Open Access to Legal Information: An Introduction
University of Warwick
Date of publication: 7 May 1996
Freedom of Information is a crucial issue for contemporary democracies, an 'informed' citizenry being a bastion of democracy. The focus of attention in debates is usually on the right of citizens to information held by public authorities. An equally significant issue is the cost and effectiveness of this access. If information, particularly about laws and law-making processes such as parliamentary and judicial proceedings, is too expensive or the procedures for obtaining it too cumbersome, the cost is a citizenry uneducated in the wherewithals of democracy. Extreme examples of this are third world countries where laws passed by parliament and judicial decisions go unpublished for years because of lack of funds.
In the United States and many other western democracies, a boost is given to cheap and effective communication of public information about the law through provisions which ensure that such information is in the public domain and therefore may be readily reproduced. In the United Kingdom the position is more uncertain because the Crown claims intellectual property rights in the relevant material. In practice, permission has been readily been given in the UK to commercial publishers and others to reproduce certain key materials such as statutes and statutory instruments, but there is a difference of emphasis compared with other states.
Such difference in emphasis takes on great significance in the age of information technology. Information technology based publishing provides an opportunity for the wide and easy dissemination of key legal information through a variety of on- and offline sources. The development of the World Wide Web on the internet, with all its limitations, enables low cost dissemination to the growing number of net users. However, a different perspective sees IT as an opportunity for enhancing the return to the public purse. In the United Kingdom, the matter is further complicated by the planned privatisation of Her Majesty's Stationery Office (HMSO). The extent to which intellectual property rights previously owned by the Crown are transferred to HMSO can be seen either as increasing the attractiveness of the organisation to prospective shareholders or a threat to existing commercial publishers and consumers of information. Thus the nature, extent and practice in relation to intellectual property rights in public legal information can have significant impact on the question of public access to legal information. This is the concern underlying the articles, comments and other material of this special feature in Issue 2 of JILT.
In deciding to make this topic the special feature, the editors were aware that it was both contentious and of contemporary interest. The contentious nature can be seen in the vigorous standpoint of the contributions from academic sources (Professors Picciotto and Oppenheim) and from those who are intimately concerned with Crown copyright issues either as licensors (Robbie) and licensees (Williamson). A number of contributors even suggested that it was perhaps too early to write about it as the policy issues were still being clarified. We indicated that it was in the tradition of our 'living journal' that authors wrote about law in the making. The quick turnaround ensured that authors could take new developments into account. Our policy of encouraging authors to produce supplements to or new editions of articles will mean that they can keep us uptodate with the developments.
Two such developments have taken place even as the authors were submitting their initial contributions. The first was the Policy Statement of 9th February 1996 by Roger Freeman, the Cabinet Office's Minister for Public Service on the implications of privatisation of Her Majesty's Stationery Office for Crown copyright and in relation to licensing the publication of Crown Copyright material in non-print media. It is to the credit of our contributors that they have updated material to take this into account. The second, which has come too late for the contributors to this issue, has been the First Report of the Information Committee of the House of Commons on Electronic Publication of House of Commons Documents of 27 March 1996.
It is clear from the Minister's statement and that there is a degree of relaxation in attitude to electronic reproduction of documents. However, the point of departure between the contributors is the sufficiency of this relaxation. Thus Sol Picciotto, whose article involves a careful analysis of the development of Crown copyright law and the issues raised in the era of electronic publishing, points out a central contradiction in the Minister's statement under which official information is to be 'as widely and readily available as possible, taking into account the need to protect the interests of the taxpayers' Picciotto suggests that most taxpayers would be appalled that information compiled for the purposes of government should be sold back at profit especially as electronic publishing now makes it feasible to provide such information at minimal marginal cost. He suggests that far from being a benefit to taxpayers, charging for official information simply and inefficiently shifts the burden of taxation onto the consumer of the information and is surprised that a government committed to market forces is reluctant to allow these forces free play in reducing the costs of dissemination of official information.
Charles Oppenheim also points to a fundamental contradiction between the intended privatisation of HMSO and the 'illogical' relaxation of copyright in relation to legislation and some other materials. He makes the radical suggestion of 'killing Crown copyright'. The best way forward would be for privatisation plans to be stopped and for HMSO to have a clear remit to act as a service to citizens rather than to earn income, the adoption of US style legislation providing that information in the "public domain" should be free of all copyright, and for the free availability on the internet of a wide range of official documents.
Robin Williamson, commenting from the perspective of an electronic publisher, suggests that it is in the public interest for a lively competitive market to develop based on giving added value to electronic information delivered in electronic format. He is concerned that under the Government's privatisation plans, the current Crown material created at public expense might be used to benefit the privatised shareholders. He suggests that the ownership of the existing electronic archive should be retained in the public sector and made available on reasonable terms to commercial publishers, including a privatised HMSO. He also welcomes the principle of making official information available freely on the internet, but suggests that this should be confined to a simple republication; added value publication being left to commercial publishers who should be able 'to make a living'. While there is an interesting coalescence of views between the academic contributors and commercial publishers, one suspects that Picciotto and Oppenheim would give primary emphasis to the need for cheap and effective dissemination of information to the public.
A vigorous defence is mounted of the current position by Gordon Robbie, the Head of Copyright at HMSO, who also describes the historical development of Crown copyright and current Crown practice, and suggests that saving the taxpayer some £20 million per year must be a worthwhile objective and at any rate a matter for Government to decide. Both Picciotto and Oppenheim consider the amounts to be 'relatively modest' in the context of overall state information budgets. In addition, Robbie suggests that the critics have not always acknowledged the relaxed attitude to licensing historically taken by the HMSO. He suggests that in the future there may be increased emphasis on making official information available as freely as possible to individuals for their personal purposes, while continuing to ensure that the Crown gets a fair cut of the action where Crown material is used for commercial gain.
While the government's attitude to Crown copyright still needs to be clarified, the House of Commons Information Committee has taken a bold step in its First Report on Electronic Publication of House of Commons Documents. It has welcomed the proposal of the Electronic Publishing Group of the House of Commons (EPG) to make House documents available free on the internet and suggests that licences for republication should be given freely to all publishers including commercial publishers. However, the Information Committee does not express a view on whether such licenses should in principle be at no cost, leaving the matter to the Finances and Services Committee. We intend to publish this Report in JILT as soon as permission is obtained from the Committee. In the meantime, a brief account is included on the key provisions of the Report.
We also include in this issue a review of Saxby's recent work on Public Policy and Legal Regulation of the Information Market in the Digital Network Environment which deals with the issue of access to public information.
While this issue focuses on the debate in the United Kingdom, the matter of access to information is of world-wide importance, and in future issues of JILT it is intended to include discussion in relation to other jurisdictions. The Montreal Conference on Crown Copyright in Cyberspace in 1995 provided this international context, and a link to proceedings from the Conference is provided as part of the supplementary materials to this issue of JILT.