JurPC Web-Dok. 191/2011 - DOI 10.7328/jurpcb/20112612183

Martin Backes *

Interview Graham Greenleaf - Free Access to Law and Legal Information - Challenges for Europe and Germany - Interview with Prof. Graham Greenleaf AM(1) – Conducted by Martin Backes(2)

JurPC Web-Dok. 191/2011, Abs. 1 - 43


Autorenprofil


1. Graham, you are one of the co-directors of the Australasian and of the World Legal Information Institute (AustLII, WorldLII). Can you tell us more about AustLII and WorldLII? What are the characteristics and what is the relevance of these legal databases? JurPC Web-Dok.
191/2011, Abs. 1
Since its creation 1995 AustLII has become the largest Australian online legal research facility, whether free access or commercial. The Australian Financial Review once described AustLII as ‘the world’s most comprehensive free online legal information service’. Now comprising over 450 databases, AustLII includes Australia’s largest collection of databases of current case law, legislation, Law Reform Commission Reports, Law Journals and the most comprehensive national treaties collection on the Internet. AustLII receives over 900,000 accesses per day, and is regularly rated by HitWise as Australia’s most used legal website. Abs. 2
Internationally, AustLII has taken the leading role in the global development of free access legal research infrastructure. AustLII’s open source software, particularly the Sino search engine, and its expertise have been used to assist the development of seven other free access Legal Information Institutes (LIIs) which between them provide databases of laws from over 100 countries, plus international organisations. Since 2002 AustLII has developed and operated the joint portal for the international network of free access Legal Information Institutes (LIIs), the World Legal Information Institute (WorldLII). WorldLII now provides access to nearly 1.000 databases from over 100 countries, over three million legal documents, located on 12 collaborating LIIs(3). The International Association of Law Librarians (IALL) gave WorldLII its 2008 legal website award. Abs. 3
Data is synchronised and replicated daily between AustLII and the other collaborating LIIs, for the purpose of making it searchable via WorldLII. However WorldLII is not yet a global legal information service. It provides a primarily English language interface, and its databases are primarily in English, but with some searchable content in other languages, particulary Chinese, Bahasa Indonesian, Vietnamese and Portuguese. AustLII’s SINO search engine is being developed gradually to make it capable of searching other double-byte Asian language encodings in addition to Chinese and Vietnamese. Abs. 4
2. So, there are more Legal Information Institutes (LIIs) than AustLII and WorldLII all over the world? How are they organized, what connects them? Abs. 5
Yes there are more. Two of them played in addition to AustLII a key role in early developments: The Legal Information Institute (Cornell) and LexUM. Abs. 6
The Legal Information Institute was started at Cornell University Law School in 1992, and developed by 1994 a number of databases primarily of US federal law (particularly the US Code and US Supreme Court decisions). ‘The LII’, as it became known, was the first significant source of free access to law on the Internet, and demonstrated that a free access service could provide both high quality document presentation, and very high rates of access. US federal law is still the main focus of the LII (Cornell). Abs. 7
LexUM at the University of Montreal commenced in 1993 created the first Canadian legal site and the first legal site available in French, as well as carrying out many research and consultancy projects. In 2000 LexUM built the Canadian Legal Information Institute (CanLII), which quickly became a very large national LII comprehensively covering Canada’s federal system, matching AustLII in size and usage. Abs. 8
From 2000 AustLII started to use its search engine (Sino) and other software to assist organisations in other countries, initially limited to those with academic roots, to establish LIIs with similar functionality. AustLII helped to establish between 2000-04 servers and databases for LIIs which operate now independently: Abs. 9
1. the British and Legal Information Institute (BaiLII) formed in 2000 and based at the Institute of Advanced Legal Studies London, Abs. 10
2. the Pacific Islands Legal Information Institute (PacLII) in 2002 operated by the University of South Pacific at the moment, Abs. 11
3. the Hong Kong Legal Information Institute (HKLII) since 2002 run by the University of Hong Kong, Abs. 12
4. the Southern Africa Legal Information Institute (SAFLII) in 2003 operated by the South African Constitutional Court Trust and now in the process of reorganisation. Abs. 13
5. the New Zealand Legal in Information Institute (NZLII) since 2004 based at the University of Otago's Faculty of Law Abs. 14
and Abs. 15
6. CyLaw in Cyprus in 2002 which is now merging with a local university. Abs. 16
For most of them AustLII operated the servers from Sydney for a period on behalf of its local partners, with progressive local take-over of operations. All use AustLII’s Sino search engine. Responsibility for obtaining and developing legal data was usually undertaken by the local partner from the outset. Abs. 17
However all of the systems AustLII has assisted are now operated with independent local control and resources, and this is the major reason for their success. AustLII’s aim of assisting partners to achieve local take-over as quickly as possible has been effective. Abs. 18
In November 2010 AustLII launched the Legal Information Institute of India (LII of India) with four Indian law school partners. Abs. 19
The two distinguishing characteristic of all ‘LIIs’ in my usage are that they publish legal information from more than one source (not just ‘their own’ information), for free access via the Internet, and they collaborate with each other through membership of the ‘Free Access to Law Movement’. Most but not all share three other characteristics. They collaborate through data sharing networks or portals, and also technical networks for back-up security purposes. Most are independent of government, though this is diminishing as a distinguishing feature. Abs. 20
AustLII and all the other LIIs free access services are not funded by usage charges or advertisements. The LII's funding is provided by a wide range of organisations who have an interest in facilitating access to legal information of particular types like governments, universities, barristers and lawyers. AustLII has the most complex ‘multi-contributor’ model, with over 270 institutional contributors, plus individual contributors. AustLII sees this diversity of funding sources as one of its principal assets, despite the cost of maintaining it, because it provides something close to a guarantee against a ‘single point of failure’ in sustainability of funding. No single type of funding source can affect more than about 10% of AustLII’s funding stream. Abs. 21
3. Can you summarize the concrete aims/goals of the just mentioned Free Access to Law Movement (FALM)? Are there more members than the mentioned LIIs above in this movement? Abs. 22
The Free Access to Law Movement (FALM), established in 2002, is a loose affiliation of 34 legal information institutes at the moment. Seven of these LIIs established the organisation to further free access to law globally. The membership of FALM has expanded to include other national LIIs from France, Ireland, Kenya, Germany, India and the Philippines, and Juridicas (UNAM, Autonomous University of Mexico), the Thai Law Reform Commission, Droit.org (France), Jersey Legal Information Board, and Ugandan Legal Information Institute (ULII), and AltLaw (USA), the Kathmandu School of Law (Nepal), and MalawiLII. In addition there is now a class which we could loosely describe as members who facilitate the technical development of free access to law, rather than primarily publishing their own databases for free access, including ITTIG (Italy), the Institute of Law and Technology (Autonomous University of Barcelona, Spain), IIjusticia (Argentina) the Cardiff Index to Legal Abbreviations and LEXUM. Abs. 23
The principal aim of the FALM, re-affirmed at its 2007 meeting, is the provision of assistance by its members to organisations who wish to provide free access to law in countries where that has not yet occurred. This has been successful. It also provides mutual support to organisations already providing free access to law who wish to join the FALM. The Declaration recognises ‘the primary role of local initiatives in free access publishing of their own national legal information’. A second aim stated in the Declaration is that ‘All legal information institutes are encouraged to participate in regional or global free access to law networks’. As the Declaration puts it, the aim is ‘To cooperate in order to achieve these goals and, in particular, to assist organisations in developing countries to achieve these goals, recognising the reciprocal advantages that all obtain from access to each other's law.’
The main activities of the FALM, in light of these aims, have been sharing of software, technical expertise and experience on policy questions such as privacy issues.
Abs. 24
4. So one of the main goals of FALM is to provide free access to law all over the world. If someone else intends to use e.g. the data of AustLII or WorldLII for an own commercial or free database, can he or she get these data from the institutes for these purposes? Abs. 25
The policy of LIIs stated in the Declaration concerning republication of government information does not mean that a LII must declare its content to be ‘open content’ and to be available for re-use by anyone, but only that it must not hinder others from obtaining the data from its official sources and republishing it. In some countries where doctrines of Crown Copyright still apply, for example, Australia, a LII is not at liberty to permit users to reproduce its data for all purposes and there are strong reasons why any publisher of case law should obtain its data directly from the original sources, the Courts and Tribunals. LawPhil is the only LII to provide all its data via a Creative Commons licence at this point. CanLII has quite liberal Terms of Use for re-use of data on the CanLII site, possible because of Canada’s Reproduction of Federal Law Order. For some LIIs, the question of reuse is further complicated by privacy and strategic issues. Each LII has different views about the need to protect its own databases, often for privacy reasons with case law. Abs. 26
5. Were there any problems for getting cases of different courts in Australia or somewhere else on the past as there could be a national copyright on the cases for example? What do you (usually) do if a court refuses to provide cases to you? Abs. 27
No Australian court has ever refused AustLII permission to publish its decisions. Nor have courts in other countries when asked. Abs. 28
With regard to the copyright issue: Most countries do not claim copyright in any form of primary legal materials (or other government-produced materials), sometimes including translations. They have generally adopted the option in the Berne Convention that allows a country to choose to have no copyright in such materials. For example, the most common copyright position in European states, shared by 32/37 States and territories surveyed, is that there is no copyright in any texts of a legislative, judicial or administrative nature. In at least 21 of those States the position for free access is even better as it is explicitly stated that there is no copyright in any official translations of those exempted materials, so any official English language version may also be republished(4). In the other eleven, official translations may come within the exempt materials, but this is a question of statutory interpretation. Also, only five of the 37 jurisdictions surveyed do assert some form of government copyright in such official materials (the UK, Ireland, Gibraltar, France and Malta), but the first four do allow their legislation and case law to be reproduced in free access LIIs, so the copyright situation is no impediment in fact. The situation is little different in Asia, with assertions of state copyright in only a couple of the 28 jurisdictions surveyed. Abs. 29
6. There are four LIIs in Europe already. All of them work in common law countries where the rule of precedent is one of the major rules of law. How do you think the civil law countries can benefit from a LII? Abs. 30
In any country, it is valuable to have all the sources of law searchable in the one location: legislation; cases; treaties; law reform reports, and free-access scholarship. Although civil law countries do not have the same doctrine of precedent as common law countries, case law at all levels nevertheless makes the meaning of provisions in codes understandable, and there is no doubt that lower courts look to higher courts for their interpretations of code provisions. Abs. 31
It is also important that all countries make their public legal information available in a reciprocal fashion for free access, so that all are contributing their share to the global commons of free access legal information. This makes global comparative law research achievable. International audiences need reciprocal free access to German law, for example. Abs. 32
7. Lets focus on Germany. There are some commercial legal databases that work very well and are accepted in the German community. What do you say to a German judge, lawyer or academic if he or she asks you: What are the benefits of a German LII for me and my practical work and why do we need such a new database with regard to the existing ones? Abs. 33
First, 'free access' means free to all, including the general public, not only practising lawyers. At present the general public in Germany has very limited access. Lawyers also need more choice in the services they have available, and if any free access publisher has the right to republish German case law, provided it is done in a responsible way, then they can offer different types of value-adding than commercial publishers. In time a quite comprehensive free access service could be developed. Abs. 34
Courts could also decide to rely on a LII to discharge their publication obligations if they wished to, thus reducing the burden on them to publish. In countries such as Australia, free access publishers offer more comprehensive current law than commercial publishers. Abs. 35
LIIs also share such resources as the LawCite international citator, which can be used to automate the tracking of citations of cases and journal articles in German and European courts. Abs. 36
According to my information the existing commercial databases in Germany are incomplete. They don't include all judgments, only the in their view important ones. So a German LII could offer completeness. Abs. 37
Furthermore some German high courts and German states already publish their decisions. It would be a big effort having one database that combines all the different decisions, but a valuable one(5). Every legal practitioner and every citizen would have an easy access to the German cases for free. Abs. 38
Finally the German Federal Administrative Court (Bundesverwaltungsgericht) has held, that all courts decisions must be made accessible to the public if there is or may be a public interest in the publication(6). The court derived this from the principles of the rule of law (including the right to have recourse to a court) and of democracy. A German LII is one possible way to transform this duty. Abs. 39
8. Is WorldLII likely to expand to include more content from Germany and Europe? Abs. 40
AustLII is working with the European LIIs in WorldLII, and potential new LIIs, to expand the range of databases from European countries. AustLII has funding to add key European databases to WorldLII, where copyright laws allow this, so as to make European law more easily accessible to Australian legal researchers. But anyone anywhere will be able to access them. We hope that the addition of some of these databases may encourage new European LIIs to take them over. Ideally, a group of European LIIs could decide to jointly develop a European-wide Legal Information Institute - a 'EuroLII' - but that has to be a decision that comes from Europe. AustLII would offer to support such a development in any way that it can. The Free Access to Law Movement's primary aim is to support local initiatives, and secondarily to encourage international networking. Abs. 41
9. Is there any personal benefit for you with the creation of a EurLII or a GermanLII? Abs. 42
There are benefits for Australian researchers but these benefits will be shared with those in Europe and the rest of the world. There would be personal satisfaction for me and my AustLII colleagues if we could encourage and assist to make free access to law more effective in Europe or Germany.
JurPC Web-Dok.
191/2011, Abs. 43

Fußnoten:

(1) Professor of Law, Faculty of Law, University of New South Wales and Co-Director, Australasian Legal Information Institute (AustLII), email graham@austlii.edu.au.
(2) During his compulsory legal traineeship/Referendariat Martin Backes has spent several weeks at the World Legal Information Institute in Sydney, Australia. In this context he has conducted the interview with Prof. Greenleaf. The content reflects the status of March 2011.
(3) LIIs = Legal Information Institutes
(4) Albania; Belarus; Bulgaria; Croatia; Czech Republic; Estonia; Latvia; Lithuania; Liechtenstein; Luxembourg; Norway; Portugal; Romania; Russian Federation; Serbia; Slovak Republic; Slovenia; Spain; Sweden; Switzerland and Ukraine.
(5) Some of the German Laender have already tried to create a one database solution for example the Saarland: http://www.rechtsprechung.saarland.de ===>/rechtsprechung/sl_frameset.py,
http://lrsl.juris.de /cgi-bin/laender_rechtsprechung/sl_frameset.py.
(6) BVerwG 6 C 3.96; JurPC Web-Dok. 10/1998.

* Das Interview führte Martin Backes.
[ online seit: 06.12.2011 ]
Zitiervorschlag: Autor, Titel, JurPC Web-Dok., Abs.

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