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Importance of access to legal information | Nathan Baker

Wednesday, February 17, 2021 @ 1:43 PM | By Nathan Baker


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Nathan Baker %>
Nathan Baker
Death and taxes are certainties. A close third to those is the rising price of access to legal resources. The ability of lawyers to do their job is reliant on access to ongoing education as case law develops. Interpreting developments though scholarship and secondary resources allows clarity in the law which aids in the resolution of disputes. As costs to access the tools of the trade increase, the cost to the client increases. As costs increase, this becomes an access to justice issue.

Ongoing litigation in the U.S. between Thompson Reuters and ROSS Intelligence is bringing this issue forward. Thompson Reuters has alleged that ROSS Intelligence hired a third party to, effectively, download case law and other materials to build up its own legal research platform. 

Thompson Reuters asserts a copyright interest in the material which it has expended resources to build while ROSS Intelligence asserts that the material it obtained is covered under fair use as it is the texts of judicial decisions that have been obtained.

The question of whether court decisions must be obtained from the source is the key issue. In April, the U.S. Supreme Court decided Georgia v. Public.Resource.Org, Inc. 140 S. Ct. 1498 which found that government authored annotations to laws were not copyrightable. Since court decisions would be similarly open to the public, the question of the manner in which they were obtained will be at issue.

ROSS Intelligence has responded by suggesting monopolistic actions by Thompson Reuters. Lawyers in Canada will recognize that here too; there are a limited number of companies catering to the Canadian legal market, such as LexisNexis Canada, publisher of The Lawyer’s Daily, which is admittedly small. The competing interests of ensuring access to legal information by both legal professionals and the public must be balanced against that of companies that expend significant resources to gather and organize legal works.

In December, Dye and Durham Ltd. acquired DoProcess, the company which produces Conveyencer, the legal software which 90 per cent of real estate lawyers in Ontario use. Upon doing so, they also increased the price charged per deal from $25 to $129. These cost increases will undoubtedly be passed on to consumers. In Ontario, where real estate agents regularly get paid three to six per cent of the cost of a transaction and real estate lawyers are paid only a fraction of this, lawyers will again be in the unfortunate position of telling their clients of further fees they did not contemplate and which lawyers may be blamed for. The small legal market limits demand but when the cost of software shifts this much, it will hopefully lead to competition.

In the late 1800s, the legislature recognized the importance of access to legal information at the local level across the province. Over time, each county set up a local law association and library to serve its members and, through them, the public. Access to justice is hugely helped by local law libraries and their staff. Librarians perform thousands of research tasks every day and contribute directly to Ontarians’ access to justice.

Lawyers can rely on this professional assistance to make their jobs easier and pass the time savings on to clients. Over time, the Law Society of Ontario (LSO) recognized the importance of these libraries and began charging a library levy to help fund local libraries to ensure that all lawyers would have access to the legal resources needed to represent their clients. Libraries are a godsend to competency.

However, this year, the benchers of the LSO have decided to institute a plethora of cuts to funding furnished through it. As a result, the budgets of law libraries were cut by 10 per cent. This comes at a time when more lawyers need access to communal resources as access to legal information becomes more expensive. Legal information must remain accessible, both in cost and availability, for our justice system to function properly.

Libraries are in the best position to fill this very important role. Each and every lawyer in Ontario should be letting their benchers know that this cut needs to be reversed in the next budget.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at nathanbakerlaw@gmail.com.
 
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