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JILT 1997 (2) - Sol Picciotto

Robin Williamson's 'Free Access to Electronic Law':

A Response

Professor Sol Picciotto
Lancaster University
s.picciotto@lancaster.ac.uk

Contents
1. What is Meant by Freedom of Access to Legal Material
 
2. Freedom, Competition and Property
 
  2.1 Who will benefit ?
 
  2.2 How will a free service be funded?
 
  2.3 What effect will free access have on usage?
 
  2.4 Will commercial publishers be able to compete?
 
3. Conclusion

This Comment was published on 30 June 1997.

Citation: Picciotto S, 'Robin Williamson's Free Access to Electronic Law': A Response, Comment, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/leginfo/97_2will/discuss/picciot/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/williamson/discussion/>


1. What is Meant by Freedom of Access to Legal Material

I welcome Robin Williamson's call for a closer examination of what is meant by the call for freedom of access to legal information. As one of those who have argued for greater freedom of access, however, I think it is incorrect to imply that such detailed examination has not been provided. On the contrary, my previous contribution in JILT <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_2/picciotto/> perhaps ventured too deeply into the administrative and legal thickets of the present arrangements for disseminating statute and case-law in the UK. I therefore also welcome Robin Williamson's bolder approach, asking some direct questions and seeking simple answers.

First, I will summarise the main elements of my position.

  • Publications produced as part of the process of government should be treated as in the public domain, or dedicated to the public. Thus, there should be no copyright in the texts themselves, and they should be freely reproducible by anyone, for any purpose. However, the authenticity of the texts should be protected by an explicit statutory provision against misleading reproduction.
  • The public domain principle should cover all primary and secondary legislation, quasi-legislation (such as guidelines or codes), court and tribunal decisions, parliamentary debates and reports, as well as all reports or documents the production of which has been paid for out of general taxation or public charges.
  • As much as possible of this material should be made directly available to the public by publication through the Internet. The cost structure of such publication makes it unnecessary to try to recover the costs of distribution.
  • Commercial publishers should be free to repackage such material, and charge for access to their packages. They would not have an independent copyright to the texts themselves, but only to any additional editorial material. They would also have rights in the compilation as a whole, as a data-base.

In true academic style, I think I should briefly expound the analytical reasons for my position, before going on to answer Mr Williamson's questions.

2. Freedom, Competition and Property

It is a truism that freedom for one person may entail a restriction on another. Also, that economic activity takes place within a framework of social norms and conventions. This is the case even for 'market' economies. Hence, the term 'free market' is a misnomer. Market transactions depend on a framework of rules, establishing the basis for the enforcement of contracts and other obligations. Even more essentially, rules establish and define property rights, which are central to social relations based on buying and selling. It is hardly surprising that the emergence of the Internet and other forms of electronic communication should provoke a re-evaluation of existing forms of property and economic law.

Specifically, it requires reconsideration of the reasons for and limits of property rights in the dissemination of the expressions of human creativity. This obviously has a very broad importance, since it concerns not only the social conditions for economic activity, but of cultural life itself. Intellectual property rights, in their modern form, date from the 19th century. Prior to their modern reformulation, institutions such as patents and copyright were actually privileges granted by absolutist states, as a means of controlling the dissemination of ideas and granting economic advantages to favourites. The philosophers and political economists of the 18th century Enlightenment argued for a free society based on the dignity of each person, and the rights of all to the fruit of their labour. These arguments and debates became the focus of political struggles. The outcome was a recognition of the rights of authors and inventors to protection against exploitation by others of their creations and innovations. This also helped them to get an income from their activity rather than depend on patronage.

However, these universalist rights were in practice hedged with limitations. Thus, the US Constitution empowered Congress to 'promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries' [emphasis supplied]. This recognised that the grant of unlimited exclusive rights to control dissemination could be socially harmful, since it would restrict the circulation of new ideas embodied in cultural or scientific products.

An important reason for such limitations is that the justification sometimes used for other types of property rights, over land or natural endowments, was the need to conserve scarce resources. This may be challenged even for physical objects, but it clearly does not apply to intellectual products. Their consumption does not necessarily diminish supply, but may stimulate it. Farmers who over-cultivate a field may ruin the soil, but a poem, a book, a song, or a new technology are not exhausted by use. On the contrary, from an economic perspective, industry generally benefits from the free availability of innovative technology. The innovator or disseminator must therefore justify any claim to a right to control access, rather than others being required to justify limits to exclusive rights. This justification is usually in terms of the economic incentive needed to stimulate the activity in question. Hence, patents, copyright and similar rights belong as much to competition as property law.

Unfortunately, intellectual property rights and their limits have resulted from the interplay of vested economic interests more than from any dispassionate evaluation of social benefits. This despite the deployment of arguments couched in the language of universal rights rather than either economic self-interest or the careful evaluation of the social and economic context of each economic activity. Perhaps this is at least partly because lawyers became skilled in interpreting the language of universal legal rights into detailed practical applications which too often favoured the interests of the economically powerful, who were their paymasters. So, in practice authors, inventors, or artists seem to have benefited far less from the ownership of rights to the products of their creativity than the large corporations which have come to dominate economic life, in large part precisely because of their ability to harness the creativity of science and the arts to productive ends.

Now we can consider Mr Williamson's questions.

2.1 Who will benefit from free access?

Obviously, all users would benefit, but above all those who would otherwise not be able to afford the often enormous subscriptions charged for compilations of legal material. Thus, the poor law student, or for that matter the small solicitors' firm, would have less disadvantage in relation to the large multinational law firm. Now that local public libraries are increasingly equipped with Internet connections (which should be facilitated through Lottery money), direct access by all citizens to all government documents can easily be made a reality.

2.2 How will a free service be funded?

Electronic publication makes dissemination far easier and cheaper because of its low front-end costs. Documents are now already word-processed, and reformatting to make them accessible across a network takes only a few moments. There is a negligible cost involved in fileserver space, and even maintenance of a documents database is far less costly than typsetting and printing. There is no risk such as that involved in estimating the number of copies to produce of a book. Public pressure for freedom of information and open government has already led to some progress in making statutes and higher court decisions available, although this is still less in the UK than other comparable countries. However, the material is still subject to Crown and Parliamentary copyright, and permissions to reproduce are still controlled by the Copyright Unit of what remains of Her Majesty's Stationery Office. We must hope that the commitment of the new government to freedom of information will lead to a more determined and comprehensive approach. The saving of time and effort, even within the public service itself, by creating an electronic archive of government documents will easily repay the modest costs. These might in any case be recouped by the reduced need for more expensive forms of hard-copy publication in short runs, which is too often the case with government documents. The amounts recovered from the licensing of reproduction rights in government material are paltry, especially taking into account both the visible and invisible costs of administering the permissions system. But above all, it seems contrary to all logic to expect the citizen to pay for access to documents dealing with the process of government, the production of which has been paid for out of taxation.

2.3 What effect will free access have on usage?

There is plenty of evidence that once a particular form of expression of ideas is made easily available, it creates an appetite for more. To some extent, "the medium is the message". However, this also depends on the ideas themselves. A CD-ROM of law reports is unlikely to outsell the Spice Girls. But that is exactly where commercial publishers come in.

2.4 Will commercial publishers be able to compete with free data sources?

They will have every incentive to repackage the material to make it user-friendly, since the basis for the charges they make will be their value-added. If they are not able to compete with the free service provided by government departments, then they will not deserve to make any money. Thus, the requirement which is at present part of the 'Dear Publisher' letter that re-publication of official material should be with some value-added is, in my view, unnecessary. There seems no reason why this material should not be freely downloaded and even made available on other sites, for example at educational institutions. On the other hand, if an organisation wishes to make a charge for a service, market pressure is enough to ensure that it provides sufficient value-added to induce consumers to pay.

In recent years, Treasury pressure on government departments (including HMSO) to earn revenues has led to the temptation to grant exclusive rights to some publishers in relation to government material. This gives these publishers a competitive advantage against other publishers which is not easy to justify. Even more damage is caused to the public interest, since the inevitable result is high charges and more limited circulation of important material. A case in point was the conflict over the Inland Revenue internal guidance manuals. If it is decided to publish such material, then surely it should be made publicly available, rather than selling the rights to a single publisher?

I suspect that there is in practice little that divides my position from that of Mr Williamson. Indeed, in his previous article, he welcomed the moves made in February 1996 by the previous government as a step in the right direction. His main concern was to point out that "It is not the business of the public sector to develop, at the taxpayers expense, sophisticated tools aimed at professional users." I have no disagreement with that. However, I do believe that if the public sector does a good job of releasing texts, as it should, then the commercial providers will be under greater pressure to improve the sophistication of their offerings. They will no longer be able to charge large sums of money for a mere assembly of texts, as they have done in the now-fading era of hard-copy publication.

On the other hand, I think there is still a job to be done in persuading the new government to revise the arrangements established last year, to broaden the policy of open access. There is also a need to put it on a clear statutory footing rather than leaving in place the maze of administrative arrangements I discussed in my previous article in JILT. Since last year, considerable progress has been made in improving electronic publication of UK official material, although there is still some way to go. However, both commercial publishers and the educational sector have a common interest in urging the government to clarify and extend the republication rights.

3. Conclusion

Those with any appreciation of electronic media should by now have grasped their implications for changes in the relationship between initial publication and subsequent dissemination. Authors are now far less dependent on publishers to achieve rapid publication to a potentially vast audience. However, the very size of the audience and the cornucopia of material potentially accessible gives commercial organisations an opportunity. Their skill lies in sifting and editing, recompiling and repackaging. For this they do not need the incentive of an exclusive right to the original material. Far from it, if they were granted such rights their incentive would be reduced.

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