The Meaning of 'Free Access to Legal Information': A Twenty Year Evolution
Free online access to legal information is approaching maturity in some parts of the world, after two decades of development, but elsewhere is still in its early stages of development. Nowhere has it been realised fully. The main question asked in this paper is “what should 'free access' mean in relation to legal information in order for it to be fully effective?” As with software, we must ask whether free access to law is ‘free as in beer, or free as in speech?’
The six most significant attempts over the last twenty years to answers this question are analysed to show that a substantial degree of international consensus has developed on what ‘free access to legal information’ now means. Of thirty separate identifiable principles, most are found in more than one statement of principles, and many are now relatively common in the practices of both States and providers of free access to legal information (government and NGO). Many concern measure to avoid the development of monopolies in publication of the core legal documents of a jurisdiction. Which principles are essential to the meaning of ‘free access to legal information’, and which are only desirable, is usually clear.
Two complementary meanings of ‘free access to legal information’ emerge. The first states the obligations of the State in relation to ensuring free access to legal information – but not necessarily providing it. The key elements concern the right of republication. The second meaning states the conditions under which an organisation can correctly be said to be a provider of free access to legal information. We argue that a better definition is needed than the ‘consensus’ suggests, and propose one based on the avoidance of conflicts with maximisation of the quality and quantity of free access.
One use of such a set of principles is to help evaluate the extent to which any particular jurisdiction has implemented free access to legal information. A brief example is given of Australia, a county with a generally good record but some deficiencies.
Finally the paper considers what steps should be taken to most effectively realise a reformulated concept of ‘free access to legal information’, by civil society, by States at the national level, and at the international level.
AALL (American Association of Law Libraries). Uniform Electronic Legal Material Act: Summary and Frequently Asked Questions, American Association of Law Libraries, 2013 at <http://www.aallnet.org/Documents/Government-Relations/UELMA/UELMAFAQs.pdf >
Bintliff, B. ‘The Uniform Electronic Legal Material Act Is Ready for Legislative Action.“ Vox PopuLII Blog, 15 October 2011, at <http://blog.law.cornell.edu/voxpop/2011/10/15/the-uniform-electronic-legal-material-act-is-ready-for-legislative-action/>
Bruce, T. “Legal information, open models and current practice.” Crown Copyright in Cyberspace (Conference), Centre de recherche en droit public, University of Montreal, 12 May 1995, at <http://www.droit.umontreal.ca/english.html>
Greenleaf G, Mowbray A and Lewis D. Australasian Computerised Legal Information Handbook, Butterworths, 1988, Chapter 4 “Legal information retrieval in Australia.” at <http://www2.austlii.edu.au/cal/guides/retrieval/handbook/index-4.html>
Greenleaf, G, Mowbray, A. King, G and van Dijk, P. "Public access to law via internet: the Australasian Legal Information Institute." Journal of Law & Information Science, Vol 6, Issue 1, at <http://www.austlii.edu.au/au/journals/JlLawInfoSci/1995/5.html>
Greenleaf, G and Bond C. “Reuse rights and Australia's unfinished PSI revolution.” Informatica e diritto- Rivista internazionale. 1(2): 341-69, 2011 (ESI, Naples) at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1951625>
Greenleaf, G. “Free access to legal information, LIIs, and the Free Access to Law Movement.” Ed. Danner, R and Winterton, J IALL International Handbook of Legal Information Management. Ashgate, 2011, at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1960867>
Greenleaf, G. “Jon Bing and the History of Computerised Legal Research - Some Missing Links.” Ed. Torvund, O and Bygrave, L Et Tilbakeblikk På Fremtiden (‘Looking Back At The Future’), Unipub, Oslo, 2004: 61-75
Martin, P "Abandoning Law Reports for Official Digital Case Law." Cornell Legal Studies Research Paper No. 11-01, at <http://scholarship.law.cornell.edu/clsops_papers/85/>
Martin, P "Legal Information - A Strong Case for Free Content, An Illustration of How Difficult 'Free' May Be to Define, Realize, and Sustain." Conference on Free Information Ecology. March 2000, at <http://www.law.cornell.edu/working-papers/open/martin/free.html>
Martin, P “Pre-digital law: How prior information technologies have shaped access to and the nature of Law.” Crown Copyright in Cyberspace (Conference), Centre de recherche en droit public, University of Montreal, 12 May 1995
NCCUSL (National Conference Of Commissioners on Uniform State Laws) Uniform Electronic Legal Material Act With Prefatory Note And Comments, NCCUSL, 4 October 2011
Perritt, H Public Information in the National Information Infrastructure. Report to the Regulatory Information Service Center, General Services Administration, and to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, May 20, 1994; for availability, see <http://books.google.com.au/books/about/Public_information_in_the_national_infor.html?id=u99ayDu94_4C&redir_esc=y>
Perritt, H “Market Structures for Electronic Publishing and Electronic Contracting on a National Research and Education Network.” Conference on Information Infrastructure for the 1990s. Kennedy School of Government, Harvard University, November, 1990
Poulin, D “Open access to law in developing countries.” First Monday, 9 (12), 6 December 2004, at <http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/1193/1113>
Rubacki, M “Legislation online from Australian governments: Achievements and issues.” AustLII Research Seminar, 7 May 2013 at <http://www.austlii.edu.au/austlii/seminars/2013/1.pdf>
Sappa, C “Public sector databases - the contentions between sui generis protection and re-use.” Computer and Telecommunications Law Review (2011) 217
Suber, P “Open Access Overview.” 2013 (web page, updated) at <http://legacy.earlham.edu/~peters/fos/overview.htm>
Wisconsin Bar Proposed Citation System for Wisconsin. Report to Board of Bar Governors Technology Resource Committee, June 22, 1994, at <http://www.law.cornell.edu/papers/wiscite.overview.htm>
Authors submitting a paper to JOAL automatically agree to confer a limited license to JOAL if and when the manuscript is accepted for publication. This license allows JOAL to publish a manuscript in a given issue, by any means, anywhere in the world. Authors whose submissions have been accepted then have a choice of:
- Dedicating the article to the public domain. This allows anyone to make any use of the article at any time, including commercial use. A good way to do this is to use the Creative Commons Public Domain Dedication Web form; see http://creativecommons.org/license/publicdomain-2?lang=en.
- Retaining some rights while allowing some use. For example, authors may decide to disallow commercial use without permission. Authors may also decide whether to allow users to make modifications (e.g.translations, adaptations) without permission. A good way to make these choices is to use a Creative Commons license.
- Go to http://creativecommons.org/license/.
- Choose and select license. Choose "generic" if you are in the U.S. and "text" for JOAL articles.
- What to do next — you can then e–mail the license html code to yourself. Do this, and then forward that e–mail to JOAL’s editors. Put your name in the subject line of the e–mail with your name and article title in the e–mail.
- Retaining full rights, including translation and reproduction rights. Authors may use the statement: © Author 2013 All Rights Reserved. Authors may choose to use their own wording to reserve copyright. If you choose to retain full copyright, please add your copyright statement to the end of the article.