After 15 Years, Is Free Access to Law Here to Stay?

The question in the title is the driving force behind a joint research initiative the Centre for Internet and Society has recently undertaken in collaboration with pioneering institutions, LexUM,and the South African Legal Information Institute.  Over the past fifteen years, institutions providing free access to legal materials have transformed the modes in which legal information is produced and used. However, there have been few analyses of the ways in which legal information repositories operate. Lessons learned, best practices and successful models have not been systematically documented, and administrators may not have access to useful guidance or peer support. The study will bridge this gap by analyzing a variety of free access to law initiatives around the world in greater detail.

In 1992, the first Legal Information Institute (LII) at Cornell University began to place primary sources of law and interpretive legal materials online, free of charge.  The Free Access to Law Movement soon expanded to form a broad network of LIIs who shared the belief that legal information is digital common property and should be accessible to all. Today, citizens around the world can access legal information in multiple languages through easily searchable databases. Among the resources available are statutes, bills, court decisions, bilateral treaties, law journal articles, legal reform documents and much more. This freely available legal information has helped make the law more accessible to audiences previously underserved by costly commercial databases, and has allowed comparative legal research to become more practicable than ever before.

Research will focus on gauging the broader societal effects of free access to law initiatives, as well as on understanding the diverse factors which contribute to or undermine their sustainability.The CIS will be overseeing research in Asia, while SAFLII and LexUM will cover South and West Africa, the South Pacific, Canada and Australia. The global scope of the study will facilitate the sharing of expertise and best practices within the global network of LIIs.

The value of creating a legal information commons has been clearly demonstrated. Access to legal materials helps to strengthen judicial systems, improve legal expertise, guide policymaking and maintain the rule of law. Legal transparency helps businesses assess risk and encourage entrepreneurship. Citizens and civil society actors require access to law to participate in the political process and assert their rights. These audiences form an important constituency for open access to legal scholarship and demonstrate the need to further examine the core benefits of free access to law initiatives.

Online free access to legal materials has also been an indispensable tool in underserved regions where a host of factors often undermine access to legal information. The following examples, derived from preliminary CIS research throughout Asia, demonstrate how free access to law can bridge various gaps in legal information accessibility. In some cases, laws may be completely unavailable. For example, bureaucrats may demand bribes before allowing access to copies of a law, or governments may wish to keep certain implementing guidelines or regulations a secret. In other cases, a law might have simply been lost through lack of proper storage or record-keeping.

A second problem occurs when laws and case law are available only in certain locations or certain forms. A law may be available only in hard copy or in one or two libraries in the capital city, for example. This causes difficulties for citizens and practitioners in remote areas who lack the resources to travel. Sometimes, the libraries containing the legal information also may require special permissions to access. In other instances, legal materials may have been digitized but not properly stored or networked.

Digitizing and uploading laws to organized, searchable databases presents its own challenges, and some governments lack the technical capacity to do so. However, digitizing and uploading laws does not guarantee general public access. In some countries, laws may be online but placed in pay-per-use databases. And some governments retain a copyright or similar intellectual property rights in their laws and other documents. This may mean that NGOs or LIIs cannot copy, consolidate, or re-post certain legal information without exposing themselves to copyright liability. The commercialization of legal information also restricts access to individuals and firms able to pay costly subscription fees.

Copyright and the commercialization of legal information can inhibit the free flow of legal information—notably when legal information can be better organized, preserved and disseminated further under more open standards. Because of the importance of free access to law, a significant focus of the research will be to identify factors that contribute to the sustainability and success of free access to law initiatives. This is of great importance in Asia, where the local capacities of LIIs require further strengthening before their databases can begin to rival their commercial counterparts.

Many challenges remain for the development and sustainability of free access to law initiatives in the Asian region. Searchable legal information must be provided in both English and regional languages, while local technical capacities require further development. Mariya Badeva-Bright of SAFLII also notes that LIIs need to secure working partnerships within the judicial branch of government in order to reduce the burdens of digitization and to promote common standards in preparation of legal material. The AsianLII has only begun to scrape the surface of valuable legal information that is potentially available and must continue to develop and strengthen partnerships in the region.

The study will have several concrete results. Upon completion of the study, a Free Access to Law Best Practices Handbook will be published and will serve as a comprehensive knowledge resource for both existing and nascent free access law initiatives. The handbook will outline various steps in creating and maintaining successful free access to law initiatives, while ensuring that important aspects of design and sustainability are not overlooked. Also, a comprehensive online library will host current and future materials relating to the free access to law movement, including a collection of free access to law case studies.

Research by the CIS, LexUM, SAFLII, and their respective team of researchers is expected to commence within the next few months.  In the end, the free access to law study will provide future initiatives and existing LII networks with proven and adoptable best practices. This research will increase the chance that nascent initiatives will be successful, and support the continued growth of the thriving legal information commons.