in this field and actively pursuing Canadian content to add to its collection of databases. None of the traditional Canadian legal publishers, seemed able or willing to commit the resources necessary to compete on the scale that was required.
The second big issue was the excessive duplication of case law reporting in print. The representatives of the law societies in particular were determined to ensure that the pattern of reporting the same case in as many as ten different publications in print would not be repeated online. It was believed that reducing the amount of duplication in case reporting would thereby reduce the costs of creating content and at the same time simplify legal research. While CLIC compiled detailed reports on the extent of the duplication, the amount of the duplication continued to increase.
A period of benign neglect
As time passed, concern about foreign ownership and control faded. Canadian commercial legal publishers became active and effective players in the gathering and delivery of Canadian legal information in digital formats. Against all expectation, the achievement of the late Hugh Lawford in building Quicklaw showed that Canadians could successfully build and maintain a domestic online service. Maritime Law Book followed suit a few years later. In Quebec, Soquij offered databases with enhancements that matched the efforts of commercial publishers. Canadian ownership of legal publishing companies operating in Canada increased when The Thomson Corporation acquired The Carswell Company Limited, thereby putting Carswell’s digital initiatives in Canadian hands.
As for duplication, it proved to be a non issue. If anything, duplication became an opportunity if not a virtue. The cost of building and maintaining platforms and databases fell dramatically as everyone went digital. Governments compounded the amount of duplication that already existed by creating their own digital legislative services and by distributing digital copies of the decisions of courts and tribunals directly and indirectly to anyone who wanted them. Even the Federation of Law Societies, which had objected to duplication years before, launched its own service to compete with the commercial legal publishers. Far from being a problem, widespread access to low cost or free legislation and case law became the norm because the content became readily available from so many sources.
Change is the only constant
It has been more than three decades since the Canadian Law Information Council was last on the scene. Since then, the delivery of legal information has been transformed in ways not contemplated at the time, raising new questions, and reviving old ones thought to have been laid to rest.
Among them, one can find foreign ownership and control, outsourcing and offshoring, preservation of and access to our legal heritage, access to French and English translations of appellate court decisions on subjects of national interest, the definition of a public document, copyright in compilations, and government funding.
1. Foreign Ownership and Control.
Canadian ownership is a moveable feast. LexisNexis acquired Quicklaw Inc, thereby transforming a Canadian business into a foreign owned one. CCH Canadian has always been foreign owned and controlled. The Thomson Corporation merged with Reuters, thereby reducing the Thomson family’s stake in the company to just over 50%, but raising the prospect that a future merger by Thomson Reuters with another large company could see Thomson maintain control without having majority ownership.
In such an event, ownership and control of all of three of the major legal publishers in Canada would be based abroad. Does it matter? The Canadian government has always been concerned about foreign ownership of the book publishing industry. Isn’t online publishing even more important? Alternatively, if Canadian content is created and accessible to Canadians, isn’t that enough? Or is it?
2. Outsourcing and Offshoring.
The emergence of real competition in the market for legal information online, combined with the recent economic downturn, has been a major challenge for legal publishers everywhere. In an effort to reduce costs and maintain profit margins, legal publishers have embraced the idea of contracting out editorial processes and systems maintenance and development to businesses based offshore, that may or may not be owned by the legal publishers. The acquisition of Canada Law Book is expected to have the effect of eliminating one more domestic source of legal information when Canada Law Book databases migrate to the Westlaw platform.
Apart from the loss of Canadian jobs, outsourcing and offshoring may not matter much in the greater scheme of things. Does it matter more if offshoring and outsourcing are combined with foreign ownership and control? Or not?
3. Preservation of Canada’s legal heritage.
There is a major shift underway in legal research from print to online sources. Virtually all cases are now published in databases, while only a selection continue to be published in print. The precipitous decline in print subscriptions to law reports series will inevitably result in their termination in print. The National Library and Archives has the “mandate of preserving the documentary heritage of Canada for the benefit of present and future generations”. Yet, surprisingly, it continues to make print law reports subject to Legal Deposit while exempting the comprehensive collections of case law contained in databases of legal information.
In light of the extent of foreign ownership and control, combined with outsourcing and offshoring, the question should be asked whether the current approach of the National Library and Archives in granting exemptions to databases of legal information is in the public interest. In the event that the National Library and Archives does make case law databases from commercial publishers subject to Legal Deposit, the question then arises as to what, if any, public access should be given to those databases.
4. Access to French and English translations of appellate decisions.
While the Supreme Court Reports, the Federal Court Reports, and the New Brunswick Reports all continue their tradition of publishing judgments in French and English, there are problems with access to translations of judgments of appellate courts in other provinces.
There are two aspects to consider when discussing access to translations. The first is access to translations that exist already. Isn’t it possible to create a mechanism for efficiently identifying and accessing translations of cases from all possible sources including law firms and lawyers who have arranged to have a case translated and are willing to share it with others.
The second is access to funds to prepare translations of cases of national interest on an ongoing basis. Isn’t it possible to establish a system or mechanism for identifying such cases, providing stable funding for their translation, and a readily available means of having the translations completed and circulated.
5. Definition of public documents.
Questions have arisen as to whether there is a copyright in the pleadings filed in the court as part of a judicial proceeding now that Carswell has included them in its Litigator product. Copies of the documents in question are available to anyone from the court for a fee. Even credit agencies have access to them. To all intents and purposes they form part of the public record. It should be an easy matter for the government to clarify the status of these documents. Instead, an author of a set of pleadings is attempting to block access to documents to them in a legal proceeding.
Clarity is needed as to what is and is not a public record in an era when everything digital is or can be expected to become readily accessible from one source or another. Shouldn’t the government indicate the status of these documents without making it necessary to litigate the matter? In the case of pleadings that are submitted to the courts in a digital format, shouldn’t they be attached to every judgment issued by the court, thereby making it possible for every legal publisher to provide access to both pleadings and judgments through their online services?
6. Copyright in compilations.
While case law decided since the 1970’s is available from many sources, access to case law decided prior to that date is limited by copyright claims in law report compilations. In the common law provinces, older reported cases are found in a handful of law report series that are now controlled by a single company. Competing sources of the same content have avoided mounting these cases in their own databases to avoid the prospect of costly litigation over their right to do so.
Whether such claims have any validity is a question that needs review and clarification. It is recognized that there is no copyright in the cases themselves. At the same time, the legal publishers are unable to prove that they have copyright in their classification systems and headnotes. It is a fact that no written records exist prior to 1970 that would identify the authors of classification systems or headnotes that appear in print law reports and that no records exist that transfer copyright from the authors to the legal publishers. In general, law report series published prior to 1970 list prominent members of the legal profession of their day as series editors on their titles pages and nothing more. These members of the profession were almost certainly not employees of the legal publisher. The only documentation that exits with regard to the publisher’s claim to copyright is a note to the effect that copyright is claimed on each volume of a law report series, and in some cases on each document in a database. Not much to go on, but enough to create litigation chill.
The best argument for the National Library and Archives to provide unlimited access to this content, both on and off site, possibly through intermediaries such as CANLII, is the restriction on equal access that results resulting from copyright claims to compilations of older cases originally published in print. In any event, some consideration should be given to providing free and open access to case law reported prior to 1970.
7. Government Funding.
The federal government funds a book publishing program that provides grants to Canadian print publishers, including legal publishers, based on revenues derived from books already published. At the same time, it provides little or no assistance for the creation of content before being published in print or digital formats. Does this really make any sense?
Shouldn’t the funding of book publishing be available to support the “publishing” of new works, as opposed to inflating the margins of publishers of existing works? Shouldn’t the financial support be made available to any publisher who creates Canadian content, even if they not Canadian owned? Shouldn’t the funding be available to create content in the form of databases as well as in print?
Do the provincial governments have a part to play? Shouldn’t each provincial archives have a comprehensive collection of all of the cases ever decided in their province? Provincial archives could build comprehensive compilations of their own case law from existing print and digital sources and make them available to anyone interested in mounting them online. Maritime Law Book and CANLII would both benefit from being able to incorporate judgments decided prior to 1970 in their case law collections.
Isn’t it time to re-create CLIC or something like it?
The questions listed above are likely only a few of the many that may exist regarding access to legal information in the digital era that warrant a review by public policy making bodies. Aside from secondary content, legal information is public information that should naturally be subject to some form of public review and oversight. The scale of the changes that have taken place call out for a formal process of review of what is happening now and the creation of a new vision for the future preservation and delivery of legal information.
One possible way of doing so is to recreate CLIC, or more realistically, create a “CLIC-like” body for our time to identify issues that are both national in scope and of a public policy nature, to gather information, and to provide a forum to give direction to the future delivery of legal information in Canada, in the same fashion as CLIC in the 1980’s.
A CLIC comeback may be the means to achieve it.