“[T]here is a need to unbundle CanLII’s data if the full potential of innovation in legal information is to be realized.”
“[T]hrough 13 [now 19] years (from concept to today) and over $20M [now $40M] of investment from Canadian law societies through the Federation of Law Societies of Canada, [CanLII] 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.”
Nearly 6 years ago, as President and CEO of CanLII, I wrote those words here on Slaw when introducing the CanLII API. I believed then, as I do now, that CanLII’s role must evolve from retail supplier to clearinghouse; from enabler of access to enabler of innovation.
Nearly 5 years ago, again on Slaw, when announcing the then-forthcoming CanLII Connects and drive to increase the availability of high quality secondary source material on CanLII, I wrote:
“As a public site, this law society investment in the most comprehensive free-to-use legal information resource in Canada concurrently serves up perhaps the most significant contribution to access to justice ever made by the legal profession.
Why stop there?”
Indeed. Why stop there?
Around 3 years ago, when I was no longer CEO of CanLII but still over a year away from operating a commercial legal research service (vLex Canada, which, by the way includes free access to primary law through vLex Canada Open), I wrote a two-part (Part 1, Part 2) series (yes, here on Slaw) that sought to make the case that “free access to law” can’t only mean free to read, it has to mean more.
Why that was the case, and what “more” meant, was made abundantly clear by the announcement that the Legal Innovation Lab at Harvard Law School library had partnered with a legal tech start-up (Ravel, since acquired by LexisNexis) to digitize and release the entirety of Harvard’s published case law collection – some 40 million pages – for research and innovation purposes. This effort to remove the barriers to accessing a nation’s legal history promised to turbo-charge an environment in which investment and innovation with primary law powered by several options for wholesale availability was already running laps around Canada. With competition coming from the likes of Bloomberg, other international players, next-tier national competitors Casemaker and Fastcase, and startups like ROSS, Ravel, Lex Machina and Casetext with tens of millions in funding, major players like Lexis and Westlaw introduced their leading edge platforms years ahead of Canadian roll-outs.
The pace of innovation in US legal information has only accelerated and will only accelerate. Meanwhile, in Canada, the complacency I cautioned against in early 2013 remains. Innovation with Canadian primary law is mostly relegated to niche areas and our largest commercial suppliers comfortably deliver service offerings years behind what their parent companies deliver in the U.S.
CanLII must change the status quo.
Enabling the legal profession and the public’s ability to read the law is the battle that CanLII has fought and won over the past 19 years.
It should declare victory and take on the next challenge. Adding secondary source texts is very good, but incremental and woefully inadequate in light of what could be achieved by allowing the benefits of the legal profession’s $40M investment in CanLII to multiply.
In an era when innovation beyond a given publisher’s desires, funding or abilities is at our fingertips, CanLII should lead Canada forward into the next level of access to law.
The Harvard digitization effort was concluded within 2 years, and throughout 2018, both Harvard and Lexis have developed toolkits to enable bulk (for academic only) and API (for academic and commercial purposes) access to the entirety of the collection. In a recent interview, project director Adam Zeigler mentioned that the project is already delivering on all its promise as over 100 requests for bulk access by academic researchers came in within the first week of the corpus availability.
Sure there were some strings attached to the deal, most notably a period of commercial exclusivity, but that expires fully in a few years and Ravel/Lexis remain obligated during the exclusivity period to enable a reasonably level of free public access to the content (500 cases per user per day).
CanLII and the law societies have the ability to do even more for Canada than Harvard and Ravel/Lexis have done for the United States. All without the law societies spending even one additional dollar, and, in fact, reducing the amount currently spent.
CanLII content is already digital and the law societies that fund it are state actors.
This should be easy.
Now consider adding on the financial support from innovators across corporate, law firm, academic and related public interest groups like legal aid and pro bono networks, and possibly even from the recently announced federal funding support for social enterprise, and the payoff for Canada would be extraordinary.
Consider that CanLII was created in part to guard against the prospect of a digital legal research monopoly. In the late 1990’s QuickLaw (now LexisNexis Canada) was really the only digital platform that mattered, and the law societies briefly toyed with the idea of buying it. The threat of national monopoly faded when Westlaw pulled its content from the QuickLaw platform and offered competing services through Carswell and then ultimately under their own banner. CanLII’s march to develop a competing primary law service offered some discipline to the market, but its impact has now been fully baked in for a several years, and, as noted, we still see the Big 2 wait years to bring their latest innovations from the U.S. to Canada.
CanLII should not find satisfaction in being the junior member of a lumbering legal publishing oligopoly when it has to potential to trigger a new big bang in access to justice orders of magnitude beyond that achieved in its first twenty years.
The status quo delivers diminishing returns year over year at increasing expense to the legal profession and public:
- higher cost of operating CanLII (for example, Ontario lawyers alone will contribute $1.78 million in 2019),
- higher costs of commercial services, and
- a legal innovation community shut out from bulk access to the court and tribunal decisions necessary to build competitive alternatives or even simply the tools, services and other resources needed to improve citizen engagement with the justice system.
So why a cooperative?
Unlike the U.S., where case law falls clearly in the public domain, Canadian legal publishers and legal technology companies are constrained to a degree by crown copyright, and to a degree by written and unwritten agreements. Accordingly, even if CanLII wanted to become a wholesale provider today, it can’t. Going back again to a 4 year old post on Slaw, I previously offered this explanation on CanLII’s behalf:
“[S]ome courts and Queen’s Printers are more restrictive than others and over the course of CanLII’s development since 2000, some of these courts have imposed restrictive terms on CanLII and limited what it can do and what it can authorize others to do with the content they provide or otherwise permit CanLII to publish on its site.”
The point? To empower CanLII to provide third-party access to the primary law under its control, CanLII would need to renegotiate its relationship with each individual court. This is a step that neither CanLII, nor, frankly, court staff is keen to do, largely because there is no template or shared understanding across courts and publishers as to what is or isn’t acceptable when it comes to enabling case law access to parties with whom the courts don’t have relationships.
Moreover, these same courts are largely bereft of procedures, roadmaps or resources to develop direct relationships and trust with every possibly user. So to my mind, the only path forward to advancing Canadian legal information from a “read-only” to a “create” paradigm that improves access, understanding and brings a much-needed competitive discipline to the Canadian commercial legal information market, is to move the CanLII collection into a cooperative in which each member has equivalent access rights and equivalent obligations vis-à-vis the courts that supplied the content. Members would ultimately include any law society, law school, law firm, company or other entity with the desire and capacity to create value through engagement with the primary law and who is prepared to fund the co-operative’s operations and abide by its rules.
CanLII can make this happen. Its dominant position as a legal resource, the degree to which courts and tribunals rely on it (indeed, many do not publish their own decisions and instead direct the public to CanLII), the political influence of the law societies, the depth of its Board and its operational expertise as owner of Lexum, means it need only decide to do this and it can make it this a reality.
In a narrow sense, it’s already doing it.
The full CanLII collection has for years been copied, dissected and re-posted in unique configurations by CAIJ, the library system of the Barreau du Quebec, to create services integrated with their other resources and tailored to their market. Additionally, Lexum has always sought to commercialize its privileged position as CanLII supplier, whether through promoting commercial access to content or, more recently access to machine learning models developed from mining the CanLII database.
However, as any “outside” innovator has learned in the past few years, CanLII has declined nearly all attempts at engagement, and notwithstanding the irrefutable public good it delivers as a research site, the organization has become troublingly opaque. Its “About Page” hasn’t been updated since 2013 and the last published CanLII strategic plan expired in 2014. CanLII’s stakeholders, be they the courts, the law societies, or the lawyers whose dues fund CanLII’s operations are not well served by insularity of operations or insularity of ambition.
Six years ago, when serving as CanLII’s CEO I sounded the alarm about the potential negative effects on innovation if CanLII and the law societies did not expand the circle of who could build on unbundled Canadian legal information. The pace of legal innovation in the U.S. is already years ahead of Canada and the gap is rapidly increasing.
It’s been 10 years since the law societies last expressed their collective view of CanLII’s purpose and their view of the appropriate governance structure suited to that purpose.
It’s time for the law societies to look again.
It’s time for the law societies to widen the circle.