After I had posted my piece on “BAILII: How and why it all started” I received a tweet from Daniel Hoadley, which said:
“In terms of back filling BAILII’s archive of older cases, what would be the best way forward?”
Constrained by the limitations of 140 characters per tweet I replied:
“Constructive discussions with ICLR to let BAILII load the text (sans headnotes)) of judgments earlier than the late 1990s”
Daniel is the Research and Development Manager at ICLR (the Incorporated Council of Law Reporting for England and Wales). He contributed a thoughtful article “the Curious Case of the Judgment Enhancers” at pp 17-25 of the splendid 1865-2015 ICLR Anniversary Edition which was published at the start of this month. In it he wrote:
“Rather than viewing BAILII as a threat, the better view is that ICLR (together with similar outfits) and BAILII are two sides of the same coin and are complementary of one and other. BAILII’s forte is speed and comprehensiveness. Fast, free access to raw transcripts of judicial decision-making. ICLR’s forte on the other hand is selectivity and expression. The fact that each site provide[s] links to related content on the other only serve[s] to underline that point..”
How, then, to make BAILII’s coverage before the late 1990s more comprehensive? This blog exceeds 140 characters and provides a fuller answer to his question.
In it I am writing in a personal capacity. I retired from the Board of BAILII when I ceased to be its chairman four years ago, and in a sense this makes me less inhibited in providing an answer to Daniel’s question. And I am not an expert in copyright law: I do my best to understand what the experts tell me. In this context I have recently reread the essay “The law of databases and databases of the law” by Professor Colin Tapper, which is the fourth essay in “Essays in Honour of Sir Brian Neill, the Quintessential Judge” (Lexis Nexis 2003).
I had Colin’s thoughts on the topic “Who owns the copyright in the words of judgments?” well in mind when I suggested in answer to Nick Holmes (see my blog “BAILII: Five questions answered”) that it did not matter very much whether the copyright vested in the judge or in the Crown, because both the Crown and the judiciary were at one in their desire to make the texts of judgments widely and freely available.
In his essay Colin suggested that the idea that copyright in the words of a judgment is vested in the Crown can be traced to the new language used in section 163 of the Copyright Designs and Patents Act 1988. This provides that Crown Copyright inheres in a work made by “Her Majesty or by an officer or servant of the Crown in the course of his duties”. A footnote shows that the answer to the conundrum whether a judge pronounces a judgment as an “officer or servant of the Crown in the course of his duties” is still hotly debated among pundits of copyright law. A judge would say that he or she is independent, and not an officer or servant of anyone, not even the Crown.
In all this, I am distinguishing between the words contained in a judgment and the presentation of a judgment in a Law Reports series, complete with headnotes and so on. The Canadian Supreme Court made the distinction in these terms in CCH Canadian Ltd v Law Society of Upper Canada , the case I had in mind in one of my answers to Nick Holmes. The headnote reads:
“While the reported judicial decisions, when properly understood as a compilation of the headnote and the accompanying edited judicial reasons, are “original” works covered by copyright, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright. “
An extract from the relevant part of the unanimous judgment of the court is set out in a footnote below.
It follows that although ICLR (and “similar outfits”) are entitled to copyright protection of their published products for the reasons explained in the Supreme Court of Canada’s judgment, they own no copyright in the judicial reasons themselves. This belongs to the judge, or to the Crown, or – and this seems very much less likely – to nobody at all, as in the United States, where judgments are regarded as being in the public domain. As I have said, in this country the judges and the Crown both support the approach of the US Supreme Court when it said nearly 130 years ago that:
“The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which binding every citizen, is for publication to all.” 
And this is BAILII’s governing philosophy, too.
BAILII could therefore hire a typist to reproduce the words of all the missing judgments it would like to load onto its site without infringing the copyright of anyone who could rightfully complain. The reason why I answered Daniel as I did was that it would be far more straightforward for BAILII to come to terms with ICLR (and similar outfits) whereby it could achieve the same result on suitable terms without giving profitable, if rather numbingly boring business, to an out-of-work typist.
Ten years ago, with the aid of a generous grant from an educational foundation, BAILII greatly enhanced its value through its Open Law project. Professor Philip Leith, who is one of BAILII’s trustees, has described one of the two aims of this project in these terms:
“BAILII had been able to gather up cases as they became available after 2000, but also was given access to materials from the Court of Appeal from the official transcribers. Some judges provided materials directly to BAILII as they were produced, but generally there were a very limited number of pre-2000 judgments from the High Court and other courts. This meant that BAILII was of more use to postgraduate students carrying out research on current legal developments, and of limited use to undergraduate students who wanted access to the case law which was discussed in their legal texts.
The Open Law project attempted to overcome that lack of utility to undergraduate students by building a list of ‘important cases’ and then trying to get as many of these from as diverse sources as required. The lists were compiled by making contact with the academic community (e.g. academics, librarians, and special interest groups such as the Society of Legal Scholars) and ordering the importance of judgments so that we tried to get those which were the most useful. The problem of ‘ownership’ of judgments arose but, in general, we were able to carry out the task which we set ourselves. The Open Law project identified leading cases from the past for 16 selected subjects. BAILII then sought permission (and sometimes the cases themselves) from various libraries and publishers to digitize the judgments and enabled access to over 2,380 leading cases searchable by subject. BAILII does have some small resources to add more cases of note to the leading cases lists, but those materials that have been identified as desirable additions often remain problematic in terms of copyright ownership.
The project assumed that judgments prior to around 1890 were in the public domain and viewed these as suitable for processing and digitising first. BAILII then sought various sources of copyright-free materials for the remainder. We successfully scanned and converted materials in the Supreme Court Library, judgments directly from one cooperative transcriber, from the House of Lords and Privy Council. BAILII negotiated permission from the ICLR and SCLR and from the Estates Gazette law reports for permission to publish these limited numbers of pre-2000 ‘leading cases’. The Bar Library in Belfast provided copies of Northern Ireland cases.”
Now that the Supreme Court of Canada has confirmed our own views so clearly on the copyright issues which concerned us then, I believe the way forward could be to seek similar funding from a suitable foundation for a comparable project, preferably in collaboration with ICLR (and “similar outfits”), but if collaboration is not available, by giving employment to the typing profession.
 “33 The reported judicial decisions, when properly understood as a compilation of the headnote and the accompanying edited judicial reasons, are “original” works covered by copyright. Copyright protects originality of form or expression. A compilation takes existing material and casts it in a different form. The arranger does not have copyright in the individual components. However, the arranger may have copyright in the form represented by the compilation. “It is not the several components that are the subject of the copyright, but the over-all arrangement of them which the plaintiff through his industry has produced”: Slumber-Magic Adjustable Bed Co. v. Sleep-King Adjustable Bed Co. (1984), 1984 CanLII 54 (BC SC), 3 C.P.R. (3d) 81 (B.C.S.C.), at p. 84; see also Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.,  1 All E.R. 465 (H.L.), at p. 469.
34 The reported judicial decisions here at issue meet the test for originality. The authors have arranged the case summary, catchlines, case title, case information (the headnotes) and the judicial reasons in a specific manner. The arrangement of these different components requires the exercise of skill and judgment. The compilation, viewed globally, attracts copyright protection.
35 This said, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright. The changes made to judicial reasons are relatively trivial; the publishers add only basic factual information about the date of the judgment, the court and the panel hearing the case, counsel for each party, lists of cases, statutes and parallel citations. The publishers also correct minor grammatical errors and spelling mistakes. Any skill and judgment that might be involved in making these minor changes and additions to the judicial reasons are too trivial to warrant copyright protection. The changes and additions are more properly characterized as a mere mechanical exercise. As such, the reported reasons, when disentangled from the rest of the compilation — namely the headnote — are not covered by copyright. It would not be copyright infringement for someone to reproduce only the judicial reasons.”
 Leith, P., Fellows, C., ‘BAILII, Legal Education and Open Access to Law’, European Journal of Law and Technology, Vol. 4, No. 1, 2013