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Is it good enough for the law to be written for lawyers?

Access to justice, Citizen participation in lawmaking, Collaboration in legal informatics, Crowdsourcing and free access to law, Crowdsourcing and legal information systems, Disruptive legal technology, Interdisciplinary collaboration in legal informatics, Legal publishing, Legal text mining, Legal text processing, Linked Data and law Comments Off

Sep 182014

c.c. BY-SA 3.0. wikipedia.org

If you think that law isn’t written for lawyers, try reading some. It can even start looking normal after a while (say about the length of time it takes to get through law degree). But research on the main street impact of legal language suggests that for most people, the law is likely to be either incomprehensible or very hard to read.

This problem is a focus of a research project which a team of us at ANU and Cornell LII have been addressing over the past months (Eric McCreath (Australian National University, Research School of Computer Science), Wayne Weibel (Cornell University Law School, Legal Information Insitute), Nic Ceynowa (LII), Sara Frug (LII), Tom Bruce (LII) and myself (ANU)). With the generous help of thousands of LII users, as part of a citizen science project, we’ve been collecting data on the readability of law as well as demographic data about the users of law.

If you are concerned about access to law, and many are, the current situation is not really good enough. Whether you tend to ‘human rights’, ‘democratic values’, ‘economic efficiency’, ‘rule of law’ or are just wanting to make sure your hapless minions follow your every command, you’ll be able to think of a good reason why the law should be more accessible (readable) than it is.

Of course the problem has been around for a very long time, and plain language is a standing goal of many legislative drafting offices. Reform efforts have been underway since the middle ages. Certainly legal language has improved considerably, particularly as a result of 19th and 20th century reforms with that goal in mind. Still, the law can’t be said to be readily accessible to the general public, in the sense of its readability.

What has changed that makes the problem more urgent today is that the general public can now at least get to the law. That’s the revolution that’s been achieved by online publishers of the law, including the Free Access to Law Movement and official and commercial law publishers. As the UK’s First Parliamentary Counsel observed last year:

Legislation affects us all. And increasingly, legislation is being searched for, read and used by a broad range of people. It is no longer confined to professional libraries; websites like legislation.gov.uk have made it accessible to everyone. So the digital age has made it easier for people to find the law of the land; but once they have found it, they may be baffled. The law is regarded by its users as intricate and intimidating.

In 2010, the Plain Writing Act was adopted by the US Congress with the aim of improving government writing. Sad to say, the Act itself is no model of plain language. Section, sub-section and paragraph roll on, line after line, provision after convoluted provision. In substance they say not much more than: write clearly so that the public can understand and use what you write. Didn’t anyone see the irony? Then again, reality check, most legislation is never read by the people who vote to make it law. Just to make sure the drawbridge was well and truly up, if you read through to the fine print at the end there is an important rider. What happens if no one can understand what the law is supposed to mean? Well, nothing a judge can do about it. Great aspiration, but …

A sea change could be on the way, though. The Good Law initiative is one great example of efforts to address the complexity and readability of legislation. What is significant is that how we are thinking about legal rules is changing. Official publishers of the law are beginning to talk about the law as if it’s data. The UK National Archives Office has even published an API — Application Programmers Interface (basically a ‘how to’ for developers who want to use the “data”).So now we’re thinking of law as data. And we’re going to unleash computer scientists on it, to do whatever their imaginations can come up with. Bommarito and Katz‘ work on the legal code as a mathematical network is a great example of the virtually infinite possibilities.

Our own research uses the potential of computational technologies in another way. Online legal sites are not just ‘documents’. They are places where people are actively interacting with the law. We used crowd-sourcing to engage with this audience, asking them to rate law on readability characteristics as well as exploring the demographics of who uses the law. Our aim was to develop a labelled dataset that could be used as input to machine learning. “Labelled data” is machine learning gold — hard to get, but if you can you get it, you can use it to make predictions about what human judges would say. In our case we are trying to predict whether a legal sentence will be readable or not.

In the process we learned quite a bit about the audience using the law, and about which law they use. Scouring the Google Analytics data, it became obvious that the law is not equally read. We may all be equal before the law, but the law is not equal before us. Just 37 sections of the US Code account for almost 10% of the page visits to US code pages (there are about 65,000). So a tiny fraction of the Code is being read all the time. On the other hand there are huge swathes of the Code that hardly ever see the light of a back illuminated screen. This is not trivial news. Computer scientists love lists. Prioritised lists get their own special lectures for first year CS students — and here we have a prioritized list. You want to know what law is at the top of your priority list — the users will tell you. If you’re concerned with cleaning up the law code or making it easier to understand, there’s useful stuff here.

Ranking of sections by frequency of readership (on a logarithmic scale)

It will be no surprise that we found that law is harder for just about every part of the community than legal professionals. What was surprising was that legal professionals (including law students), turn out to be a minority of those interested enough to respond, on the LII site at least.

These were just a few of the demographic insights we were able to draw.

On the machine learning front, we were able to show that machine learning can improve on traditional readability metrics in predicting language difficulty (they’ve long been regarded as suspect in application to legal texts anyway). That said, it’s early days and we would like to extend the research we have done so far. There is a lot of potential for future research applying computational techniques to the readability of law. A co-authored publication further describing the research introduced in this article will be presented at this year’s Law Via the Internet Conference being held at the end of September.

But while we’re thinking about it, there are other ways to think about `access’ to law. What if instead of writing the law, it was visualized? You know — like in pictures. Before you storm off in contempt, note this: research is validating that pictures can improve user experience — for example in the contract space, where what your clients think of your contract can impact on your bottom line.

It’s radical enough unleashing computer scientists on legal rules. What might the law look like if we try thinking like designers? ‘User experience’ of legal rules? That one didn’t come up in law school. We’re in some surreally different world at this point. Designers create artefacts for people to use which are optimised for functionality, beauty and other characteristics –- not things that are meant to tell people what to do. ‘User experience’ is their kind of thinking.

As readers of Vox Pop will know, the idea of legal design is starting to get traction. Helena Haapio and Stefania Passera’s great article on legal design covers some of the field. An article they jointly published last year points out some of the benefits of visualization. Earlier this year, we worked on a joint paper exploring the feasibility of automating legal visualization. We were able to demonstrate the automation of visualization of clauses, such as a contract term clause, a liquidated damages clause or a payment clause. Visit our proof of concept site, where you can play with visualizing different options.

OK. So perhaps some of the above reads like we’re on the up-slope of the hype curve. But that of course is the fun. For those of us who’ve spent many years in the law, looking at the law from a different professional paradigm can help us see things that didn’t stand out before. It certainly enjoyable and brings a breath of fresh air to the law.

Michael Curtotti is undertaking a PhD in the Research School of Computer Science at the Australian National University. His co-authored publications on legal informatics include: A Right to Access Implies a Right to Know: An Open Online Platform for Readability Research; Enhancing the Visualization of Law and A corpus of Australian contract language: description, profiling and analysis. He holds a Bachelor of Laws and a Bachelor of Commerce from the University of New South Wales, and a Masters of International Law from the Australian National University. He works part-time as a legal adviser to the ANU Students Association and the ANU Post-graduate & research students Association, providing free legal services to ANU students.

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VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed.

openlaws

Access to justice, Adding legal commentary to free access to law services, Annotation of legal texts, Crowdsourcing and free access to law, Crowdsourcing and legal information systems, Demand for free access to law, Disruptive legal technology, European Union, free access to law, Legal publishing, Legal social media, Legal social networks, Open Government Data, Web 2.0 and law No Responses »

Jun 162014

The other day a friend came to me because he heard about the openlaws.eu project. He said: “Hey, openlaws sounds great – does that mean that I can write my own laws now?”. I had to tell him no, but that it was almost as good as that… Continue reading »

‘Fhe new FSI Direcfif’: the missing teeth or as good as it gets?

Competition in legal publishing, Electronic legal publishing, Legal metadata, Legal publishing, Open Government Data No Responses »

Sep 162013

Last June after a relatively brief 18 months of negotiations, the European Parliament adopted a proposal for a revised PSI Directive. Quite something if one takes into account the ‘horizontal’ and far reaching effects of the new rules, affecting the information position of almost any public sector body across Europe. So what’s in the new Directive? And how should we judge it?

High hopes

“Today we can celebrate our efforts to bring government data closer to citizens and businesses in Europe. We are finally getting the much needed legal framework to boost the economy and create new jobs.” This is how EU Commissioner Neelie Kroes announced the adoption of the Directive of the European Parliament and of the Council amending Directive 2003/98/EC on re-use of public sector information in June 2013. Ms Kroes had initiated the process in December 2011, acknowledging evidence (in particular demonstrated in the the POPSIS Report and the Vickery Report) that European socio-economic potential was unexploited and complaints from large groups within the Open Data community that the 2003 legal framework required to be reviewed. This legal framework had been put in place by the European legislator with the aim of opening up Member States’ public informational resources in order to stimulate economic growth and enhance transparencies and to take away barriers that may refrain them to flow freely across Europe.

Slight sense of disappointment

Truly believing in the spirit of Open Data, but aware of the sensitivity of the subject especially in these times of economic crisis, I must confess that an appraisal of the outcome against the ambitions set in December 2011 leaves a slight sense of disappointment, as some of the more forceful, much-needed measures have been watered down. In my view, the original proposal held some remarkable provisions that would have significantly changed the equation between public data holders and re-users. Alas, they have been lost in the trenches of negotiations in Parliament and the Council in particular.

No charges and a watchdog

The first novelty the proposal had sought to introduce was a stringent pricing regime for public sector information (PSI), as a rule disallowing public sector bodies (PSBs) from charging above the marginal (reproduction, provision and dissemination) cost level, which is practically zero in a digital environment. Exceptions were to be allowed only if this would entail instant bankruptcy of the PSB. In such exceptional cases, higher charges could be set. The PSB had to show that the charges were determined by objective, transparent and verifiable criteria and obtain approval from an independent authority. That was the second novelty introduced. The independent re-use watchdog was also to be endowed with specific regulatory powers regarding PSI re-use, serving as a means of redress. Its decisions were to be binding and, in doing so, would mimic the fairly successful models used in the United Kingdom and Slovenia.

Lost in battle

Alas, we lost both. Now the Directive, by its article 4(4), also allows the independent authority to be an existing national judicial authority. This means lengthy and costly procedures instead of swift decisions, which are much needed by re-users, in particular small and medium-sized enterprises (SMEs). Article 6 continues to refer to a marginal cost regime by default, but the system is as solid as Swiss cheese: PSBs that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public task, as well as documents for which the PSB is required to generate sufficient revenue to cover a substantial part of the costs relating to their collection, production, reproduction and dissemination are exempted. This means that costs can be recovered, including a reasonable return on investment (being the ‘old’ article 6 regime). However, even this cloud has silver lining: terms are to be set up-front and published, including the structure and the principles underlying the charges.

Synchronization access and re-use

Of course the revised Directive also introduces some new elements that are a step forward. Firstly, it introduces a new paradigm. Where under the old regime PSBs could disallow re-use of publicly accessible documents, the new Directive synchronizes access and re-use: if there is a right of access, then there is a right of re-use. And although PSBs can still impose conditions, including charges, under article 8(1), those conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition. This implies a kind of ‘compulsory licence’ for material protected by (Crown) copy and data base rights.

Accessibility

Secondly, the new Directive addresses the issue of accessibility. According to consideration 11, PSBs should make documents available through open and machine readable formats and together with their metadata, at the best level of precision and granularity, where possible and appropriate, in a format that ensures interoperability, e.g. by processing them in a way consistent with the principles governing the compatibility and usability requirements for spatial information under the INSPIRE Directive. Although not incorporated in the actual provisions — which are to be transposed into national legislation — this is a clear encouragement to the Member States to rely on the INSPIRE framework also for other areas of PSI. This being said, the Directive (article 5(2)) explicitly states that this does not imply an obligation to create or adapt documents or provide extracts in order to comply with that paragraph if this would involve disproportionate effort, going beyond a simple operation. Put differently, the success of expanding the INSPIRE regime will depend on the willingness of individual PSBs. One would expect that this will happen in those sectors that are close to or partly reliant on INSPIRE-related information.

The final judgement

My feeling is that if we ever had a chance to truly accelerate the adoption of Open Data in a fairly harmonised European context, this was definitely the moment: the Open Data movement had managed to arouse political attention and we had a Commissioner with a genuine connection to the dossier, where the PSI Directive is fuelled and driven by competition law spirit and concepts. On the other hand, looking at the bigger picture, the new Directive is the next and necessary step of a process started more than 14(!) years ago with the adoption of the 1999 Green Paper ‘Public Sector Information : A Key Resource for Europe’. It is part of the transition that we are witnessing: governments are gradually returning to their core public tasks and enabling companies and citizens to avail of opportunities (and take on responsibilities no longer catered for) and to fill the vacuum created by this retreat. This appears to be an irreversible process. The watering down by the Council (read: Member States, including some of the big ones like the UK) of the charging and redress provisions should be put in context of the time needed to reconsider public data holders’ funding models that are moving from fee-based models to general State budget financing. This shift is unmistakably taking place, judging from the ever increasing number of PSBs adopting Open Data policies across Europe. The new Directive will catalyse this process, where the transposition obligation will put these points on the political agenda for the next two years.

Exciting times!

Marc de Vries has professional degrees in both law and economics (Utrecht 1991). He has been active in the field of PSI re-use for more than 15 years, both at the national and European levels. Any comments are welcome: marc@thegreenland.eu | www.thegreenland.eu | +31 653897002 | http://www.linkedin.com/pub/marc-de-vries

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed.

Envitool: Helps companies comply with EHS and CSR

Electronic legal publishing, Legal publishing, legal translation, Multilingual legal information retrieval No Responses »

Mar 302012

The Swedish legal publisher Notisum AB has been on the Swedish market for online legal publishing since 1996. Our Internet-based law book at www.notisum.se is read by more than 50,000 persons per week and our customers range from municipalities and government institutions to Swedish multinationals.

Now we are heading for China, and I would like to share with you some practical experiences from this highly dynamic market and our challenges in trying to conquer it.

The case for a legal monitoring tool, codenamed “EnviTool”

In close co-operation with our customers, we had developed a set of specialized Internet based tools in Sweden for supporting the process of legal compliance and legal information sharing within big organizations. The key driver of these needs was the growing number of certificates according to the international environmental management standard ISO 14001:2004.

ISO 14001 is a worldwide industry standard to help companies to improve their environmental performance through the implementation of an environmental management system. There is much to say about management systems. Continuous improvement is the heart of the matter–it is all about doing the right things right. Establish a plan, do what you planned, check your results and then start all over by correcting your plans. Plan, Do, Check, Act.

According to the standard, you have to identify the relevant environmental legislation for your organization. You need access to those laws and regulations, and you have to keep an updated list. You should also make the information available to the people of your organization.

By providing an online legal register, monitored for changes, with a whole set of information sharing and workflow features, Notisum helps the certified companies to comply with the environmental legislation.

We developed this system step by step. When it came to going outside the borders of the Kingdom of Sweden, we changed the name from Rättsnätet+Miljö to EnviTool.

The case for China

Sweden is a country of very high penetration of the ISO 14001 standard, and the use of the standard is in a mature phase in most organizations. China, on the other hand, is number one in the world, with more than 70,000 certificates issued. The growth is double-digit. So China is the place to be if you have products for this specific customer group. The users of the standard are yet immature in China, so we knew there were some challenges out there.

The market for legal information tools is overall immature in China and legal compliance is not always on top of the manager’s priority lists. However, Notisum took the first steps, starting in 2009, to take on the challenge to make China our second home market. Many challenges, expected and unexpected, were waiting for EnviTool.

Step one – the product

Like many commercial ventures, the EnviTool project was the result of a randomly started chain of events. Our Swedish CEO was playing golf with a professor at KTH, the Royal Institute of Technology in Stockholm. The professor was in charge of a student exchange program between National University of Singapore (NUS) and KTH. We were asked to host an internship for an ambitious computer science student in our company for one academic year.

The internship was successful, our student was doing a great job and we learned a lot about Asia and the Chinese culture. We have now hosted three excellent NUS students from Singapore, all good representatives of their university and their country. And all of them bilingual English and Chinese. That’s when we decided that China would be an interesting market to try. And yes – China is far away from Sweden, it is terribly big and it was really too large a challenge for our company. We wanted to try anyway, with the hope that Singapore could be the bridge for us.

We decided to start a subsidiary in Singapore and so we did. It is easy, by the way. According to the World Bank, Singapore ranks number one in the world in ease of doing business. Coming from Sweden, ranked number 50 in the world in terms of how easily you pay your taxes, I had an almost religious moment when we got a letter of gratitude from the Singaporean tax authorities after paying our taxes. Not so in Sweden, I may add…

With the first NUS intern now as our first employee, we started translating and adapting our internet tool together with our development manager in Sweden. The technological challenges were there, of course. We base our technology on the Microsoft.NET platform, but the support for the simplified Chinese character set was not totally implemented everywhere. Multi-language support was developed, and plenty were the occasions in the beginning when Swedish words popped up unexpectedly. The search function in Chinese is different in EnviTool and the relations between the legislative documents were so different from the Swedish and European law that we had to re-design our database structure.

Step two – the market research

With good help from the Swedish Trade Council in China, we did market research to see if there could be a similar market in China and if our business model could work.

After three journeys and two projects together with the trade council, we decided to give it a try. The EnviTool China project was about to take off. Learning to eat properly with chopsticks was part of the experience. Learning to appreciate the Chinese food was easier although there are some zoological challenges there too, outside the scope of this blog entry.

At this point in time we also employed a Chinese/Swedish project manager with extensive knowledge and experience in the field.

Step three – the content

Translating the tool to Chinese and English was the easy part. When it came to the content, we had to throw out everything from Sweden and put in Chinese legislation and comments. We soon found interesting challenges.

Our first experience of the Chinese legal tradition,which is in many ways different from where we come from, was the search for a standard for citations. In the Swedish databases we had successfully used computer software to automatically find citations, law titles, cross references and other document data. It became clear to us that there were no shortcuts in the Chinese material. We had to input all data manually.

We decided to restrict the information to cover relevant legislation in the EHS (Environmental, Health & Safety) and CSR (Corporate Social Responsibility) field and to concentrate on the national level with some provincial/municipal areas like Beijing and Shanghai. The EHS/CSR users are professionals in their field of work and their industries. They are not lawyers and not very used to legal information systems. EnviTool were developed with EHS/CSR managers in our minds. We wrote the editorial content to suit the needs of our target audience.

We realized that we needed a partner in China to provide fast and timely information. In ChinaLawInfo, established by Peking University in association with the university’s Legal Information Center, we found a great partner. They are the most important legal information provider in China and we saw that Notisum of Sweden and ChinaLawInfo had many similarities in experience and way of working. Yes, we are small and they are big, but that goes for Sweden and China all over. So EnviTool now provides the EHS/CSR laws and regulations from both ChinaLawInfo and government sources. We also have an on-going editorial co-operation in Beijing.

By now we also had good content. The EnviTool Internet service and database, provided from our Singapore company servers, were released in its first version in the fall of 2010.

Step four – market introduction

If company start-up was a short track in Singapore, it was a longer journey in the world’s second biggest economy. After having tried 50 other names, Envitool finally was translated to 安纬同 in Chinese and we got the business permit in August 2011.

We employed the people we needed and found a partner to help us with HR and finance issues. Since then we have started our sales and marketing activities, moving slowly forward. The use of legal information tools served from Singapore is combined with management consulting from our team in Shanghai. We provide training in using the tool and can assist the clients in finding the laws and regulations relevant to their operation.

The second generation of the site is up and running at www.envitool.com and we are proud to have customers from China, the US, Japan and four different European countries.

What we have learned and what we think of the future

To get to know China and the Chinese people is of course one part of the fun. Being a European, you make many mistakes, sometimes because of language, sometimes cultural.

One example of this confusion was when I intervened in the editorial process. In EnviTool we provide bi-lingual Chinese/English short and long comments to laws and regulations. In the Swedish service, which I am more familiar with, the short comment is rendered in italics with the longer comment below in plain text. In the English version of the comments in EnviTool, the short one was not in italics. I complained and our programmer quickly changed this. Shortly thereafter, at a customer meeting, I showed the comments, now in Chinese language version. (I don’t understand a word of Chinese.) Can you imagine Chinese characters in italics? I can tell you, it makes no sense and it looks bad. That was the language mistake. The cultural mistake was managerial. A Swedish employee would have told me how stupid I were, if I came up with such a bad idea. The Asian employee (highly intelligent and highly educated) probably saw the problem and maybe thought “the boss is more stupid than usual, but he is my boss so I have better do what he tells me!”. A lot to learn, many aspects to consider.

To conclude, the start-up was a bit slow because of the red tape but so far, our government contacts have been smooth. We have felt very welcome at the Chinese authorities like the Ministry of Environmental Protection and local governments. In the end, our goals are similar: better environmental and occupational health & safety legal compliance – better environment and better life for the citizens.

We know it will take a long time for us to get the knowledge and experience needed to be a significant player in the Chinese market, and we are prepared to stay there and step by step build our presence. It took many years to build a loyal and substantial customer base in Sweden. It will take even longer in China.

Magnus Svernlöv is the founder and chairman of the Swedish online legal publisher Notisum (www.notisum.se) and its Chinese subsidiary Envitool (www.envitool.cn). He holds an MBA from INSEAD, France, a MScEE degree from Chalmers University of Technology, Sweden and a BA from the School of Business, Ecnomics and Law, University of Gothenburg, Sweden. He welcomes any comment or feedback to ms@notisum.se

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.

Is it Time for Law Libraries to Collaborate on Description for Their Own Institutions’ Legal Scholarship?

Legal knowledge representation, Legal metadata, Legal ontologies, Legal publishing, Legal semantic web, Linked Data and law, Semantic annotation of legal texts, Semantic Web and law 2 Responses »

Sep 302011

Over the past couple of years, there has been a great deal of discussion — particularly in relation to the Durham Statement [1] — about technical standards and preservation issues for law reviews that publish openly and exclusively online. Other colleagues have already blogged or written more formally about the lack of metadata being produced in the production of law reviews, and about problems in indexing open access law journal literature. [2] In a previous VoxPopuLII post, Dr. Núria Casellas discussed the significance of semantic enhancement and how it affects how we should be thinking about providing access to legal information. [3] So I would like to marry the two discussions, by formally asking my academic law librarian colleagues whether the time has come for us to work together to develop an ontology [4], a substantive knowledge system that could be used by our law schools’ legal journals in “marking up” content for consumption on the Internet.

This ontology should be applied not only to what we think of as traditional law journal content, but also to “related” content — such as companion blogs, video, data, etc. This related content will inevitably grow, as what we think of as a “journal” evolves. Indeed, a typical “journal” will most likely look very different years from now than it does today. As members of the institutions that publish one of the major forms of literature in law, and as members of organizations that possess significant legal metadata and subject expertise, law librarians are uniquely positioned to facilitate the discoverability and utility of law reviews published on the Web. Such a project also has the potential to support additional projects such as new metrics and ways in which to look at scholarship.

If this system were indeed widely adopted, it could facilitate a type of access to law journal content that has not been accomplished with existing, centralized means of access, such as Google Scholar, the ABA’s project, and commercial databases. Ideally, I would like to see our community develop a cooperative that could provide a hosted technical infrastructure to be used by institutions that lack the financial or technical resources to invest in a major repository service or open source solutions. While this idea seems “utopian” at this point, I think that our community could realistically pursue standards and language for the more “substantive” aspects of the metadata, even if we are unable to agree on the ultimate solutions for preservation or platforms that “serve up” the content. Such an ontology could also serve as a precursor to even more ambitious, collaborative projects to make legal information more accessible and discoverable.

What do you mean by an ontology? Don’t you just mean a taxonomy or “shared vocabulary”?

I frame the idea as an “ontology project” because publishing on the Web has increasingly become about structured, open, Linked Data and marking up content for the Semantic Web [4]. As the significance of Linked Data grows, it is important for us to think about access to legal scholarship in terms of knowledge systems that contemplate access to information in those terms. The use of structured data/schemas in publishing law reviews would be optimized by human knowledge/expertise for the expression of ideas and language to be applied in that data. We need to think about subject access beyond the standard, familiar hierarchical “subjects” that we have come to use in our existing taxonomies, indexing, and classification systems. [5] We should be thinking about these “subjects” in a way that shows deeper interrelationships between concepts and “types” and that “interacts” and is “interoperable” with other systems. The ontology approach contemplates access to information from a variety of perspectives in relational and situational ways.

Law reviews could be published in a way that incorporates a particular ontology that could also be mapped to other ontologies. Linking ontologies in this way would yield useful connections across systems, bodies of knowledge, and perspectives, including multilingual thesauri, interdisciplinary knowledge, and practice-oriented and “pro se” consumer perspectives. Thinking about the project as an “ontology” also brings to mind three other important features of the system: (1) the “philosophical” definition of the term “ontology”; (2) the significance of “language” and subject expertise; and (3) the flexibility that would allow us to build something dynamic and responsive to the ever-changing nature of law. Such an approach contemplates the approach to legal information advocated in Dr. Casellas’s piece. [6]

Don’t legal indexes already do this? Why reinvent the wheel?

When some of these issues were raised last October at the workshop entitled “Implementing the Durham Statement: Best Practices for Open Access Law Journals”, someone asked why we should “reinvent the wheel” when other longstanding systems (e.g., law journal indexes) are already doing this. Most of these longstanding systems are based on paid subscription models and are not open in a way that facilitates rapid response to evolving developments in the law, or use by those who consume legal information. More importantly, this project would really be about facilitating publishing and improving access to online content by providing a quality, substantive, open knowledge structure for journals to use for marking up content and building access into publication. This project would not be an attempt to displace or “usurp” indexes which focus on access to content from the “outside” perspective of the publication itself (and which are increasingly concerned with marketable enhancements like full-text access, search features, user interface, Web 2.0 functionality, etc.).

The “wheels” we might be accused of reinventing also include “federated searching” and Web-scale discovery systems being purchased by libraries, but I think similar arguments about cost, perspective on the content, and scope would still apply. Development of our project and adoption of Web-scale discovery systems are not mutually exclusive. Web-scale discovery systems could potentially integrate and map to our system. In any event, the point is not to “throw out“ existing systems, but to create an additional knowledge structure that is open and potentially informed by and interoperable with other existing systems.

How would we proceed?

There are many approaches to ontology development [7], including derivation from or text-mining of legal texts [8], top-down development by humans, and building upon or extracting from existing ontologies. [9] Any of these methods (or a combination thereof) could work in the case of developing an ontological structure that could be applied to law review content.

A “top–down” approach based on the knowledge of individuals could start with librarians. But it should also involve working with law school faculty and scholars having expertise in particular subject areas, as well as with authors of law journal articles, and editors of law journals themselves (particularly those focusing on specialized legal topics). [10] Each law school has faculty and librarians who possess specialized legal subject knowledge — as well as collections in particular areas of law — that could enrich the project. In addition to contributing their substantive knowledge, librarians would have an opportunity to develop a language and a system that reflect how they think about and look for information.

Other colleagues have already suggested greater engagement with law school faculty, for purposes of learning about how faculty conduct and think about research. [11] A project like this would give us the opportunity to engage our stakeholders respecting how they think about, contextualize, and relate topics. (Perhaps we could learn more about the way law library stakeholders think about information by presenting them with samplings of articles, and inquiring as to how the stakeholders would “expect” to find those articles.) Instead of forcing those knowledgeable about their field to learn the taxonomy and structure we have been given by traditional systems, we would be harvesting the expertise of those subject specialists in order to create richer metadata that contemplates their habits and knowledge. Faculty, authors, and journal editors with subject expertise coupled with law librarians could potentially provide a very sophisticated, dynamic, and responsive system.

We should also consider looking at existing ontologies and other systems, including Library of Congress and other popular and relevant systems used in law. There are several ontologies related to law that could inform the project and that could also potentially be mapped. [12] Systems to be consulted (and mapped) could include ontologies designed for primary law and local knowledge management in legal settings, as well as ontologies in subject areas outside the law. Also, some law schools might have their own local systems that could inform ours.

Finally, while we would probably want to avoid using text mining as the only method, the project should also contemplate doing some mining and extraction from law journal literature itself. Such an approach might be particularly helpful in grappling with older legal concepts and appreciating the use of certain terms/language over time.

Whatever method(s) we select, we have a host of inspiration from other projects in legal informatics and from projects in other disciplines (particularly in the sciences) that strive to provide naming conventions within disciplines, and map knowledge across systems through coordinated efforts. Although it is a much more ambitious project than ours, John Willbanks’ Neurocommons project provides us with a model of how such a project could garner participation and grow, particularly if we were to coordinate with other projects and ontologies being developed. [13]

If we build it, who will use it?

If we do develop such a system, who would actually apply it in publishing law reviews? Hopefully, libraries will take the lead and realize that this is a role that they themselves should be fulfilling. While many libraries facilitate repositories and other platforms for publishing law journals and provide training and reference/research support for cite checking and preemption, many do not provide markup and metadata work on the articles themselves. In a recent survey by Benjamin Keele and me in relation to a paper we have been writing, only 1 in 57 respondents reported doing any work on article metadata for their journals. [14] Librarians are already cataloging books and spending time grappling with metadata development and changes in the ways in which we describe our cataloged resources (RDA, FRBR, etc.). Further, librarians today spend a lot of time and money purchasing or building “repositories” or other platforms for their law journals. Greater support of metadata development for our own institutional output (beyond provision of simplistic taxonomies) is a natural outgrowth of such activities. As other librarians have commented, providing institutional repositories is not sufficient. [15]

Such activity could contemplate new roles for catalogers. A recent NISO Webinar on the impact of Linked Data on library cataloging suggested that library catalogers will be less focused on creating “records” and more concerned with “graphs”. The presenters commented that catalogers will enhance the increasing amount of minimal metadata coming directly from publishers, and provide access to original and local content. [16] Some libraries have already integrated metadata work into their workflows for cataloged resources, and it is possible for a law library to integrate journal work into its technical services workflow. [17] From a reference perspective, librarians are already often exposed to journal content in the early stages of publication through support of preemption checking, student note/comment research help, and cite checking support. Librarians are thereby in a good position to understand the “aboutness” of the content. Such involvement could provide law librarians with a natural progression toward being more involved in helping journals “mark up” their content. It is an opportunity for us embrace more wholeheartedly the role of law libraries as publishers and knowledge managers. Many of our colleagues in the open law movement, in knowledge management in legal practice, and in other disciplines have made forays into this area. [18]

Some would probably argue that libraries do not have sufficient staff to get involved in law journal publishing activities, particularly in markup. In addition, some institutions have entire offices outside the library that support publication activities. Even if libraries feel that they are not in a position to manage the workflow of the application of this knowledge system, the most important contribution librarians can make lies in expertise or intellectual input. Application of this ontology could also be performed by law students themselves or other law school staff. Further, authors themselves are potential users and providers of metadata. In many other disciplines, especially the sciences, more authors are using author add-in tools and other software programs to help mark up their manuscripts for publication. Specialized tools could be developed to facilitate authors’ adding metadata to their own law review articles. (Many law authors are already used to contributing keywords to SSRN papers.)

“But…”: Obstacles and opportunities

As I write this piece, I anticipate comments such as, “That would be too big of an undertaking,” and: “Is that really our role?” While libraries are feeling the pressure of more limited resources and time, I would argue that this project would synergize with libraries’ existing interactions with our primary users (faculty and students) and could be built into other outreach activities. In the end, it could actually help to create an organic system responsive to users’ needs. Pursuing this project in tandem with other coordinated activities to facilitate open access law journals, law librarians would join many of our university library colleagues in thinking of ourselves in the role of producer/publisher and in providing new opportunities for our library staff (both technical services and reference/subject specialists).

I envision a host of other issues and problems (too many to enumerate in this posting) that might arise in relation to a project such as this, but I consider none of them “insurmountable.” Below is a sample of some issues that come to mind:

Coordination/governance: Who would control the project? Who would be the final arbiter of what is adopted? Past discussions of the Durham Statement have suggested the possibility of an organization providing support for journals that tried to “comply” with the Durham Statement. [19] Such an organization might consider taking on a project such as this. Perhaps leadership for this project could evolve in some way out of institutional and personal relationships, such as those that have evolved for collection development, [20] or possibly through some coordinated efforts of American Association of Law Libraries (AALL) Special Interest Sections (particularly ALL-SIS, TS-SIS, and RIPS-SIS). If our own institutions are not willing to support such a project, individual librarians on their own (myself included!) might be willing to contribute time and energy to the project. We are also fortunate to have a supportive community of technologists in the open law and knowledge management fields, who could serve as potential partners. The important aspects of the project are that it should be owned by an entity with diverse representation and interests, and that it should be established as something that will be free.

Target content and scope: Would we be framing subjects as they tend to exist in U.S. law review literature? While the structure would be designed for use by law reviews, if it were kept open and without restrictions, it could potentially be adopted by peer-reviewed journals and mapped to other indexing systems, either through Web-scale discovery or other systems. How do we frame an ontology that contemplates incorporation of multiple legal systems and relation to multiple languages? How do we deal with the translation issues that may arise? How would the ontology map to other systems and multilingual thesauri? Should we be contemplating ontologies in other disciplines that have addressed these issues?

Could it be for naught? One might ask, “If we build it, will they come?” Even if provided with such a system (as well as other best practices and support), would law reviews actually adopt it? Even if they do not apply such a system to their data structures, the substantive system that evolves could also be applied from the “outside” by third parties if the content itself is open. While one could argue that this would truly be “reinventing the wheel” in duplicating the efforts of existing indexing systems, one could argue alternatively that the scope, nature, and openness of the resulting system would offer a unique contribution to the indexing environment and would at least provide an additional alternative to the existing systems.

Technical questions: Which particular tools should we use to work collaboratively? What machine-readable formats would we contemplate using? How would we deal technically with systemic changes to the ontology and its application? There is a long list of tools and formats suitable for this project, and of methods for dealing with changes to metadata resources such as ontologies.

How would we contemplate application of this ontology in existing publishing platforms? What tools would we contemplate journals using to mark up documents with metadata from the ontology? Many of the repositories and platforms libraries are currently using permit enhancement of metadata with keywords, user-generated tags, or existing basic subject categories. But existing repositories and platforms do not necessarily facilitate markup that is optimized for the Semantic Web.

Who is the audience? Who is looking for such an ontology? If the language and concepts are at least in part based on the needs and knowledge of our faculty and students, do we develop something tailored to their use instead of developing something that serves broader norms? How could we take into consideration how others (pro se’s, court personnel, etc.) might be looking for information, and map or relate our ontology to other systems that incorporate those users’ perspectives? How could we develop an ontology that contemplates relating to primary law?

Rights issues: Are there rights issues involved in adaptations or derivations of others’ ontologies? How would we want to handle rights issues/licenses respecting the ontology that we develop? [21] Hopefully, the answer is freely and openly!

So what do you think?

Hopefully, this post will spur a discussion that could be continued on this blog or in another forum. In any event, law libraries should be rethinking their roles in the production of law review metadata. Law libraries should be considering how the evolution of the Semantic Web and cataloging standards might impact how they provide support for their own institution’s journals.

NOTES

This post is based in part on two draft papers: Benjamin Keele and Michelle Pearse, How Law Libraries Can Help Law Journals Publish Better (poster session presented during the 2011 AALL Annual Meeting in Philadelphia, PA on July 23-26, 2011), and Michelle Pearse, Whither the Future of Law Journal Indexing?.

[1] Richard A. Danner, Kelly Leong, and Wayne Miller, The Durham Statement Two Years Later: Open Access in the Law School Journal Environment, 103 Law Library Journal 39, 52 (2011), http://scholarship.law.duke.edu/faculty_scholarship/2358/; Implementing the Durham Statement: Best Practices for Open Access Law Journals Conference, http://www.law.duke.edu/libtech/openaccess/conference2010 (October 22, 2010).

[2] Tom Boone, Librarians Key to Open Access Electronic Law Reviews, http://tomboone.com/library-laws/2009/09/librarians-key-open-access-electronic-law-reviews (September 3, 2009) ; Sarah Glassmeyer, Getting to Durham Compliance, SarahGlassmeyer(Dot)Com, http://sarahglassmeyer.com/?p=442 (April 26, 2010); Edward T. Hart, Indexing Open Access Law Journals…or Maybe Not, 38 International Journal of Legal Information 19 (2010), http://scholarship.law.cornell.edu/ijli/vol38/iss1/5/.

[3] Dr. Nuria Casellas, Semantic Enhancement of Legal Information: Are We Up for the Challenge?, VoxPopuLII, http://blog.law.cornell.edu/voxpop/2010/02/15/semantic-enhancement-of-legal-information%e2%80%a6-are-we-up-for-the-challenge/ (February 15, 2010).

[4] Some resources related to this topic appear at http://schema.org and http://linkeddata.org. Some argue that the Semantic Web might already be ill-fated: Janna Quitney Anderson and Lee Rainie, The Fate of the Semantic Web, http://www.pewinternet.org/~/media//Files/Reports/2010/PIP-Future-of-the-Internet-Semantic-web.pdf (Pew Research Center 2010). Tom Gruber defines an ontology as “a specification of a conceptualization”: http://www-ksl.stanford.edu/kst/what-is-an-ontology.html; Tom Gruber, in the Encyclopedia of Database Systems, Ling Kiu and M. Tamer Ozsu (Eds.), Spring-Verlag, 2009 http://tomgruber.org/writing/ontology-definition-2007.htm and http://semanticweb.org/wiki/Ontology. Joost Breuker and colleagues elaborate: “The term ‘ontology’ may have different meanings: (i) philosophical discipline; (ii) informal conceptual system; (iii) a formal semantic account; (iv) a specification of a conceptualization; (v) a representation of a conceptual system via logical theory, (vi) the vocabulary used by a logical theory, (vii) a meta-level specification of a logical theory.” J. Breuker et al., “The Flood, the Channels and the Dykes,” in Joost Breuker, Pompeu Casanovas, Michael C.A. Klein and Enrico Francesconi, eds., Law, Ontologies and the Semantic Web: Channeling the Legal Information Flood (IOS Press 2009), at 11. Adam Wyner defines “ontology” in the following way: “An ontology represents a common vocabulary and organization of information that explicitly, formally, and generally specifies a conceptualization of a given domain. Ontologies are related to knowledge management (cf. Rusanow’s ‘Knowledge Management and the Smarter Lawyer’) and taxonomies (cf. Sherwin’s article ‘Legal Taxonomies’). But an ontology is a more specific, explicit and formal representation of knowledge than provided by KM [knowledge management]; and it is richer and more flexible than a taxonomy….In making an ontology, one turns tacit expert knowledge into explicit representations that can be shared, tested and modified by people as well as processed by a computer.” Dr. Adam Z. Wyner, “Legal Concepts Spin a Semantic Web”, Law Technology News, http://www.law.com/jsp/lawtechnologynews10/PubArticleLTN.jsp?id=1202431256007&slreturn=1 (June 8, 2009). Dr. Núria Casellas gives a good explanation of the Semantic Web and ontologies: Dr. Núria Casellas, Semantic Enhancement of Legal Information: Are We Up for the Challenge? http://blog.law.cornell.edu/voxpop/2010/02/15/semantic-enhancement-of-legal-information%e2%80%a6-are-we-up-for-the-challenge/ (February 15, 2010).

[5] Christopher A. Welty and Jessica Jenkins, Formal Ontology for Subject, 31 Journal of Knowledge and Data Engineering 155 (1999) (also available at http://www.cs.vassar.edu/~weltyc/papers/subjects/subject.html); Hope A. Olson, The Power to Name: Locating the Limits of Subject Representation in Libraries (Kluwer Academic Publishers, 2002); Knowledge Representation with Ontologies: Present Challenges – Future Possibilities, 65 International Journal of Human-Computer Studies 563 (2007), doi: 10.1016/j.ijhcs.2007.04.003.

[6] “In the subfield of computer science and information science known as Knowledge Representation, the term ‘ontology’ refers to a consensual and reusable vocabulary of identified concepts and their relationships regarding some phenomena of the world, which is made explicit in a machine-readable language. Ontologies may be regarded as advanced taxonomical structures, where concepts are formalized as classes and defined with axioms, enriched with description of attributes or constraints, and properties.” Dr. Núria Casellas, Semantic Enhancement of legal Information: Are We Up for the Challenge? http://blog.law.cornell.edu/voxpop/2010/02/15/semantic-enhancement-of-legal-information%e2%80%a6-are-we-up-for-the-challenge/. See also Dr. Adam Z. Wyner, “Legal Concepts Spin a Semantic Web”, Law Technology News, http://www.law.com/jsp/lawtechnologynews10/PubArticleLTN.jsp?id=1202431256007&slreturn=1 (June 8, 2009) (suggesting Web-based collaborative ontology development where legal professionals contribute to a free, open ontology for law); Dr. Adam Z. Wyner, Weaving the Legal Semantic Web with Natural Language Processing, VoxPopuLII, http://blog.law.cornell.edu/voxpop/2010/05/17/weaving-the-legal-semantic-web-with-natural-language-processing/ (May 17, 2010).

[7] Bill Cope, Mary Kalantzis and Liam Magee, Towards a Semantic Web: Connecting Knowledge in Academic Research (Chandos Publishing 2011), at 72 (noting several studies on investigating approaches and software); A Holistic Approach to Collaborative Ontology Development Based on Change Management, 9 Web Semantics: Science, Services and Agents on the World Wide Web 299 (2011), doi:10.1016/j.websem.2011.06.007; “Ontologies can be designed by means of methods such as…encompassing top-down expertise elicitation from humans, bottom-up learning from documents, and middle-out application of design patterns, which can be specialized from domain-independent ontologies, extracted from best practices, existing ontologies or other knowledge sources, as well as learnt from conceptual invariances found in experts’ documents.” Aldo Gangemi, “Introducing Pattern-Based Design for Legal Ontologies,” in Joost Breuker, Pompeu Casanovas, Michel C.A. Klein and Enrico Francesconi, eds., Law, Ontologies and the Semantic Web: Channelling the Information Flood (IOS Press, 2009), at 53.

[8] Enrico Francesconi, Semantic Processing of Legal Texts: Where the Language of Law Meets the Law of Language (Springer 2008).

[9] “Creating and developing ontologies requires domain expertise and the ability to capture this knowledge in a clean conceptual model.” Roberta Cruel, Olga Morozova, Markus Rhode, Elena Simperl, Katharina Siorapes, Oksana Tokarchuk, Torben Wiedenhoefer, and Fahri Yetim, Motivation Mechanisms for Participation in Human-Driven Semantic Content Creation, 1 International Journal of Knowledge Engineering and Data Mining 331 (2011), doi: 10.1504/IJKEDM.2011.040653.

[10] This approach of working with faculty and other scholars from the legal academy would be similar to the “socio-legal” referenced by Dr. Casellas in her post regarding her Institute of Law and Technology project. Dr. Adam Z. Wyner has also advocated web-based collaborative ontolology development where legal professionals contribute to a free, open ontology for law. Dr. Adam Z. Wyner, “Legal Concepts Spin a Semantic Web”, Law Technology News, http://www.law.com/jsp/lawtechnologynews10/PubArticleLTN.jsp?id=1202431256007&slreturn=1 (June 8, 2009).

[11] Stephanie Davidson, Way Beyond Legal Research: Understanding the Research Habits of Legal Scholars, 102 Law Library Journal 561 (2010), http://www.aallnet.org/main-menu/Publications/llj/LLJ-Archives/Vol-102/publljv102n04/2010-32.pdf; Richard A. Danner, Supporting Scholarship: Thoughts on the Role of the Academic Librarian, 39 Journal of Law & Education 365-386 (2010), http://scholarship.law.duke.edu/faculty_scholarship/2071/ .

[12] Robert Richards, Legal Information Systems & Legal Informatics Resources: Knowledge Representation: Legal (Selected) http://www.personal.psu.edu/rcr5122/Ontologies.html; Robert Richards, Legal Information Systems & Legal Informatics Resources: General Resources for Application to Law, http://www.personal.psu.edu/rcr5122/OntologiesGeneral.html; Joost Breuker, Pompeu Casanovas, Michael C.A. Klein, and Enrico Francesconi, eds., Law, Ontologies and the Semantic Web: Channeling the Legal Information Flood (IOS Press 2009), at 12 (table of 23 ontologies).

[13] Alan Ruttenberg et al., Life Sciences on the Semantic Web: The Neurocommons and Beyond. Briefings in Bioinformatics, 10(2): 193-204 (2009), doi: 10.1093/bib/bbp004 (“The NeuroCommons project seeks to make all scientific research materials – research articles, knowledge bases, research data, physical materials – as available and as usable as they can be. We do this by fostering practices that render information in a form that promotes uniform access by computational agents – sometimes called ‘interoperability’. We want knowledge sources to combine easily and meaningfully, enabling semantically precise queries that span multiple information sources.”).

[14] Benjamin Keele and Michelle Pearse, How Law Libraries Can Help Law Journals Publish Better (poster session presented during the 2011 AALL Annual Meeting in Philadelphia, PA on July 23-26, 2011, http://scholarship.law.wm.edu/libpubs/25/).

[15] Tom Boone, Librarians Key to Open Access Law Reviews, http://tomboone.com/library-laws/2009/09/librarians-key-open-access-electronic-law-reviews (September 3, 2009).

[16] NISO/DCMI, International Bibliographic Standards, Linked Data and the Impact on Library Cataloging (Webinar), http://www.niso.org/news/events/2011/dcmi/linked (August 24, 2011).

[17] Valeri Craigle, Legal Scholarship in the Digital Domain: A Technical Roadmap for Implementing the Durham Statement, Technical Services Law Librarian, at 1 (December 2010), http://www.library.illinois.edu/archives/e-records/aall/8501591a/news/TSLLdecember2010.pdf.

[18] See Dr. Adam Z. Wyner, “Legal Concepts Spin a Semantic Web,” Law Technology News, http://www.law.com/jsp/lawtechnologynews10/PubArticleLTN.jsp?id=1202431256007&slreturn=1 (June 8, 2009) (suggesting Web-based collaborative ontology development where legal professionals contribute to a free, open ontology for law).

[19] Wayne Miller, A Foundational Proposal for Making the Durham Statement Real, http://scholarship.law.duke.edu/faculty_scholarship/2325/ (suggesting founding an organization “whose mission is to guarantee the ongoing viability and availability of all publications that adhere to the Durham Statement’s call to action, hereinafter called the Durham Statement Foundation.”); Richard A. Danner, Kelly Leong and Wayne Miller, The Durham Statement Two Years Later: Open Access in the Law School Journal Environment, 103 Law Library Journal 39, 52 (2011), http://scholarship.law.duke.edu/faculty_scholarship/2358/ (noting that the Durham Statement “calls for law schools to end print publication in a planned and coordinated effort led by the legal education community”).

[20] Some examples include the Northeast Foreign Law Libraries Cooperative Group and “B2F2” (currently in the process of being the process of being renamed) with Boston area law librarians.

[21] John Wilbanks, “Licensing and Ontologies: Research from Creative Commons,” http://ontolog.cim3.net/file/work/IPR/OOR-IPR-01_IPR-landscape_2010-09-09/licensing-n-ontologies–JohnWilbanks-CC_20100909.pdf (September 9, 2010).

Michelle Pearse is the Research Librarian for Open Access Initiatives and Scholarly Communication at the Harvard Law School Library where she manages implementation of the law school’s open access policy for its faculty, and other projects related to scholarly communication and open access to legal information and scholarship. She is also involved in efforts to archive born-digital content for the collection, and provides research services to faculty and staff.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.

Incomprehension Compounded by Mistranslation - The Imperatives of Access to Legal Information in South Africa

Access to justice, Digital legal publishing, Electronic legal publishing, free access to law, Legal publishing, legal translation, Public access to legal information 1 Response »

Aug 012011

Farmland outside Matatiele

My father was, as was his father before him, a country lawyer in a remote but very beautiful part of South Africa, in the foothills of the Maluti mountains on the border between South Africa and Lesotho. Prominent in his legal office near the Magistrate’s Court were shelves of leather bound volumes of South African statutes, cases, and law reports, which I found impressive, with their gold blocking on red spines. Even back then, South African lawyers were well supplied with legal publications, the production of which dated back to the mid-19th century, when a Dutch immigrant, Jan Carel Juta (who was married to Karl Marx’s sister) published the first law reports. This means that the legal profession in South Africa has access to a century and a half of legal records, something of undoubted value, given that many African countries have no legal publications at all.

If it was a court day, one could hear from my father’s office the hubbub of conversations in Sotho, Xhosa, English, and Afrikaans floating down the road from outside the Magistrate’s Court, where blanket-clad Sotho men down from the mountains had tied up their horses at a hitching post alongside police vans and farmer’s trucks.

Rural settlements

This was Wild West country in the 19th century — and cross-border cattle rustling cases continue to figure large — but when I grew up, in the wake of the Second World War, it presented itself as a quiet village, in a prosperous farming area surrounded by very large ‘trust lands’ (in colonial- and apartheid-speak) of traditional Black peasant communities, where the place names were those of the presiding chiefs. This naming was a symptom of the colonial manipulation of the legal system, described by Mahmood Mamdani, to impose an autocratic and patriarchal ‘customary’ system, a heritage that lingers on in a democratic South Africa. In a legal practice like my father’s, there was a startling dichotomy between the well-paid work done for the prosperous white community with its commercial- and property-law needs, and the customary-law and criminal cases that came from the overwhelmingly larger black communities, dependent on legal aid or paying their fees in small cash installments to a clerk in a back office.

Village traders

I was thus aware at a young age of conflicting values at the intersection between western concepts of the law, its formal and Latinate expression and punctilious enforcement, and the needs of rural black communities; the problematic role that language played in the adversarial ritual of criminal court procedure, alien to many participants; and the difficulties inherent in responding to the needs of very large and widely geographically dispersed poor and disenfranchised communities. The stories my father told about his days in court as a defending attorney were often tales of incomprehension compounded by mistranslation.

This rural setting provides a vivid and useful map of divergent needs for access to legal information in the complexity of an African context. In fact this setting throws a stark spotlight on issues of legal access that are easily obscured in the global North. In an urban setting in South Africa, the issues would be different respecting details, but generally the same: the question is how to bridge the gap between the formalities and rituals of colonially-based and imported legal discourse and the ways in which the legal system impacts on the lives of most of the population. In this context, how does one transform into action Nick Holmes’s concerns, as expressed in his VoxPopuLII blog, about making the law accessible, i.e., suited to meeting the needs of citizens and lawyers in less privileged practices, in an appropriate language and format? Or, to use Isabel Moncion’s distinction between the law and justice, how does one communicate the law in such a way as to reach the people who need the information? And lastly — of vital importance in an African setting where resources are scarce — how does one make such a publishing enterprise sustainable?

I do not come to this discussion with a legal training. I would have become a lawyer, no doubt, like the generations of my father’s family, but 1950s gender stereotypes got in the way. Instead, I became an academic publisher, and then a consultant and researcher on the potential of digital media in Africa. This trajectory gives a particular coloration to my concerns for access to legal information in Africa: my approach brings together an acknowledgement of the need for professional skills and sustainability with an awareness of the serious limitations of the current publishing regime in providing comprehensive access to legal information.

Law publishing in South Africa

The fact that South Africa has a well-established legal publishing sector sets that nation apart from the rest of Africa. The strength of the legal publishing industry is a reflection not only of South Africa’s prosperity, but also of the distinctiveness of the South African legal system, a fusion of Romano-Dutch and British legal traditions. The uniqueness of this system meant that South African law publishing could not rely on purely British sources, and gave local South African legal publishers a market not subject to competition from Britain. However, the nature of this legal system also gave it a tendency, at least in its early stages, towards a particularly impenetrable mode of expression, fueled by the Latinisms of its Roman roots.

Lawyers in practice, the legal departments of big companies, and the courts are relatively well served by the South African legal publishing industry, and the system is self-sustaining. However, there are problems. One is that the industry still clings to print-based business models. The focus is on the readership that can pay and on the topics that are of interest to this readership. The danger resides in seeing this situation as sufficient: in seeing the relatively wealthy market being served as the whole market, and the narrow range of publications produced as satisfying the totality of publication needs. With the South African legal profession still struggling to diversify out of white male dominance, this is an important issue.

As global media have consolidated in the last few decades, South African legal publishers have shown a decreasing willingness to try to find ways of addressing commercially marginal markets. This has meant that, although mainstream legal publishers in South Africa have long produced digital publications, there is reliance on a high-price market model. In other countries one might talk of a failure to address niche markets, but in South Africa it is the mass of the population who are marginalised by this business model. A smaller specialist publisher, Simon Sefton’s Siber Ink, seems more aware than the bigger players of the need for accessible language and affordable prices for legal resources, as well as active social media engagement to create debates about key community issues.

Some hope of solutions to the question of access by otherwise marginalised readers lies in the development, on the margins of the publishing industry, of innovative smaller players leveraging digital media to reach new readerships, often using open source models that combine the free and the paid for.

Access to legal information – The role of government

The main efforts being put into access to legal information in South Africa are quite rightly focusing on government-generated information, which, being taxpayer funded, should be in the public domain and is indeed available on the South African Government Information site. Progress is being made by the Southern African Legal Information Institute (SAFLII) in improving the accessibility of primary legal resources, and success would mean the availability of a substantial body of information that would then be available for interpretation and translation.

Beyond this, government practice in ensuring this level of access is patchy. Some departments are good at posting legislation on their Websites, others less so. Government Gazettes, although theoretically accessible to all, can be difficult to find and navigate; and the collation of legislative amendments with the original Acts is also patchy. There is — at least in theory — an acceptance of the need in government for an open government approach, but the fact that there is a publishing industry serving the profession and the courts ironically reduces the pressure to achieve this goal.

The Truth and Reconciliation Commission

There is a danger, however, when government sees the print-publication profit model as the natural and only way of producing sustainable publications. This was brought home in 1998 with a very important publication: the Report on the Truth and Reconciliation Commission (TRC). This sad and salutary story is worth telling in some detail. But first, a disclaimer: I was working at the time for the company that distributed the Report, and I was actively involved in securing the bid from publishers, although I was not supportive of the business model that was imposed in the end.

Five volumes of testimony, analysis, and findings from the Commission were produced to high production standards. The compilers saw the archival material that lay behind these volumes as ‘the Commission’s greatest legacy’ and the published volumes as ‘a window on this incredible resource, offering a road map to those who wish to travel into our past’ (p.2). The Department of Justice, working on the stereotypical view of how publication works, insisted that production and printing costs had to be fully recovered. The Department set a high price to be charged by the appointed distributor, Juta Law and Academic Publishers.

The second set of problems arose with the digital version of the publication that Juta had offered to develop. The digital division of the legal publisher insisted on high prices. It was this inappropriate digital business model that created a row in the press. Then, a ‘pirate’ version of the publication was produced by the developer of the TRC Website, who claimed that he had the rights to a free online product. Public opinion was firmly behind the idea that the digital version should be free and that the publisher was profiteering out of South Africa’s pain.

In the end, hardly any copies of the Report were sold. The lesson was a hard one for a publishing company: digital content that is seen as part of the national heritage cannot be subjected to high-price commercial strategies.

The full text of the TRC Report is now online on the South African Government Information Website.

The LRC Website

Leaping the divide – Law and land

What is more difficult and diffuse is the route to providing access to really useful information that could help communities engage with the impact of legislation on their lives, whether the issue be housing policy or land tenure legislation, gender rights or press freedom.

If we go back to my initial example of rural communities and their access to the law, there is a dauntingly wide range of issues at stake — questions of individual agency, gender rights, fair labour practice, property rights and access to land, food sustainability, and a number of human rights issues — including legislative process as the ANC government implements the Communal Land Rights Act of 2004. In Matatiele, the village in which my father practised, there has been a long-drawn-out dispute about provincial boundaries, with the community challenging the legislative process in the Constitutional Court.

Questions of access to this kind of information are addressed in an ecosystem broader than the conventional publishing industry. NGOs and research units based in universities and national research councils address the wider concerns of community justice; using a variety of business models, these organizations produce a range of publications and work closely with communities. In the case of the Communal Land Rights Act, the Legal Resources Centre (LRC) supported a Constitutional Court challenge and published a book on the Act and its problems. The LRC, like other organisations of its kind, makes booklets, brochures, and reports freely available online. These efforts tend to be donor-funded and, increasingly, donors like the Canadian International Development Research Centre (IDRC) insist that publications be distributed under Creative Commons licenses. In the case of books published by commercial publishers, this means an open access digital version, and a print version for sale.

A major problem in providing commentary on legislative issues for the general public is that of ensuring a lack of bias. In the case of the Communal Land Rights Act — as well as for the other critical justice issues that it covers — the LRC explicitly aimed to provide a comprehensive insight into the issues for experts and the general public; the Centre accordingly placed the full text of its submissions to the hearings as well as answering affidavits on a CD-ROM and online. It also produces a range of resources, online text, and audio, targeted at communities.

Similar publication efforts are undertaken by a number of other NGOs and research centres — such as the Institute for Poverty, Land, and Agrarian Studies (PLAAS) at the University of the Western Cape and the African Centre for Cities at the University of Cape Town — on a wide range of issues. These organizations’ publishing activities tend to be interdisciplinary and the general practice is to place reports and other publications online for free download. There is a growing wave, in scholarly publishing in particular, to seek a redefinition of what constitutes ‘proper’ publishing; this process has yielded the notion of a continuum between scholarly (and professional) work and the ‘translation’ of this work into more accessible versions.

A useful strategic exercise would be to tag and aggregate the legal publishing contributions of NGOs and research centres — as these resources are often difficult to track, or hidden deep in university Websites — preferably with social networking spaces for discussion and evaluation.

Sustainability models

These civil society publishers are generally dependent on donor funding. What is needed is to recognise them as part of the publishing ecosystem. The question is how to create publishing models that can offer longer-term sustainability that might work beyond a well-resourced country like South Africa. The most promising and sustainable future looks to be in small and innovative digital companies using open source publishing models, offering free content as well as value-added services for sale. Examples are currently mostly to be found in textbook and training models, like the Electric Book Works Health Care series, which offers free content online, with payment for print books, training, and accreditation.

What is clear is that multi-pronged solutions must be found over time to the question of how to bridge the divide in African access to reliable and relevant legal information, and that a promising site for these solutions is the intersection between research and civil society organisations and community activists.

Eve Gray is an Honorary Research Associate in the Centre for Educational Technology at the University of Cape Town and an Associate in the IP Law and Policy Research Unit. She is a specialist in scholarly communications in the digital age, working on strategies for leveraging information technologies to grow African voices in an unequal global environment.

Photos: Eve Gray CC BY

Tear Down This (Pay)Wall: The End of Private Copyright in Public Statutes

authentication, Competition in legal publishing, Copyright in primary legal materials, Copyright in statutes, free access to law, Legal publishing, Preservation of electronic legal information, Preservation of legal information, Public access to legal information 6 Responses »

Jul 152011

A Copyright Will Protect You From Pirates - A Copyright Will Protect You From Pirates - by Ioan Sameli - http://bit.ly/lJrePv. Licensed under a Creative Commons by-sa 2.0 license

A Copyright Will Protect You From Pirates - by Ioan Sameli - http://bit.ly/lJrePv. Licensed under a Creative Commons by-sa 2.0 license

In 2008, the State of Oregon sent a takedown notice to Tim Stanley, asking him to remove copyrighted material from Justia, Stanley’s pioneering free law website. Such takedown notices are relatively common in the world of Napster, YouTube, BitTorrent, and LimeWire. However, Stanley, the founder of FindLaw, and later Justia, wasn’t publishing music or video. He was publishing the Oregon Revised Statutes on his website, and the State of Oregon claimed that Justia’s free version of the statutes was infringing its copyright.

That’s right: the State of Oregon claimed a copyright in its statutes, and it wanted to enforce that copyright against a company publishing them for free online.

The conflict was resolved amicably, with the state inviting Tim and Public.Resource.org’s Carl Malamud to Salem for a public hearing, in which the state decided to revoke its takedown demand. But the compromise was an uneasy one. Oregon did not disclaim copyright in the statutes — it merely agreed not to enforce its copyright claim against Justia and Public.Resource.org. This limited waiver means that anyone else who publishes (or quotes) Oregon statutes would face a similar specter of copyright infringement.

This may seem like an isolated incident — perhaps the work of a renegade legislative staff member with an ambitious view of copyright law. But this incident isn’t isolated. LexisNexis believes that it owns the Georgia Code. And the statutes of Colorado, Wyoming, and Mississippi. The free Websites of many state legislatures contain copyright notices warning the world that copying public law is illegal and punishable under copyright law.

Copyright in public law means that a state or a publisher could restrict fundamental rights in law. Things like copying — even citing the law in a brief — could be considered an infringing use. This makes lawyers, journalists, the public, and even judges into pirates when they quote from statutes. It subjects innovators, entrepreneurs, and other publishers, who could introduce competition in legal publishing, to potential copyright liability. It chills innovation and blocks the widespread publication of the law.

And although statutes are clearly in the public domain, they are one of the last bastions of closed-source content on the Internet. A combination of state budget cuts, our antiquated process for codifying the law, and aggressive contract terms from publishers have conspired to create private copyright claims in public law.

How did we get to this state of affairs? How can any commercial publisher believe that it “owns” our public law? Can a publisher’s claims to intellectual property in a state’s laws possibly be enforceable? And what can we do about it?

I’m tired of copyright being used to monopolize public law. This post should establish once and for all that copyright doesn’t protect public statutes, legislatures can’t grant private copyrights, and contract code publishers who mix their editorial work with state statutes can only claim very limited protection under copyright. It’s time for publishers, legislatures, and innovators to open state statutes.

How Can a Publisher Copyright Statutes It Didn’t Write?

At the outset, it seems crazy to say that publishers can copyright the law at all. After all, legislators draft, debate, amend, and pass the law, and governors sign bills into law. Most people consider statutes to be written by the people, since they are written on the people’s behalf by their elected representatives.

Publishers don’t write the law. So how can they claim copyright in it?

Raw bills signed into law by governors aren’t the same thing as the codes that appear in bound volumes on the shelves. Statutes and codes are organized into outlines, with similar topics bunched together into titles, chapters, and sections. So, for example, a state’s election laws might all appear within the same title in the state code. This “codification” process is sometimes dictated in the bill itself (especially when the bill amends an existing statute on the books), but often the codification process is left up to editors after the fact.

In addition, most codified statutes have headlines (called “catchlines” in the art) at the top of each section, and these don’t appear in the bill versions of statutes — they are later added by editors.

Codifiers and publishers add varying degrees of editorial enhancements to statutes, although many of these enhancements are pretty mechanical. Hyperlinks between statute sections or to cases, or annotations showing where statutes have been cited, are good examples of additions that are more mechanical than editorial.

Finally, in the codification process, editors will occasionally need to resolve conflicts between a recently passed law and the rest of the code section where the law will be placed. For example, some statutory titles have definitions that apply to all of the code sections beneath. When a new law with conflicting definitions is codified in that section, an editor must resolve the conflicts (sometimes requiring commercial publishers to change an enacted statute, if you can believe that).

For most states, this codification process is simply a part of the legislature’s job. They employ a team of editors in an office of codification counsel, and the legislature codifies passed bills into the state’s statutory code.

The codification process is difficult, time consuming, and expensive. Many states (and Congress) employ teams of lawyers and legislative experts who organize and annotate their enacted statutes into codified volumes for publication. However, some states outsource the editorial operations to legal publishers such as LexisNexis and West Publishing Co. (wholly-owned subsidiaries of the Anglo-Dutch publishing giant Reed Elsevier and Canadian mega-conglomerate Thomson Reuters, respectively). And, apparently, publishers require in their contracts that the state grant to the publishers all of the intellectual property in the state codes that result.

Thus we have commercial publishers who claim a copyright in state statutes.

Is a Private Copyright in State Statutes Constitutional / Enforceable?

That briefly explains why a commercial publisher is even in a position to make a claim of intellectual property in statutes. But the idea of state-owned (or private, foreign-owned) copyrights in public law is so counterintuitive, we should examine whether the claim is defensible. Is copyright in state statutes enforceable?

Crown of King Cedric Rolfsson of An Tir by Jeff Martin / Godfrey von Rheinfels - http://bit.ly/lg40hb - Licensed under a Creative Commons CC BY-NC 2.0 License

The new crown copyright?

Historians would recognize this kind of claim to copyright in state law. Before the American Revolution, the common law recognized the King’s (or Queen’s) right to copyright in a nation’s laws – the term was called “crown copyright.” Any attempts to copy or quote the law must be authorized by the sovereign. Although crown copyright still exists in the world, the United States for more than 200 years has stood for the rebellious idea that its law is owned by the people, and it may be used freely by them without the consent of the government.

The Founding Fathers considered copyright sufficiently important to address it in the Constitution’s Article I, Section 8 grant of powers to Congress: The Congress shall have the power “to Promote the Progress of Science… by securing for limited Times to Authors… the exclusive Right to their… Writings.”

It was clear enough that copyright was the purview of the people’s representatives in Congress, not of the executive. Congress removed all doubt in enacting 17 U.S.C. § 105, which establishes that works of the federal government (not just statutes, but all works) are not protectable by copyright — the federal government may not restrict the power of the people freely to use government works.

American copyright law is the opposite of crown copyright. Not only does the President not have a copyright in government works, but the entire federal government is barred from asserting copyright protection for government works.

Although the U.S. Code has little to say about copyright claims that states might assert in state codes, early American courts addressed the question several times, thereby establishing the legal framework for evaluating these claims.

Courts: State Codes Belong to the People

Courts have held time and time again that statutes may not be copyrighted, either by states or by private publishers. Some of our oldest copyright cases address issues of legal information; these cases generally held that the law is uncopyrightable. See generally L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719 (1989), and cases cited therein.

First, the Constitution limits the protection of copyright to “authors,” and courts have held that, in copyright law, government actors (whether state or federal) cannot be considered the authors of public law.

In Wheaton v. Peters, one of the reporters of early American Supreme Court opinions, Richard Peters, Jr., republished without permission twelve volumes of the reports of his predecessor Henry Wheaton. 33 U.S. (8 Pet.) 591 (1834). In its first opinion on copyright, the Court held that Wheaton could have no copyright in the opinions of the U.S. Supreme Court. 33 U.S. at 668 (“The Court are unanimously of the opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.”)

Copyright Criminal by Alec Couros: http://bit.ly/kpbOYu - Licensed Under a Creative Commons CC BY-NC-SA 2.0 License

The Supreme Court in Banks v. Manchester held that a publisher of Ohio Supreme Court opinions could not be liable in copyright, because neither the previous publisher nor the court could be considered an author under the Copyright Act of 1873. 128 U.S. 244 (1888) (“Judges . . . can themselves have no . . . proprietorship, as against the public at large, in the fruits of their judicial labors. . . . [N]o copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all. . . .”)

This rationale applies with even more force to legislatures, where statutes are written not by individual judges, but by the people’s elected representatives. If copyright law doesn’t consider judges to be authors, it certainly won’t consider a representative legislature to be one.

Second, courts have consistently held that citizens have a Constitutional due process right to have access to the laws that govern them. Because copyrights in state law limit that access, courts have time and again resolved the conflict by holding that state statutes may not be copyrighted. See Davidson v. Wheelock, 27 F. 61 (C.C.D. Minn. 1866) (publisher can’t copyright state statutes, even if state purports to give exclusive publishing rights); Howell v. Miller, 91 F. 129 (6th Cir. 1898) (“no one can obtain the exclusive right to publish the laws of a state”) (Harlan, J., sitting by designation); Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (Mass. 1886) (“Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices.”)

State legislatures cannot claim copyright to their statutes, because legislatures are not considered authors for the purposes of copyright law, and because the public’s due process rights to access the law serve as a limit on the copyrightability of state statutes.

Courts: Private Publishers Face Limited Copyright for Even Their Own Work

Even where they add material to public codes, publishers’ copyright claims in that work are limited by the Copyright Clause of the Constitution and by copyright provisions in the U.S. Code.

The Copyright Clause requires that works involve some modicum of creativity, so purely mechanical operations such as adding page numbers or numbers in an outline are not copyrightable. Feist Pubs. Inc. v. Rural Telephone Servs. Co., 499 U.S. 340 (1991). The publisher of a treatise about state statutes could claim copyright protection, but a publisher could not, for example, claim copyright in mechanical operations such as adding the next number in sequence to a codification, or collecting cases that cite to a section of the code. See also Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2nd Cir. 1998) (pagination in caselaw reporters is insufficiently creative to merit copyright protection).

Further, when legislatures subsequently sign the original works of publishers into law, the authored works pass into the public domain. See Building Officials & Code Administrators Intl., Inc. v. Code Tech., Inc.., 628 F.2d 730 (1st Cir. 1980) (“BOCA”) (model code authored by private organization entered public domain when adopted by the State of Massachusetts); Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791 (5th Cir. 2002) (once the government takes action and passes the model code into law, “there is no reason to believe that state or local laws are copyrightable.”).

Finally, the act of organizing new laws into the outline format of the existing code probably deserves very little copyright protection. Where a legislature amends a particular code section, the publisher’s act of processing the amendment is not creative enough to justify copyright protection under Feist: The process of placing a new law where it belongs in an existing code is often either so straightforward or so arbitrary as not to qualify as a creative act.

How Copyright Law is Applied to State Codes

Based on this discussion of copyright law, we can evaluate the copyright claims that publishers would likely make about state statutes. The following seems crystal clear:

Law Books by Mr. T in DC: http://bit.ly/uhkyk - Licensed under a Creative Commons CC BY-ND 2.0 License

1. Federal statutes (and all federal materials, really) are uncopyrightable, period. Congress has prescribed this by law, and in any event, the U.S. Code is codified by the federal Office of Law Revision Counsel, not by a private publisher.

2. For state statutes, the underlying statutes themselves are almost certainly uncopyrightable. Courts consider them to have been written (constructively) by the people, and due process requires that people have unimpeded access to the laws that govern them.

Although courts haven’t addressed the examples below, the caselaw suggests that private publishers can’t claim much copyright protection in state codes:

Where public employees of states codify, organize, annotate, or write catchlines, is the resulting compilation copyrightable by the state? Courts might hold that the organization of statutes and catchlines meet the minimum constitutional requirements of creativity outlined in Feist. (Annotations, on the other hand, which are effectively lists of citing articles and cases, are uncopyrightable “mere facts”).

However, the same due process claims that protect the public’s right to the underlying statutes also protect their right to the codified statutes, especially if the codified version is the state’s “official” version of the statutes. Moreover, states and state employees are agents of the people, and courts are likely to hold that the work product of states and state employees is owned collectively by the people in the public domain. The official code, when codified by the state, is uncopyrightable.

Where states hire a publishing company to codify their enacted statutes, is the resulting compilation copyrightable? When a state outsources its work to private publishers, the publishers are agents of the state. Under agency law, publishers could have no more claim to copyright than the contracting agent could. So if the state cannot claim copyright in its code, it cannot circumvent the copyright law by contracting the work to a private publisher.

The definitive copyright treatise Nimmer on Copyright adds that contract law is an important part of the analysis: Nimmer points out that that if the state’s publishing contract classifies the publisher’s codification as a “work for hire,” then the state owns the resulting intellectual property on behalf of its citizens. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright §§ 5.12 n.29 and 5.13[B][2]. Where states specify in their contracts that contractors are performing the work of the state, are agents of the state, or are performing a work for hire, courts would be unlikely to enforce copyrights for the agent to which the principal is not entitled.

Could a publisher claim copyright in its organization of a state code? Although copyright law protects the “compilation” of otherwise uncopyrightable elements (the classic example being an anthology of poetry, in which the poems themselves have passed into the public domain, but in which the author can claim copyright for their selection and arrangement) — publishers of state codes have much less discretion in their work than do publishers of other kinds of compilations. Publishers of state codes may not, for example, decide which enacted laws to include in the code. There is no element of selection. And the code has a pre-established organizational structure that the publisher must follow in the codification process. The placement of a passed law in the code section to which it most closely relates may require skill, but it is not creative for purposes of the copyright law.

In short, courts should protect original, creative editorial work, such as articles about the law written by an author. But they should not give private publishers copyright protection where the publishers are performing functions necessary for codifying the official version of the code (such as organizing by topic or writing catchlines). Adoption of this view would protect new creative works while vindicating citizens’ important due process rights in public domain law.

Policy: Should We Root for Publishers?

Printing Press at the GPO by Ed Walters - Licensed under a Creative Commons CC BY-NC 2.0 License

Printing Press at the GPO by Ed Walters - Creative Commons CC BY-NC 2.0 License

Commercial legal publishers would likely argue that copyright should protect their creative work. Writing catchlines and organizing codes require expertise, and are expensive. If anyone could copy the completed work, they might argue, publishers would never be able to afford to employ editors, and so would never be able to afford to pursue this line of business. Legal publishing is a for-profit enterprise, and companies should be allowed to recoup their costs, even for state work.

However, when the work is on public law, the analysis must be different. First, there are important policy implications to limiting access to statutes. Copyright is not the only way for publishers to be rewarded for their labors. And if courts choose not to enforce private copyright in public law, publishers could simply charge each state a fair rate to compensate them for their efforts.

Second, if publishers are using state contracts to create proprietary codes, the publishers are effectively receiving corporate welfare, a taxpayer-funded subsidy to create private works. Especially in times of limited budgets, states should be wary of spending taxpayer dollars in this way. Taxes are well spent to create public infrastructure, such as highways (or statutes). But taxpayers would revolt if states financed toll roads owned by foreign transportation conglomerates. Public financing of copyrighted statutes is no different.

How States Can Take Back their Codes

Just this week, the Uniform Law Commission passed the Uniform Electronic Legal Materials Act, designed as a blueprint for state laws that would require preservation and authentication of state statutes published online, while making those statutes permanently available to the public. The Act would have states designate a state employee or agency, not a private publisher, to serve as an “official publisher” of statutes for purposes of authenticating and preserving state codes. To preserve the public’s permanent access under the Act, states should take whatever steps are necessary to restore statutes to the public domain. The Act thus points to the central role that the government, not private publishers, must play in the stewardship of our state statutes.

There are some straightforward ways in which states could clear up any confusion about the copyrightability of their state statutes.

States could hire their own codification counsel, do the work of statutory codification in-house, and make clear that the end result is in the public domain. To the extent that private publishers sell proprietary versions of the code, those publishers may use the public version of the code as a starting point, and copyright their improvements. This approach is recommended as a best practice, but it may not be feasible for all states in difficult economic times.

Separately, to preserve statutes in the public domain, a state could contract with a commercial publisher for private codification services, but specify clearly in its contract that the resulting code is a work made for hire, and, consequently, is in the public domain. In this case, it would make sense for the state to require the publisher to deliver a code free of proprietary commercial enhancements so that the work may pass completely into the public domain. If publishers wish to add proprietary content, they may use the public code as their starting point. But such proprietary content would not be subsidized by tax dollars.

Finally, legislatures can simply enact the codified statutes. Congress does this with the codified U.S. Code, effectively blessing the work of its Office of Law Revision Counsel in codifying statutes. If a legislature merely enacted its code by voice vote, the Code would pass into the public domain.

Conclusion

Commercial publishers perform an important role in codifying state statutes. Their expertise and skill are vital to protecting our rule of law, which is rooted in an informed citizenry. However, statutes are by definition in the public domain, and rightly so. Efforts to own our public law, by American-owned or foreign-owned publishers, violate both our understanding of copyright and our due process rights to access the laws that govern us. When states work together with private publishers to codify their official statutes, neither law nor policy suggests that the publishers may own the resulting codes.

Ed Walters is the CEO of Fastcase. Although nobody at Fastcase believes statutes are copyrightable, the company has no plans to be the test case for this proposition, thank you very much. Views expressed here are his own.

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How Can a Publisher Copyright Statutes It Didn’t Write?

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Conclusion

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