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Recently, LexUM, SAFLII and friends commenced a global study on Free Access to Law. It poses the pertinent question: is free access to law here to stay? The goal of the project is to produce a best-practices handbook, collect open-access case studies, and publish an online library on the subject.  The ultimate aim of all these activities is to enable future free access to law projects to choose best practices and adapt to local contexts that may have more in common than it initially appears.

This April we kicked off the project in the beautiful African bush with three days of introspection, sharing (for the teenage LIIs) and learning (for the toddler LIIs).

The project seeks to study and link two central concepts – the concept of success of a free access to law project and the concept of sustainability. Ivan Mokanov, who wrote the original project proposal, puts forward a simple thesis that relates the two:

By making law freely available, a legal information institute (LII) produces outcomes that benefit its target audience, thereby creating incentives among the target audience or other stakeholders to sustain the LII’s ongoing operations and development.

Linking free delivery of legal information to core benefits such as  support for the rule of law, open and accountable government and the importance of reducing insecurity in economic life can be difficult. Defining the subtler aspects of success thus involves exploration and new methodologies.

In a broad definition, sustainability is seen as the ability to deliver services that provide sufficient value to their target audience, so that either that audience or other stakeholders acting on its behalf choose to fund the ongoing operation and evolution of that service.

The project looks at a sustainability chain:

The Sustainability Chain Cycle

The words and brilliant logic of fictional psychopath Hannibal Lecter to Clarice Starling in The Silence of the Lambs  might serve as a guide to the sustainability chain:

First principles, Clarice. Simplicity. Read Marcus Aurelius. Of each particular thing ask: what is it in itself? What is its nature? What does he do, this man you seek?

The Need
Start with a need or a problem which a LII has to address. An often seen example in my part of the world is a country completely lacking any structures for providing legal information, even commercial print publishers. Sometimes, too, legal information is available, and sometimes freely so, via official printers, government bodies or other creators of the information, but that availability does not necessarily equate to usability.

Different stages of development highlight different needs, and the sustainability chain gives equal weight to addressing each. A free access to law project is just as successful if it manages to provide up=to-date information to judges who until recently applied the law from their 1970s law school textbooks as it is if it provides a state-of-the-art point in time legislation service to practicing lawyers. There seems to be an agreement that, as it grows through its stages of development -- as Tom Bruce kindly defined them: establishment, incubation and “going concern” -- a sustainable LII closes a chapter of success and continues on to respond to a new need within its target audience.

The Environment
The context in which an LII operates is equally important in determining the success and subsequently the sustainability of a free access to law operation. An LII will thrive in an environment that provides rich data sources, and is amenable to and capable of reform and change, with a policy and legal framework favourable to the free dissemination of legal information. To bring this to the nitty-gritty level – a free access to law project needs support all the way from the political top down to the secretary and clerk of the court.

An important environmental indicator is the availability of an infrastructure to support circulation of information. LIIs operating in developing countries often face the roadblock of lack of technology or lack of knowledge of the use of technology at the source. While computers have made their way into most judges' chambers and courtrooms, most are not connected to the Internet, or if they are, the connections are so slow as to bar convenient use. A judge once relayed that in the rural areas, courts, well-computerized using donor money, are unable to make use of the technology due to lack of electricity. It is not unheard of a clerk or court secretary to delete judgments from a computer once they have been printed, thus leaving one single hard copy of a judgment for the court files.

Developing countries’ LIIs, as aptly pointed by my colleague Kerry Anderson in a post below, often involves getting information from this:

The Gutenberg Press into this Data

This inevitably begs a couple or more open questions for a "toddler" LII:

Who should foot the bill for the expensive digitization of legal material?

It has been the norm since the Middle Ages that the rulers of the land make the laws known to the subjects and citizens (I tend to include lawyers and government officials in the plebs) . But -- assuming that it even recognizes this obligation, as the government of South Africa does -- how does a cash-strapped government of a developing country fulfill its obligation to do so?  Donors donating directly to government to set up law reporting or print legislation? Donors via support for a LII? The interested public via support for a LII?

Would a successful strategy for a LII be to, first and foremost, address the policy and technology issues of provision of digital information?

Digitizaion of print materials and/or manual capturing of metadata, for example, cannot be deemed a successful strategy in the long run - it is simply uneconomical to continue to do so past a certain stage. Engaging stakeholders in education of use of technology or development of IT solutions to support workflows for delivering of judgments or passing legislation may be a way of dealing with issues of digitizing and automating delivering of law to the public. Standards of preparation of legal material, such as the ones developed by the Canadian Citation Committee or the endeavours of the Africa i-Parliaments project, adopted by all originators of legal information in a particular jurisdiction, will ease its dissemination and re-use. Campaigning for the passing policy or legislation, such as the PSI Directive, may be another strategy for a LII to enhance the efficacy of its operations.

How does an NGO engage with government over the digitization strategy?

The Ability

The need is recognized, we have a favourable environment for operations. Now, how does a lawyer, frustrated by the lack of user-friendly legal resources, with little to no know-how, convert the circumstances to a successful and sustainable free access to law project?

An LII needs to have the ability to respond to the need for legal information on at least two levels: organizational and technological.   At the  organizational level, a free access to law project needs to have organizational structure and support that is responds correctly to the context in which the project operates.

What are the benefits of the different organizational structures? Are they dependent on the development stage of an LII?

Among the members of the project’s workshop group, there seemed to be an agreement on the need for any new access to law project to possess adequate technology (in general),  and to possess or have access to legal information technology and expertise. The right technological and information-standards choices for particular environments are crucial to the correct response to the audience’s need.  While this carries a positive connotation, an emerging free access to law project needs to learn also to respond to user feedback in a measured way, and sometimes to even say NO.

Availability of Financial Resources

This couple-of-hundred-thousand-dollar question is one that every LII – from babies to teenagers – asks every financial cycle. Free access to law is quite expensive. While the product can be free, as in free beer, the process of creating the value and benefit to the audience can be quite expensive.

The ability of any LII to financially plan a few years ahead is crucial to the success of the project. It is important to have an audience that has identified value in a free access to law project – be it lawyers (CanLII and to an extent AustLII), or in addition to the preceeding, advertisers and aligned services (LII), or government (Kenya Law Reports), or international donors (SAFLII) , or individuals and lawyers (OpenJudis). Holding on to an audience and maintaining its willingness to pay relies on maintaining and improving existing product value. It is also crucial that money is spent in the right places.

The Handbook to be produced at the end of this study will identify how successful LIIs allocate budgets, according to value produced and how and who supports creation of specific benefits.

The next 6-8 months
In the next six to eight months the research team consisting of Dorsaf El Mekki (LexUM), Bobson Coulibaly (JuriBurkina, West Africa), Prashant Iyengar (Centre for Internet and Society, India), myself at SAFLII and a number of researchers from Namibia, Uganda, Zimbabwe and Kenya, will endeavour to collect data via interviews, questionnaires, case studies and web statistics on a number of indicators to reinforce the assumptions and prove the hypotheses of the study into free access to law – a study very much needed.

Mariya Badeva-Bright is the Head of Legal Informatics and Policy at the
Southern African Legal Information Institute (SAFLII). She is a
sessional lecturer at the School of Law, University of the
Witwatersrand
, South Africa where she teaches the LLM course in Cyberlaw
and the undergraduate course in Legal Information Literacy.
Ms. Badeva-Bright received her Magister Iuris degree from Plovdiv
University
, Bulgaria and an LL.M degree in Law and Information
Technology from Stockholm University, Sweden.

VoxPopuLII is edited by Judith Pratt.

As a comparative law academic, I have had an interest in legal translation for some time.  I'm not alone.  In our overseas programs at Nagoya University, we teach students from East and Central Asia who have a keen interest in the workings of other legal systems in the region, including Japan. We would like to supply them with an accessible base of primary resources on which to ground their research projects. At present, we don't.  We can't, as a practical matter, because the source for such material, the market for legal translation, is broken at its foundation.  One of my idle dreams is that one day it might be fixed. The desiderata are plain enough, and simple to describe. To be useful as a base for exploring the law (as opposed to explaining it), I reckon that a reference archive based on translated material should have the following characteristics:

  • Intelligibility Text should of course be readable (as opposed to unreadable), and terms of art should be consistent across multiple laws, so that texts can safely be read together.
  • Coverage A critical mass of material must be available. The Civil Code is not of much practical use without the Code of Civil Procedure and supporting instruments.
  • Currency If it is out of date, its academic value is substantially reduced, and its practical value vanishes almost entirely. If it is not known to be up-to-date, the vanishing happens much more quickly.
  • Accessibility Bare text is nice, but a reference resource ought to be enriched with cross-references, indexes, links to relevant cases, the original text on which the translation is based.
  • Sustainability  Isolated efforts are of limited utility.  There must be a sustained incentive to maintain the archive over time.

In an annoying confluence of market incentives, these criteria do not travel well together.  International law firms may have the superb in-house capabilities that they claim, but they are decidedly not in the business of disseminating information.  As for publishers, the large cost of achieving significant coverage means that the incentive to maintain and enhance accuracy and readability declines in proportion to the scope of laws translated by a given service.  As a result, no commercial product performs well on both of the first two criteria, and there is consequently little market incentive to move beyond them and attend to the remaining items in the list. So much for the invisible hand.

When markets fail, government can provide, of course, but a government itself is inevitably driven by well-focused interests (such as foreign investors) more than by wider communities (divorcing spouses, members of a foreign labor force, or, well, my students).  Bureaucratic initiatives tend to take on a life of their own, and without effective market signals, it is hard to measure how well real needs are actually being met.  In any case, barring special circumstances such as those obtaining within the EU, the problem of sustainability ever lurks in the background.

Unfortunately, these impediments to supply on terms truly attractive to the consumer are not limited to a single jurisdiction with particularly misguided policies; the same dismal logic applies everywhere (in a recent article, Carol Lawson provides an excellent and somewhat hopeful review of the status quo in Japan).  At the root of our discomfiture are, I think, two factors: the cookie-cutter application of copyright protection to this category of material; and a lack of adequate, recognized, and meaningful standards for legal translation (and of tools to apply them efficiently in editorial practice). The former raises an unnecessary barrier to entry. The latter saps value by aggravating agency problems, and raises risk for both suppliers and consumers of legal translations.

I first toyed with this problem a decade ago, in a fading conference paper now unknown to search engines (but still available through the kind offices of the Web Archive). At the time, I was preoccupied with the problem of barriers to entry and the dog-in-the-manger business strategies that are they foster, and this led me to think of the translation conundrum as an intractable, self-sustaining Gordian knot of conflicting interests, capable of resolution only through a sudden change in the rules of the game. Developments in subsequent years, in Japan and elsewhere, have taught me that both the optimism and the pessimism embedded in that view may have been misplaced. The emergence of standards, slow and uncertain though it be, may be our best hope of improvement over time.

To be clear, the objective is not freedom as in free beer.  Reducing the cost of individual statutory translations is less important than fostering an environment in which (a) scarce resources are not wasted in the competitive generation of identical content within private or protected containers; and (b) there is a reasonably clear and predictable relationship between quality (in terms of the list above) and cost. Resolving such problems are a common role for standards, both formal and informal.  It is not immediately clear how far voluntary standards can penetrate a complex, dispersed and often closed activity like the legal translation service sector -- but one need not look far for cases in which an idea about standardization achieved acceptance on its merits and went on to have a significant impact on behavior in a similarly fragmented and dysfunctional market.  There is at least room for hope.

In 2006, as part of a Japanese government effort to improve the business environment (for that vocal group of foreign investors referred to above), an interdisciplinary research group in my own university led by Yoshiharu Matsuura and Katsuhiko Toyama released the first edition of a standard bilingual dictionary for legal translation (the SBD) to the Web. Aimed initially at easing the burden of the translation initiative on hard-pressed government officials charged with implementing it, the SBD has since gone through successive revisions, and recently found a new home on a web portal providing government-sponsored statutory translations. (This project is one of two major translation initiatives launched in the same period, the other being a funded drive to render a significant number of court decisions into English).

The benefits of the Standard Bilingual Dictionary are evident in new translations emerging in connection with the project. Other contributors to this space will have more to say about the technology and workflows underlying the SBD, and the roadmap for its future development. My personal concern is that it achieve its proper status, not only as a reference and foundation source for side products, but as a community standard. Paradoxically, restricting the licensing terms for distribution may be the simplest and most effective way of disseminating it as an industry standard.  A form of license requiring attribution to the SBD maintainers, and prohibiting modification of the content without permission, would give commercial actors an incentive to return feedback to the project.  I certainly hope that the leaders of the project will consider such a scheme, as it would help assure that their important efforts are not dissipated in a flurry of conflicting marketplace "improvements" affixed, one must assume, with more restrictive licensing policies.

There is certainly something to be said for making changes in the way that copyright applies to translated law more generally.  The peak demand for law in translation is the point of first enactment or revision. Given the limited pool of translator time available, once a translation is prepared and published, there is a case to be made for a compulsory licensing system, as a means of widening the channel of dissemination, while protecting the economic interest of translators and their sponsors.  The current regime, providing (in the case of Japan) for exclusive rights of reproduction for a period extending to fifty years from the death of the author (Japanese Copyright Act, section 51), really makes no sense in this field.  As a practical matter, we must depend on legislatures, of course, for core reform of this kind.  Alas, given the recent track record on copyright reform among influential legislative bodies in the United States and Europe, I fear that we may be in for a very long wait.  In the meantime, we can nonetheless move the game forward by adopting prudent licensing strategies for standards-based products that promise to move this important industry to the next level.

Frank Bennett is an Associate Professor in the Graduate School of Law at Nagoya University.

Vox PopulLII is edited by Judith Pratt

On the 30th and 31st of October 2008, the 9th International Conference on "Law via the Internet"met in Florence, Italy. The Conference was organized by the Institute of Legal Information Theory and Techniques of the Italian National Research Council (ITTIG-CNR), acting as a member of the Legal Information Institutes network (LIIs). About 300 participants, from 39 countries and five continents, attended the conference.   The conference had previously been held in Montreal, Sydney, Paris, and Vanuatu.

The conference was a special event for ITTIG, which is one of the institutions where legal informatics started in Europe, and which has supported free access to law without interruption since its origin. It was a challenge and privilege for ITTIG to host experts from all over the world as they discussed crucial emerging problems related to new technologies and law.

Despite having dedicated special sessions to wine tasting in the nearby hills (!), the Conference mainly focused on digital legal information, analyzing it in the light of the idea of freedom of access to legal information, and discussing the technological progress that is shaping such access. Within this interaction of technological progress and law, free access to information is only the first step -- but it is a fundamental one.
Increased use of digital information in the field of law has played an important role in developing methodologies for both data creation and access. Participants at the conference agreed that complete, reliable legal data is essential for access to law, and that free access to law is a fundamental right, enabling citizens to exercise their rights in a conscious and effective way. In this context, the use of new technologies becomes an essential tool of democracy for the citizens of an e-society.

The contributions of legal experts from all over the world reflected this crucial need for free access to law. Conference participants analysed both barriers to free access, and the techniques that might overcome those barriers. Session topics included:

In general, discussions at the conference covered four main points. The first is that official free access to law is not enough. Full free access requires a range of different providers and competitive republishing by third parties, which in turn requires an anti-monopoly policy on the part of the creator of legal information. Each provider will offer different types of services, tailored to various public needs. This means that institutions providing legal data sources have a public duty to offer a copy of their output -- their judgments and legislation in the most authoritative form -- to anyone who wishes to publish it, whether that publication is for free or for fee.

Second, countries must find a balance between the potential for commercial exploitation of information and the needs of the public. This is particularly relevant to open access to publicly funded research.

The third point concerns effective access to, and re-usability of, legal information. Effective access requires that most governments promote the use of technologies that improve access to law, abandoning past approaches such as technical restrictions on the reuse of legal information. It is important that governments not only allow, but also help others to reproduce and re-use their legal materials, continually removing any impediments to re-publication.

Finally, international cooperation is essential to providing free access to law. One week before the Florence event, the LII community participated in a meeting of experts organised by the Hague Conference on Private International Law's Permanent Bureau;  a meeting entitled “Global Co-operation on the Provision of On-line Legal Information.” Among other things, participants discussed how free, on-line resources can contribute to resolving trans-border disputes. At this meeting, a general consensus was reached on the need for countries to preserve their legal materials in order to make them available. The consensus was that governments should:

  • give access to historical legal material
  • provide translations in other languages
  • develop multi-lingual access functionalities
  • use open standards and metadata for primary materials

All these points were confirmed at the Florence Conference.

The key issue that emerged from the Conference is that the marketplace has changed and we need to find new models to distribute legal information, as well as create equal market opportunities for legal providers. In this context, legal information is considered to be an absolute public good on which everyone should be free to build.

Many speakers at the Conference also tackled multilingualism in the law domain, highlighting the need for semantic tools, such as lexicons and ontologies, that will enhance uniformity of legal language without losing national traditions. The challenge to legal information systems worldwide lies in providing transparent access to the multilingual information contained in distributed archives and, in particular, allowing users express requests in their preferred language and to obtain meaningful results in that language. Cross-language information retrieval (CLIR) systems can greatly contribute to open access to law, facilitating discovery and interpretation of legal information across different languages and legal orders, thus enabling people to share legal knowledge in a world that is becoming more interconnected every day.

From the technical point of view, the Conference underlined the paramount importance of adopting open standards. Improving the quality of access to legal information requires interoperability among legal information systems across national boundaries. A common, open standard used to identify sources of law on the international level is an essential prerequisite for interoperability .

In order to reach this goal, countries need to adopt a unique identifier for legal information materials. Interest groups within several countries have already expressed their intention to adopt a shared solution based on URI (Universal Resource Identifier) techniques. Especially among European Union Member States, the need for a unique identifier, based on open standards and providing advanced modalities of document hyper-linking, has been expressed in several conferences by representatives of the Office for Official Publications of the European Communities (OPOCE).

Similar concerns about promoting interoperability among national and European information systems have been aired by international groups. The Permanent Bureau of the Hague Conference on Private International Law is considering a resolution that would encourage member states to "adopt neutral methods of citation of their legal materials, including methods that are medium-neutral, provider-neutral and internationally consistent." ITTIG is particularly involved in this issue, which is currently running in parellel with the pan-European Metalex/CEN initiative to define standards for sources of European law.

The wide discussions raised during the Conference are collected in a volume of Proceedings published in April 2009 by European Press Academic Publishing - EPAP.

-- E. Francesconi ,G. Peruginelli

Ginevra Peruginelli

Ginevra has a degree in law from the University of Florence, a MA/MSc Diploma in Information Science awarded by the University of Northumbria, Newcastle, UK and a Ph.D. in Telematics and Information Society from the University of Florence. Currently she is a researcher at the Institute of Legal Theory and Techniques of the Italian National Research Council (ITTIG-CNR). In 2003, she was admitted to Bar of the Court of Florence as a lawyer. She carries out her research activities in various sectors, such as standards to represent data and metadata in the legal environment; law and legal language documentation; and open access for law.

Enrico Francesconi

Enrico is a researcher at ITTIG-CNR. His main activities include knowledge representation and ontology learning, legal standards, artificial intelligence techniques for legal document classification and knowledge extraction. He is a member of the Italian and European working groups establishing XML and URI standards for legislation. He has been involved in various projects within the framework programs of DG Information Society & Media of the European Commission and for the Office for Official Publications of the European Communities.

VoxPopuLII is edited by Judith Pratt