CanLII’s Future as a Canadian Primary Law Cooperative
“[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.
A brief addendum to a long post: CanLII’s copyright advocacy underscores the necessity and urgency of transitioning CanLII into a primary law cooperative.
My Slaw post was written and submitted for publication on November 26th and as such I was unaware of these efforts prior to learning about a December 6th blog post (1) in which CanLII described the important and admirable advocacy work it has been doing in support of open access to law.
Consistent with the theme of my post, this advocacy describes a hamstrung, underperforming and fragile legal innovation and access to justice context in Canada, in which what is possible is not achievable in the face of insufficient and fettered access to primary legal materials, and in which what has been achieved is imperiled by the potential of increased restrictions.
In submissions to a Parliamentary committee (2), as well as in an application seeking leave to intervene in an upcoming matter before the Supreme Court of Canada (3), CanLII highlighted the need and value of open access to law, and the real and potential harms that flow from an unduly restrictive Crown Copyright regime concerning primary legal materials like court and tribunal decisions, and legislative materials.
To Members of Parliament, CanLII argued as follows:
“CanLII has direct knowledge that several Canadian startups interested in developing [innovative] solutions were discouraged due to the lack of access to data and have abandoned the legal sphere altogether. Crown copyright is a barrier to widespread access to this important data and has therefore impeded innovation in the legal field. It is important to overcome this obstacle to allow for more innovation at a time when delays and costs are impeding access to justice, and where it is generally accepted that “as much as 70%-90% of legal needs in society go unmet”.
This same message was advanced to the Supreme Court of Canada in its application for leave to intervene. Additionally, the leave application stated as follows:
“CanLII is particularly uniquely positioned to make submissions on the benefits open access to legal information provides to Canadians of limited means, as well as researchers and new businesses who have limited financial resources, and conversely how broad interpretation of section 12 [of the Copyright Act] may inhibit access to justice, advancements in legal research and thinking, and innovation.”
Finally, CanLII, speaking alongside the Federation of Law Societies of Canada and, together, on behalf of all Canadian law societies, flatly states that increased cost of operations could impact its very existence:
“Should CanLII be forced to pay charges or fees to collect or publish primary source materials or be exposed to that possibility, it is highly likely that CanLII would be forced to discontinue operations. The same would be true if section 12 of the Copyright Act was ever invoked to impose non-monetary restrictions on the access to, and use of, these materials.”
If the law societies insist on a CanLII that remains focused solely on providing user access to content, they not only become sources of the very restrictions they decry to Parliament and the Supreme Court, but they deny themselves the opportunity to grow and strengthen CanLII through inviting participation as members of equal standing other organizations willing to fund CanLII to its fullest potential.
1. https://blog.canlii.org/2018/12/06/update-on-recent-policy-work/
2. https://qweri-demo.lexum.com/w/canlii/DOC2
3. https://qweri-demo.lexum.com/w/canlii/DOC1
CanLII in regard to governments taking over the A2J problem with or without law society co-operation: Very compatible with what Colin Lachance proposes for CanLII, is an additional, much empowering function it could perform by being the foundation for an adequate law societies’ response and solution to the access to justice (A2J) problem. So far their response has been merely cosmetic, i.e.¸ it doesn’t involve any attempt to solve the problem. But provincial governments can now be expected to make their own attempts at a solution whether or not Canada’s law societies consent or participate—see, “The Gloomy Future of Access to Family Justice in British Columbia: Outcomes of the Law Society’s 2018 Annual General Meeting,” by John-Paul Boyd (Slaw, December 7, 2018), which refers to the recent changes made to B.C.’s Legal Professions Act, and John-Paul comments: “The amending statute clearly signals government’s intention to allow non-lawyers to practice law, and my fundamental concern on this point is that if we fail to embrace the inevitable and regulate the extent to which non-lawyers practice law, government will do it for us.”
That makes necessary law societies’ re-taking the initiative by leading the response to the A2J problem. Otherwise they may have to live with government responses they and Canada’s legal profession as a whole don’t like.
My response and solution is for law societies to be able to sponsor the innovations that would enable lawyers to produce legal services affordably for middle and lower income people. But that requires the creation of a civil service for law societies because law society benchers can’t do it by themselves. That is why the justice system is failing badly. By providing a commercial national legal opinion support service, similar to that provided by LAO LAW at Legal Aid Ontario since July 3, 1979, CanLII can easily finance such a civil service. And if such a support service had a judges’ division, CanLII would be in a much stronger position in bargaining with the courts.
Benchers can no longer competently be both a law society’s Cabinet ministers and also its civil service. They don’t have the necessary expertise, which is why the access to justice problem grows worse and is no closer to a solution than it was ten years ago. And equipping Canada’s law societies with their own civil service to create the other necessary support services, is the only way in which the commercial producers, such as LegalZoom, LegalX, and Rocket Lawyer, can be prevented from taking over the market of the general practitioner, as they are well on their way to doing in the U.S. The same process has started in Canada. And the great many small “startups” that also provide automated legal services direct to the retail market are an equal threat that law societies can’t cope with. Such support services would provide the equivalent “economies of scale” that the auto parts industry provides to automobile manufacturers. Without them, automobiles would be as unaffordable as legal services.
By themselves, our benchers are completely incapable of defending the legal services market now served by general practitioners and the small, unspecialized law firm. They constitute well over half of the membership of a law society. Otherwise the legal profession will drastically shrink not only in the per capita number of lawyers, but also in the position and importance of the legal profession in society. Ryerson University in Toronto, along with the University of Ottawa, Civil Side, created the Law Practice Program for the Law Society of Ontario (because articling jobs were so scarce). That proves that they can also create a civil service for Canada’s law societies. And Ryerson U. can thereby make its application to have a law school (specialized in dealing with the access to justice problem) much more attractive for Ontario government funding. See these articles:
(1) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, pdf., Nov. 7, 2018, 153 pages); at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627;
(2) “Law Society Accountability for the Access to Justice Problem” (SSRN, Nov. 27, 2018, pdf) 26 pages;
at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3291699;
(3) “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (SSRN,
September 30, 2018, 68 pages), at: https://ssrn.com/abstract=3020489;
(4) “Artificial Intelligence: “Will it Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, November 21, 2018), at: http://www.slaw.ca/2018/11/21/artificial-intelligence-will-it-help-the-delivery-of-legal-services-but-hurt-the-legal-profession/; and,
(5) “Law Society Accountability for the Access to Justice Problem” (Slaw, November 28, 2018), at: http://www.slaw.ca/2018/11/28/law-societies-are-the-lynchpin-of-the-justice-system-a-very-obsolete-lynchpin/
Interesting post, Colin. Do you know if there has been any discussion with the judiciary to encourage them to use a creative commons approach to their decisions? Rather than asserting “all rights reserved” and then negotiating with entities like CanLII, they instead could just use a license that ensured that any reproduction preserved the essential elements of the decision and otherwise made copying freely allowed. (Apologies if this is well-trodden ground)
Ken: I’m a bencher in BC and while I don’t necessarily agree with all your statements, I am very open to any suggestions on how we, with our regulator hat on, could make the legal landscape more welcoming to “innovations that would enable lawyers to produce legal services affordably for middle and lower income people”. I agree wholeheartedly that there is a gap between people eligible for legal aid and people who can afford traditional legal services which is not being well served by the profession. I will read the articles you’ve posted above. Feel free to send me anything else you think I should have in mind.
Thank you for your comments and question, Steven.
No apologies necessary. The ground is well-trodden, but only in distressingly small circles, so it’s always worthwhile to revisit.
For most courts across the country, decisions are issued to publishers daily via email. My company, vLex Canada (formerly Maritime Law Book), receives them in the same email as CanLII, Lexis and Thomson Reuters. For some courts, we four are the only publishers on these email missives, for others, additional publishers and agencies also appear on the distribution list. But even among the broadest distribution list, it’s still a small tent.
The current high-water mark for openness concerning judicial rulings is from the 1997 Reproduction of Federal Law Order https://laws-lois.justice.gc.ca/eng/regulations/si-97-5/page-1.html
This Statutory Instrument is premised on the importance of laws being widely known, and permits by way of license (i.e., through exercise of Crown Copyright), reproduction of federal law without charge or permission. Specifically:
*Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.*
Pretty good, wouldn’t you say?
But it’s a right than can only be meaningfully exercised where the subject content is available online.
Statutes and regs, SCC, FCA, FC – all good. But many federal tribunals do no post their information online (some do so, but only through CanLII). And a few among those who do post, invite those seeking to reproduce for commercial purposes to seek explicit permission, and requests are meet with surprise and no real process to address. I’ve previously observed that everyone you ask is authorized to say no, with only the Chief Justice or equivalent of that body authorized to say yes, and no one in the body has a mandate to bring the question to the Chief.
Federal content available only through CanLII cannot be freely copied in bulk due to the CanLII website terms of use, and I am informed that CanLII’s board has determined that it does not wish to facilitate bulk access to its content on a commercial basis. With several courts (e.g., BCPC, the Alberta courts, ONCJ, ONSC) and several important provincial tribunals effectively relying on CanLII to make their law available, better licensing options alone are an inadequate remedy.
Ontario’s Queen’s Printer expressly asserts copyright in statutes, regs and judicial decisions. And like the Federal government, allows (through policy, not statutory instrument) reproduction without permission or charge.
https://www.ontario.ca/page/copyright-information-c-queens-printer-ontario#section-1
However, and you knew this was coming, it’s a right that cannot be easily exercised in respect of the Ontario Court of Justice and Ontario Superior Court, as neither publishes their decisions online. They have, for several years, only been available through CanLII. Moreover, and like most courts across the country, neither the the Queen’s Printer nor the courts have a defined process that would make it possible for an interested party to access current or historical collections.
Over in your neighbourhood, although the B.C. government has extended its open government license to include statutes and regs (and facilitates that access through developer-friendly APIs), the government does not purport to extend application of its policies to the decisions of the courts.
The B.C. superior courts will accept requests for commercial reproduction of their content, and I’m aware of circumstances where that permission has been granted. https://www.courts.gov.bc.ca/Privacy%20Statement.html
As you can imagine, if you are not one of the four with current access, you are in for a long and tough climb.