CANLII and the Quest for Comprehensive Case Law Databases
CanLII now appears to be wallowing in the murky waters of determining what constitutes a "comprehensive" case law database. This question has plagued commercial legal publishers for more than two decades without anyone offering a clear answer. Welcome to the world of legal publishing.
An independent study
According to its press releases, CanLII has made the comprehensiveness of its court collections a priority. But what does that really mean? In an attempt to figure it out, CanLII's Board of Directors has "approved the commissioning of an independent study to support its interest in establishing historical and comprehensiveness coverage targets that will guide CanLII’s policy for Canadian superior and provincial court collections."
It is a given that databases that meet user needs are critical to the future of CanLII. Otherwise, funding by the legal profession will inevitably dry up. Without question, legal researchers prefer to use databases that are complete rather than selective. Clarity with respect to content is also essential. To use any legal database with confidence, legal researchers need certainty as to its scope and depth. By clearly defining the content of its databases, CanLII has thus far set the standard for other legal publishers to follow.
Satisfaction with CanLII Databases
While surveys show a moderate to high level of satisfaction with existing CanLII case law databases, CanLII has not yet established a secure place in the field of Canadian legal research. In terms of its evolution, CanLII has only now reached the standard of service offered by Quicklaw more than a decade ago. By this I mean that, like Quicklaw, CanLII has all of the current cases, CanLII has a critical mass of case law online, and the scope and depth of CanLII's databases are constantly being enhanced. As well, both Quicklaw and CanLII have comprehensive collections of current legislation that, in the case of CanLII, are more popular than its case law databases. And yet, this was not enough for Quicklaw by itself to be able to meet the expected competition from the major commercial publishers with their strong mixes of value added and primary information. It will not be enough for CanLII.
However elegantly crafted and presented by the professional surveyors of public opinion, the recent "national client needs studies of professional users" just don't tell the real story. One has only to ask any student at a Canadian law school to be told that CanLII fails to measure up when compared to the services of the commercial law publishers as they exist today. To be a serious player in legal research, CanLII needs to dramatically expand the scope of its databases and offer something that is unique.
A more meaningful and useful exercise might to conduct surveys and focus groups of law students and law professors as to what content would be necessary to make them prefer CanLII over its numerous competitors – Carswell, LexisNexis, Maritime Law Book, and SOQUIJ – in carrying out online legal research. I would also add law librarians and research lawyers to the mix, and obtain the information needed on which to base its decisions on future content development. These are the people who best understand the requirements of legal research, know what is available now, and possibly have ideas as to what is needed for the future. To become a must have instead of a nice to have online service, concrete information from informed users is needed.
Setting aside the question as to whether CanLII should even focus its development on case law databases, I would suggest that the terms of reference used for arriving at the definition of a comprehensive case law database are self limiting. As stated in the announcement, “comprehensiveness” is to be assessed by reference to the following factors:
1. Historical coverage period – establishment of a target start date for coverage that is commensurate with the degree of professional reliance on historical decisions, which date is expected to vary based on court level.
2. Completeness within a coverage period – determine whether a collection must include all decisions, all reported decisions, or meet some other objective.
3. Leading decisions outside the coverage period – define how to identify and collect significant decisions outside the coverage period."
Choice of language
The choice of language in the terms of reference recycles the vocabulary used by the commercial legal publishers to tout the qualities of their case law databases, when comparing them to the databases of their competitors. For example, the common or ordinary meaning of the word "comprehensive" is including all or nearly all elements or aspects of something. It came to be used to describe a database that was not "complete".
Despite best efforts of individual legal publishers, there are many understandable reasons for incomplete databases:
- problems with obtaining access to cases available on one service that are no longer available from the source,
- copyright claims and the threat of litigation by traditional print publishers respecting print law report series,
- the control exercised by SOQUIJ over access to Quebec cases, and/or
- the lack of the will by the publisher to identify and and acquire missing cases identified by means of a database audit.
The word "comprehensive" came into use to describe incomplete databases in the strongest possible terms, creating the impression of completeness, while leaving an "out" for the legal publisher when omissions were identified by users.
The use of the term "historical" is used by legal publishers with limited access to the early case reports. The term suggests that the missing older cases are somehow less important, despite the fact that they may have establish fundamental principles of law on which subsequent cases are based. I doubt that anyone would discuss older cases in the All England Reports in this way. It is noteworthy that the very publishers who downplay their importance, continue to look for every legitimate means of adding these cases to their databases.
The use of the term "leading decisions" is another rationale for being selective. Who selects? becomes the question to be answered. Who decides what not to include? In all likelihood, a database approach will be chosen whereby older cases considered in more recent cases will be added year by year. It is not a bad approach but will still result in databases with limitations when compared to the databases of the commercial legal publishers. Years ago, I reissued the Civil Practice volumes of the Canadian Abridgment which included only the leading decisions as determined by the authors of the annual practice volumes. The outcry was so great that the volumes had to be reissued once again. The legal research community made it clear that they expected the Canadian Abridgment to include a summary of every reported case. A similar expectation now exists for case law databases – the user expects them to include every accessible case.
Just do it all
I would suggest very different terms of reference for study. Rather than spending time determining how many angels can dance of the head of a pin (i.e, how many cases constitute a comprehensive database), use CanLII's resources to determine how to fund and build complete case law databases. Finding ways to rationalize how to limit their scope through another study is a waste of time, money and effort. In the Canadian market for case law databases, the only missing case law database is one that is truly a complete collection of case law, from every province and every court, something the commercial legal publishers have not achieved.
In reality, CanLII is just another legal publisher trying to find its way in the world. To survive and flourish, it needs unique content to justify continuing to receive financial support from the legal profession. Like every legal publisher, CanLII needs a steady revenue stream, whether in the form of a grant, for a fee for service, or for payment on subscription for access to case law databases. To obtain secure funding on an ongoing basis, CanLII needs to provide something of value, content actually needed by legal researchers and the legal profession, that is not available from another source. As it is, the commercial legal publishers offer more free access to content to judges, law professors and law students, than does CanLII. Being "free" is just another marketing scheme that won't cut it over time. Everything costs money, however obtained.
In building complete case law databases, funding is the issue. As I have suggested on other occasions, one option might be to work with the various federal and provincial archives to create comprehensive case law databases for the public archives, and provide access to the public on their behalf. At present, the archives have fallen short on their mandates to collect and preserve case law databases, which remain primarily in private hands and are frequently stored off shore. If CanLII proposes to focus on developing its case law databases, and not pursue other options like secondary content, it should at the very least try to add real value to what is currently available. Just a thought.