The 15th annual ODR conference, which took place in The Hague. on May 23rd and 24th 2016, addressed the very a propos topic that is: “Can ODR Really Help Courts and Improve Access to Justice?” As we’ve discussed in previous posts, more and more courts (e.g. British Columbia’s Civil Resolution Tribunal, tribunals (e.g. Ontario’s proposed online Administrative Monetary Penalty System), and other public bodies are incorporating online dispute resolution tools, mechanisms, and practices into their processes.
Of course, incorporating ODR mechanisms into a Court or a tribunal’s processes implies that said court or tribunal has migrated some, if not most, of these processes into a digital environment. In other words, ODR practices can only be successfully incorporated into a court’s processes if the court makes a complete or partial shift towards becoming a ecourt, a task that the city of Quebec is currently undertaking. However, as we will see across our next few posts, shifting towards a more technologically driven court process doesn’t limit itself to the adoption of efiling, eaccess, and ODR applications, it also implies that we redefine roles, responsibilities and practices. It further forces us to dig up forgotten debates that were never really settled regarding property, security, and liability issues associated with court documents and records.
For example, according to section 66 of Quebec’s Code of civil procedure:
“Court offices provide clerical services to the court they serve, manage the information and documents required for the operation of the court and have custody of court registers, records, orders and judgments. They also manage the fees and costs prescribed by regulation and are responsible for the preservation of court records.”
These same court offices are therefore responsible for allowing members of the public to « have access to court records and entries in the registers of the courts », as per section 11 of the Code.
In fact, few would argue with the notion that courts have a general duty to make court records accessible to the public, a point that the Supreme court has made abundantly clear over the last few decades, and that is intimately linked to our fundamental “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. As stated in Canadian Broadcasting Corp. v. New Brunswick (Attorney General) :
“The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place.”
In allowing eaccess to court records, we are therefore, in theory, abiding by the spirit of the open court principle. However, notwithstanding the privacy issues raised by this technological shift, eaccess implies transforming the role of court offices from that of a simple custodian of court records to that of a publisher of sorts. In fact, we would argue that eaccess to court records implies a “communication to the public by telecommunication” as defined in section 2.4(1.1) of the Copyright Act:
“communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public”
Since such a communication of a work is considered the sole right of a copyright holder under section 3(1)f) of the Copyright act, can court offices legally provide eaccess to court records? Of course the answer to this question depends on whether there is copyright in court records or, rather, in the documents they contain.
According to the Canadian Judicial Council, the term “court record” “is used to include pleadings, orders, affidavits etc; that is to say, documents created by the parties, their counsel, or a judicial official or his/her designate”. In keeping with this broad definition, if said documents are “created” by these individuals, they can – if deemed original – constitute a work under the Copyright Act. This fact has been argued in Waldman v. Thomson Reuters Corporation with regard to court documents such as motions. Copyright could also exist with regards to evidence, specially – and somewhat ironically – in a copyright case where the evidence is a work for which the authorship is a point of contention. Last, but not least, copyright could exist in orders and other documents drafted by the court. Although this remain a point of contention within the legal community, there are decisions that recognize copyright in a court’s written findings (in which case who owns that copyright is also a point of contention).
For these reasons, courts around the world have modified their practices to ensure that copyright material found in court files is not exploited in a manner that impedes on the copyright owner’ rights. For example, Rule 2.504 of the 2015 California Rules of Court states that:
The court must give notice of the following information to members of the public accessing its records electronically, in any manner it deems appropriate: […]
(2) That copyright and other proprietary rights may apply to information in a case file, absent an express grant of additional rights by the holder of the copyright or other proprietary right. This notice must advise the public that:
(A) Use of such information in a case file is permissible only to the extent permitted by law or court order; and
Any use inconsistent with proprietary rights is prohibited.
But this doesn’t solve the problem as to whether the courts have a right to communicate copyrighted material to the public. With regards to documents prepared by the court, even if copyright were recognized, the problem remains theoretical since case law is to be published. Quebec has even created a public body, the SOQUIJ, to ensure that fact. However, as it pertains to other court documents, the question remains.
As stated in Vallance v. Gourlay-Vallance: “government should not be in the business of publishing public documents […] government is simply required to make such documents available”. If such is the case, shouldn’t the court heed its own advice? This is not to say that we believe that eaccess should be made impossible, simply that it implies either adding exceptions to the Copyright Act, submitting a release to any copyright holder who wishes to file his work with the courts, or establishing that, from now on, “made public” and “publish” will have the same meaning…