Because law belongs to the people, the governments and courts that issue law must make it available to the people. This is a simple and widely accepted fact.
In practice, as governments and courts carry out their responsibilities to make law available, they do so in a wide variety of ways. For example, the digital versions of federal statutes available from Justice Canada are “official”, and they exist in forms and with rights extended to all and sundry that permit reuse and republication without royalty or permission. However, in some provincial jurisdictions, a surprising range of limitations exist.
The details of those limitations aren’t the point of this article. My focus today is on the role of expanding access to support innovation, including innovation that will come through expanding access to CanLII.
From unbundled local loops to unbundled legal information
From late 2006 to early 2010, I was a marketing director in the wholesale division of a large incumbent telephone company. The word “incumbent” here denotes the company’s role as the original (or at least the successor to the original) phone company in the area. Being first gave the company certain advantages over those competitors that came later. For example, while the first company had, over decades, placed wires in the ground that connected to every home and business, new companies needed to invest heavily to achieve the same connectivity.
In exercising its powers under the Telecommunications Act and to promote facilities-based competition, the telecom regulator (the CRTC) requires incumbent phone companies to “unbundle” access to parts of its network – like “local loops” – on a rate regulated basis.
That experience comes to mind (for me at least) when thinking about Canadian legal information.
Every court and government holds the monopoly over its information and must make it available to the public. CanLII is a publisher, not a monopoly or “incumbent”, and it generally acquires the information in the same manner as is available to any member of the public. However, through 13 years (from concept to today) and over $20M of investment from Canadian law societies through the Federation of Law Societies of Canada, it has built up a solid lead and in the “free access to law” business and its central position may now be having a negative effect on innovation in legal information.
Like unbundling the pieces of a phone company network, there is a need to unbundle CanLII’s data if the full potential of innovation in legal information is to be realized.
Simon blogged about this last month, but we are now taking the wrapper off our new tool to enable anyone to start building apps and services that make use of CanLII’s case and legislative metadata.
You may not personally choose to read case law structured like this:
"title": "R. v. Pham",
"citation": "2013 SCC 15 (CanLII)",
But your computer is quite happy to do so, and to read, sift and organize thousands of similar data points in order to build something that queries and delivers precisely what the user needs while dozens, hundreds or more steps churn rapidly and silently in the background.
What will you do with this information? How will you mix it with other information?
CanLII is building a few, small-scale applications to get things going, but the point of unbundling access is to provide the tools to those that see opportunities for innovation, not to dictate how you should innovate.
Free law is still free, but at a price
CanLII’s first phase of tools enable a scope of access that is defined by both our resources and by the limitations places on us by some courts and governments. Developing the tools required a commercial agreement between CanLII and Lexum Inc., CanLII’s technology supplier, and so our ability to expand the range of what is available is naturally influenced by our ability to pay for the necessary development. Similarly, our ability to expand your insight into our data and the permitted uses of what you see is directly connected to the freedoms we acquire from courts and governments to permit that insight and those uses.
We will get there, but in the meantime and to ensure that free law remains free, there will always be a scope of access available to all at no charge.
“ReInvent Law” ain’t got nothing on Canada
If you have been paying attention to the amazing work being done by the people behind ReInvent Law, you know that law=data and law+tech+design+deliveryTM is the equation that defines the future of legal information, legal education and the use of technology to increase access to legal services and to justice.
The developer tools and unbundled access to CanLII data are only pieces of the puzzle, but they are pieces generally unavailable anywhere else. To the best of my knowledge, in no other country can you access national and subnational metadata to all current court and legislative information for free from a single supplier.
Now that you can, what will you do with it?
 See, for example, http://about.telus.com/publicpolicy/tariffs/docs/CRTC180_1/Carrier_5/c-215.pdf. Defined at page 3; rates at page 21.