Open access and entrepreneurial reuse of UK legislation and case law in legal education technology, by Louise Wayham

Glassmeyer and Smith define open law as a system in which primary legal materials are made available, free of charge, “for consultation, use, and re-use”. In the UK, legislation.gov.uk (the “statute book as open data”) makes legislation available and accessible, free of charge, for consultation and reuse, and is considered to be a success story and an open law benchmark for other EU and non-EU jurisdictions alike. Case law, however, is a different ball game, and for education technology (“edtech”) creators and other entrepreneurial reusers of UK legal information that may be on the periphery of traditional academia, this is where access and reuse of legal information becomes decidedly less open and rather more complicated. It can be difficult to conclusively evaluate copyright ownership in legal source material to determine which materials can be openly reused in the independent creation of edtech apps, websites and courseware, and the terms and limitations governing entrepreneurial reuse of legal information for the development of education technology are not clear-cut.

This post provides a brief overview of open access to UK legislation through legislation.gov.uk. It argues that similarly consolidating and opening up access to case law would level the playing field between the major league publishers, non-profit organisations, academia and entrepreneurs to stimulate growth in the UK’s education technology sector in general, and would support much-needed innovation in legal education technology in particular.

Open access and reuse of statute through legislation.gov.uk

Legislation for England and Wales is openly accessible on legislation.gov.uk, a comprehensive database of UK legislation launched in 2010 as the “official place of publication for newly enacted legislation” with an estimated 50 million words in the statute book and 100,000 words added or amended each month as maintained by the National Archives. Legislation.gov.uk’s objectives are rooted in “radically improving the way users access and interact with legislation” and “championing the transparency and open data agenda”.

Legislation.gov.uk stipulates that legislation on its website is protected by Crown Copyright, defined in the Copyright, Designs and Patents Act 1988 as “works made by officers or servants of the Crown in the course of their duties”( s163(1) Copyright, Designs and Patents Act 1988). Material protected by Crown Copyright includes information created by government departments and agencies, ministers and civil servants (such as legislation, codes of practice, government reports, official press releases and public records).

Legislation.gov.uk has transformed open access to legislation to non-legal users and is an invaluable resource for reference and reuse for legal practitioners, researchers, educators and entrepreneurs alike. For more advanced reusers, the National Archives has made it easier for developers and researchers to “interrogate” legislation data to find new and interesting uses for it through the use of its RESTful API for content negotiation, to explore and analyse the entire statute book for patterns and trends. Using legislation as data, developers can then develop functionality on top of this content and feed it into websites and applications. In this way, legislation.gov.uk was “the first use of full content negotiation on a large scale government website to open up access to all the underlying data”. (Neil Williams, 2010)

EU and UK public sector information legislation

Data that comes under the scope of Crown Copyright, such as that published on the legislation.gov.uk website, can be reused commercially with few limitations because reuse of government and public sector information in the UK is subject to the terms, provisions and limitations of the UK Open Government Licensing Framework (“UKGLF”). UKGLF oversees arrangements for licensing the use and reuse of public sector information, and aims to open access up to public sector information and datasets towards “promoting transparency and enabling wider economic and social gain”. The framework is designed to encourage government departments and the wider public sector to adopt the Open Government Licence (“OGL”) as the default licence for open access and reuse of public sector information, in line with the July 2015 Reuse of Public Sector Information Regulations (updating the 2005 Regulations) that brought into force in the UK the EU’s updated Directive on the reuse of public sector information. The 2013 PSI Directive requires Member States to make public sector information open and available for reuse with the aim of facilitating commercial exploitation of open legal data which in turn creates new jobs in the EU-wide information economy, a key objective of the EU’s Digital Single Market strategy. It recognises that public sector information of the Member States constitutes a “vast, diverse and valuable pool of resources that can benefit the knowledge economy”. (Preamble note 1, Directive 2013/37/EU on the reuse of public sector information)

The OGL grants individuals and organisations the right to reuse information and other material that may be protected by Crown copyright or database rights, and clarifies the terms that reusers must adhere to and the restrictions or limitations of reuse in the material. The OGL (currently at v3.0) empowers creators to reuse public sector information in the following ways: to copy, adapt, publish, combine, distribute and transmit the information, exploit it commercially and non-commercially, or include it in the user’s own product or application. Since 2010, Crown Copyright information including primary and secondary legislation, explanatory notes, government press notices, unpublished public records, texts of ministerial speeches and articles and typographical arrangements, have been openly accessible and reusable under the Open Government Licence.

Case law remains a challenge

In the UK, although legislation is openly accessible and reusable through the legislation.gov.uk platform, case law is problematic. Over the last century and a half, copyright in landmark and highly influential decisions of the courts of England and Wales has been claimed by various stakeholders representing rather different interests, from judges and court reporters to the commercial publishers who generate huge profits from annotating, enhancing and adding premium, feature-rich value to raw transcripts. More recent judgments are published and disseminated through numerous, separate court websites and in commercial databases accessible only to those individuals or organisations paying hefty subscription fees. BAILII remains the most open (but not exhaustive) resource for court judgments. Overall, case law cannot be said to be ‘open’ in the same way that statute is open, consolidated and reusable from the legislation.gov.uk platform.

Given the significance of case law in the UK’s common law legal system, the inaccessibility of judgments for entrepreneurial reuse seriously inhibits the development of a competitive legal education technology sector in the UK. Without case law as a dataset, a legal education innovator will struggle to produce an exhaustive, quality legal edtech platform or product. Making historic and contemporary court judgments open and accessible for entrepreneurial reuse would create a level playing field between legal education technology entrepreneurs and the major legal publishers, and stimulate exciting development in a highly specialised and largely unexplored corner of the edtech market.

Consolidating case law of England and Wales as a dataset on a dedicated digital platform is not a simple project, specifically because of the copyright minefields that would need to be navigated, but such a platform would almost certainly pave the way for entrepreneurs and innovators both within and outside traditional academia to reuse legal information in inventive, interesting ways, reimagining legal education in the process.

Sources:

Louise Wayham is a postgraduate researcher at the University of Exeter, researching open access and potential reuses of legal information towards innovating and reimagining legal education. This blog post is based on her 2016 report on ‘Access and reuse of primary UK and EU legal materials in the development of legal education technology’, which she wrote after attending the EU Publications Office’s ‘Access and reuse of EU legal information’ conference at the European Commission in March 2016.

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