Case Law Archive (2) – History

The biggest question for the new case law archive is what attempt is made to cover historical cases. My own experience is that although everyone first thinks of what the most recent cases are, in reality those questions tend to be easily satisfied. The vast majority of cases for which an answer is needed are historical ones. There are historical cases on swarb.co.uk (of course), on Bailii, and on Commonlii.

The difficulty (unless resolved) for the new archive is that before Bailii, all available published resources are subject to copyright. Every case when heard is recorded, and the records are kept, but for most records are not fully transcribed and recovery would (will?) be immensely expensive.

I suspect that the mountain facing the proposed scheme of just keeping up with current case law will be enough. There has to have been some fairly rigorous directions given to courts and tribunals as to what is needed, but most such organisations will already have systems in place for supplying Bailii with what they get. Just which case law are chosen for publication / archiving will be key.

It is not always readily appreciated just how much of a history of case law we have. The earliest case on swarb.co.uk goes back to 1024. Admittedly the very early cases which survive are few in number, but it also must be recognised that many are held in a legal French language as yet unassaulted by Google. Many words in such cases simply have no proper current translation – they are words of their time referring to elements of procedure which have not now existed for three or more hundred years.

Will copyright holders allow publication of their cases in the archive?

I do not know. I suspect not. They are commercially valuable. I imagine that any company holding such rights will at least privately know that the real commercial value does indeed lie in its historical assets. People will subscribe to the All England to get the older cases in digital format. Any new case will be available on Bailii. There may be exciting but unexplored issues as to copyright ownership, but in reality the publishers should have the upper hand on this aspect. Traditionally, judgments were read out or discursive. A court reporter would listen and note down that judgment, and he would thereby acquire a copyright in what he first put into permanent form. There is a splendid argument that copyright exists only through a creative intercession, and that the last thing any lawyer wants to hear is that he is reading material created by the reporter, and not (as exactly as possible) the words of the judge – ipsissima verba. Other issue are as to the status of the judge. An employee’s words would belong to his employer, but the status of judge as employee is not one without real questions and substantial variations.

Existing old cases

Commonlii and Bailii both have old cases from the 19th century and similar. What is clear is that the more rently published cases are held to a better standard. It is easier to to extract text from the pdf files published by commonlii. It is possible that a third attempt, publishing more recently printed case law will in turn be more accessible.

I suspect, and will be happy to be proved wrong, that the new system will for the moment at least, simply charge off with new case law. It may take over the Bailii database, but it would be an utterly disastrous mistake to lose the existing Bailii resource.