This post is a response to comments made by Colin Lachance, CEO of CanLII on a Slaw.ca article titled
Trusting the System. I recommend reading his remarks in full.
I want to preface my reply with a thank you to Colin for engaging in this debate and helping to raise awareness about the importance of licensing terms for court documents.
This reply poses five questions:
- Should Alberta court decisions be subject to Canada's most restrictive licensing regime?
- Could CanLII offer granularity in its licensing terms?
- Who is holding CanLII back?
- Should academics be the only people with access to Canada's legal decisions?
- Who should decide what the public gets to know about legal decision-making?
1. Should Alberta Court Decisions Be Subject to Canada's Most Restrictive Licensing Regime?
[CanLII] is constrained by the limitations imposed by the most restrictive licensor of the content in the database
Should Alberta's court decisions be subject to the "most restrictive" (worst) licensing terms in Canada or the terms that Albertans think are appropriate? Moving to CanLII will change how Albertans can access their legal decisions (mostly for the better but this is an overlooked trade-off).
2. Could CanLII Offer Granularity in its Licensing Terms?
You note (correctly, I'll readily admit) that CanLII's usage terms are more restrictive than most courts.
CanLII's current licensing scheme is a bit like a bookstore with a bin that says "Books $5 Each" even though some of the books are $40 first edition hardcovers and others are $0.50 used paperbacks. Why lump them all together and reduce the value of the books?
Flickr (an image sharing service owned by Yahoo) has long had a way to search for Creative Commons photos (https://www.flickr.com/creativecommons/) and its APIs show the licensing information for each image. CanLII could do the same for decisions.
3. Who Is Holding CanLII Back?
... after two years of effort, we successfully convinced one Queens Printer to release us from an incredibly restrictive license and to move to an open government license.
That's great but CanLII's terms didn't change (the Wayback Machine shows the terms have been the same since at least early 2007: https://web.archive.org/web/20070324023958/http://www.canlii.org/en/info/terms.html).
Is it possible for you to identify which court(s) are currently not allowing mass downloading of cases? I always assumed it was a term decided upon by CanLII because I've never seen a term like that for a government data source but your comments here make my think I may be mistaken. Which courts have imposed the other terms that are a part of CanLII's end user license?
4. Should Academics Be the Only People with Access to Canada's Legal Decisions?
We know that we have a resource that can enable exciting academic research, and we have, in fact, entered into arrangements with academics at universities to make that possible.
Tenured professors are not the only people who can do useful research. And I think there are important differences in opinion and objectives between tech-savvy Canadians and law professors.
Is the academic access program available to any researcher? Only professors? Is it appropriate for CanLII to decide who gets to do what legal research in Canada? I think the last question is especially important in light of the fact that CanLII is funded entirely by Canada's law societies.
5. Who Should Decide What the Public Gets to Know About Legal Decision-making?
There are several reasons, but search “globe24h” for articles on Slaw, and features in the Globe and Mail, Financial Post and CBC to see just one of the reasons why courts aren’t going to be in a hurry to make all decisions widely available to everyone for any purpose.
I'm familiar with the site and actually spoke with another lawyer recently who was retained by someone who was bothered by globe24h. Canadian courts have long espoused the principle of open courts (although with more rhetoric than action some of the time) - decisions are supposed to be disseminated to the public. globe24h may have a nasty business model but our system has safeguards in place to deal with truly sensitive information in decisions because everyone knows that they'll be made public.
There are far worse things on the Internet than globe24h and there are a lot of benefits to taking court decisions out of musty basements and giving them to the public without reservation.
Although we may not 100% agree, I'm glad that "[CanLII is] not satisfied with the limitations and [has] sought and continue to seek to reduce the scope and impact of these limitations." The sooner this happens the sooner Canada's programmers can unleash a new wave of legal innovation.