EQUAL and EQUITABLE PUBLIC ACCESS to the RULE of LAW
PRINCIPLES OF ACCESS TO GOVERNMENT INFORMATION
Since its establishment in 1906, the American Association of Law Libraries (AALL) has affirmed that the strength of our democracy is based on the ability of all citizens to have equal and equitable access to the information created by their government. AALL strongly supports the Federal Depository Library Program through which citizens have no-fee access to current and historic government information in nearly every congressional district. We believe that all levels of government should use the opportunities of the electronic environment to strengthen public access to their materials, and to ensure that these remain permanently available for future generations. What Thomas Jefferson so eloquently stated in 1816 remains true today, "If we are to guard against ignorance and remain free, it is the responsibility of every American to be informed."
BRIEF HISTORY OF GOVERNMENT AND LEGAL PUBLISHING
Congress wisely established a national system of depository libraries in the early 19th century to provide citizens with equal, convenient, no-fee access to federal government information. This system, the Federal Depository Library Program, has developed today to become the government's most effective and efficient partnership program. Our nation's 1351 depository libraries receive government information in a variety of print and electronic formats from a centralized program established at the Government Printing Office (GPO). Under U.S.C. Title 44, Section 1902,
Government publications, except those determined by their issuing components to be required for official use only or for strictly administrative or operational purposed which have no public interest or educational value and publications classified for reasons of national security, shall be made available to depository libraries through the facilities of the Superintendent of Documents...
The historic, centralized link between the production and dissemination of government publications has served citizens and government well, and depository libraries maintain valuable collections of documents from Congress and federal agencies in a variety of print and electronic formats.
However, the history of the publication of the opinions of the federal courts is vastly different, in part because of their geographic distance from Washington. With the exception of the opinions of the Supreme Court which have been produced and disseminated in print by GPO, the lower federal courts have not complied with Title 44 provisions to provide copies of their opinions to depository libraries. Since 1876, West Publishing Company has developed comprehensive national coverage of court opinions through its National Reporter System and has become the de facto official publisher for many court jurisdictions. Today, West--now owned by the large Canadian publisher, Thomson Corp.--and Lexis-Nexis together hold a virtual monopoly on current and archived federal and state court opinions.
ELECTRONIC ACCESS TO COURT OPINIONS
Today, the only means of performing comprehensive legal research electronically is through one of the two costly subscription services, Westlaw owned by Thomson Corporation or Lexis-Nexis, now owned by another large foreign publishing entity, Reed Elsevier. Several years ago, Matthew Bender--which has since been bought by Reed Elsevier--and HyperLaw, Inc. attempted to manufacture and sell CD-ROM products containing court opinions, some of which were scanned in from West products. In two rulings by the U.S. Court of Appeals for the Second Circuit in November 1998, Matthew Bender and HyperLaw successfully challenged West's claims of copyright on their system of page numbering and on the factual content of their collections of opinions. On June 1, 1999, the Supreme Court rejected West's appeal by denying certiorari without comment in both cases.
The Second Circuit relied on the Supreme Court's 1991 ruling in Feist Publications, Inc. v. Rural Telephone Service Co. that rejected copyright protection for so-called "sweat of the brow" labor. The Supreme Court's rejection of West's appeals is a victory for Matthew Bender and HyperLaw. Joel Klein, head of the Justice Department's antitrust division, noted that the circuit court's decision will lead to more competition in the legal publishing industry and lower prices for consumers. But there's more...
THE FINAL PLOY--DATABASE PROTECTION
On a related issue in Congress, West and Lexis-Nexis are so determined to protect their collections of court opinions and their other compilations of primary legal materials that they have lobbied very hard to enact new database protection legislation outside of copyright law. Since 1996, House members of the Judiciary Committee have proposed similar measures to protect databases from piracy, and legislation is already under consideration by the 106th Congress to grant new protections to database publishers. Publishers argue that they need "sweat of the brow" incentives in order to expend the high costs of compiling large databases, and Thomson and Reed Elsevier are among the publishers who are fighting hardest for these new protections. Because of the ruling in the Second Circuit, West and Lexis-Nexis need more than ever to protect the portions of their databases that include factual information--such as the actual court opinions or regulations--from so-called pirates, such as HyperLaw, Inc.
AALL opposes H.R. 354, the Collections of Information Antipiracy Act of 1999. We prefer the more balanced approach taken in H.R. 1858, the Consumer and Investor Access to Information Act of 1999. However, even with language excluding government databases, if enacted, the new protections will likely apply to compilations of government information created and sold by commercial entities, thereby rendering moot the decisions rendered by the Second Circuit.
The American Association of Law Libraries led the library community in filing an amicus brief with the Second Circuit regarding the copyrightability of court opinions, and we oppose current legislative efforts to place court opinions under the umbrella of database protection. If database protection is enacted without the proper exclusion for primary legal materials, Congress will have--perhaps inadvertently--undermined the most basic principles of equitable and equal public access to our Nation's body of legal information.
AALL believes that the courts, legislatures and government agencies at all levels should develop the Internet into a powerful legal research tool that will guarantee equal public access to the rule of law for all citizens. We have proposed the following amendment to the current database legislative proposals that would exclude primary legal information while preserving public access and encouraging the courts to move rapidly towards publishing comprehensive collections of information on their web sites. It reads, as an amendment to the exclusions for government information, that
Protection under this chapter shall not extend to primary legal materials, including court opinions, statutes, codes, regulations, or administrative agency decisions, from any Federal, state, or local jurisdiction, unless such materials were permanently available on an interactive computer network, without restriction, in an official, no-fee, publicly accessible electronic form at the time that the extraction occurred.
PLEASE JOIN AALL IN PROMOTING THIS AMENDMENT BY CONTACTING YOUR CONGRESSIONAL REPRESENTATIVES TODAY. URGE THEM TO NOT SUPPORT ANY DATABASE LEGISLATION THAT LACKS THIS EXCLUSION FOR BASIC PRIMARY LEGAL INFORMATION TO WHICH OUR CITIZENS HAVE A BASIC CONSTITUTIONAL RIGHT.
Robert L. Oakley
Washington Affairs Representative
Mary Alice Baish
Associate Washington Affairs Representative