NOTE The Executive Summary of this Report was presented

NOTE: The Executive Summary of this Report was presented and adopted by the Federation's Delegates at the 2000 MidWinter Meeting of the Federation held in Whitehorse, Yukon, on February 25th. Toward a Business Plan for A Canadian Virtual Law Library Prepared by Dr. David Brusegard on behalf of the National Virtual Law Library Group, a group of the National Technology Committee, a committee of the Federation of Law Societies of Canada March 2000 For a copy of the Executive Summary or this Report, communicate with the: Federation of Law Societies of Canada 445, boul. Saint-Laurent, Suite 480 Montreal, QC H2Y 2Y7 Tel: (514) 875-6350 Fax: (514) 875-6115 pafoley@flsc.ca Table of Contents Introduction........................................................................................................4 The Federation’s Objectives............................................................................................... 4 The Objective(s) of the Virtual Law Library...................................................................... 5 What is the Vision .............................................................................................................. 5 The Library Contents.......................................................................................................... 6 Base Requirements for the Virtual Law Library ................................................................ 7 Core Data 7 Authoritative Citations 7 Download Capability 8 The Bilingual Nature of Citations and Downloads 8 Free and Public Access 8 Taking Advantage of Existing Opportunities 9 The Tangible Side of the Virtual Law Library ................................................................... 9 The Success Conditions.................................................................................................... 10 Completeness 10 Viability 11 Trust 11 Accessibility 12 Focus 12 Why A Virtual Law Library ............................................................................................. 13 Who Will Use the Virtual Law Library............................................................................ 15 The Virtual Library and the Legal Publishing Industry in Canada................................... 16 Can there be Partnerships with Commercial Legal Publishers in Building the VLL ....... 17 The Issue of Current Free Access to Commercial Services.............................................. 19 The Historical Data Issue ................................................................................................. 20 The Law Libraries and the Law Societies ........................................................................ 21 The Law Schools .............................................................................................................. 23 Options for the Virtual Law Library ................................................................23 Option 1 The Private Sector Option .......................................................................... 24 The Role of the VLL Organisation 24 The Role of the Private Sector Publisher Partner 25 Funding and Revenue 25 Organisational Requirements 26 The Handling of Primary Materials 26 Governance 26 The Purchase a Publisher Option................................................................. 27 Roles of Each Party a Publisher is Successfully Purchased 27 Funding and Revenue 27 Organisational Requirements 27 Governance 27 The Become a Publisher Option ............................................................... 28 Funding and Revenue 28 Option 2 Option 3 Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 2 Organisational Requirements The Handling of Primary Materials Governance Option 4 28 28 28 The Not-For-Profit Option.......................................................................... 28 Role of the VLL Not-For-Profit 29 Funding and Revenue 29 Organisational Requirements 29 The Handling of Primary Materials 29 Governance 30 The Institute Option.................................................................................. 30 Funding and Revenue 30 Organisational Requirements 31 The Handling of Primary Materials 31 Governance 31 Option 5 Review of the Options ...................................................................................................... 32 Revenue Considerations.................................................................................34 Generating Supporting Revenue....................................................................................... 34 Startup Dollar Requirements ............................................................................................ 34 Ongoing Revenue Requirements ...................................................................................... 35 Ongoing Roles of the Law Societies and the FLSC ......................................................... 35 Concluding Remarks .......................................................................................36 Recommendations and Next Steps ................................................................38 Update from the 2000 Mid-Winter Meeting..................................................................... 39 Next Steps: Create the Planning Team ............................................................................. 39 Structure of the Planning Team ......................................................................42 Canadian law (primary materials) currently available on the Internet.............................. 44 Members of the National Virtual Law Library Group (as at February 2000)................... 47 Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 3 ... one can remain alive long past the usual date of disintegration if one is unafraid of change, insatiable in intellectual curiosity, interested in big things, and happy in small ways. A Backward Glance (1934), Edith Wharton Introduction This document discusses the concept of a Virtual Law Library and how it might come to be. It was written by a consultant engaged by the Federation of Law Societies of Canada in November 1999 to review the current literature, examine examples of digital law libraries in other countries, interview potential stakeholders, and develop a beginning business plan for a Canadian Virtual Law Library. This preliminary draft provides the basis for the future development of a more detailed plan which will expand the discussion to include additional implementation steps and detailed costing. This work is not intended to be comprehensive, prescriptive, or scholarly. In August 1998, the Federation established its National Technology Committee, which submitted the following recommendation to the Federation's Delegates in August 1999: THAT the FLSC take a leading role in investigating the possibilities for creating a virtual library for all Canadian lawyers and Quebec notaries. This project would identify the various players who would take part in such a project and would outline the contents of the library. As a result of this recommendation, the National Technology Committee established a National Virtual Law Library Group comprised of various interested players from the Law Societies, the Department of Justice, the law libraries and others. In November 1999, the Federation's Board considered a recommendation of the National Virtual Law Library Group to retain the services of a consultant to draft a Business Plan and resolved to do just that. Hence the present preliminary Business Plan for consideration to the Federation's Delegates at its 2000 Mid-Winter Meeting. Members of the National Virtual Law Library Group have considered this report and its recommendations and have submitted such to members of the National Technology Committee, whose chair, Abraham Feinstein, Q.C., will report to the delegates in February 2000. The National Technology Committee hopes that this document will attract criticism and discussion in order to hone a realistic plan that can be adopted and supported by the Law Societies and which will appeal to other legal or judicial stakeholders. The Federation’s Objectives The objective of the FLSC is to assess whether the will exists within its member organisations and the profession to move ahead with developing plans and funding sources for a Virtual Law Library. This initiative seems an appropriate one for the FLSC as it would involve future cooperation and support from all of the law societies and their members. It is the intention of the FLSC at some point in the near future to transfer responsibility for the development of the VLL directly to the law societies. The law societies are first being asked to support the concept of a virtual law library. If the agreement on the vision is forthcoming then the law societies are asked to approve the Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 4 recommendation for the organizational structure of the VLL. Five options are considered later in this document. Finally, the societies are being asked to commit sufficient seed funds to provide a team of individuals to prepare a more detailed business plan and budget as well as an operational plan by next August’s meeting. The nature of the plan to be provided in August is set out at the end of this report. While the vision for a virtual law library is not the same in all quarters there is a fundamental vision of the core contents of the VLL (see below) which makes clear the reasons for aggressively pursuing this activity. The final actualization of this vision may change as opportunities arise or as barriers are overcome, but the core vision provides the basis for assembling the arguments and focussing the discussion. The Objective(s) of the Virtual Law Library The objective of the VLL itself must be made clear at the outset if there is to be a collective understanding of what is being created. Is the VLL, for example, a tool for increasing the productivity of lawyers? Is it a means of decreasing the need for hard copies of primary legal materials? Is it a means to provide all citizens with open and free access to the laws and regulations of this country? Is it the vanguard for digitizing most if not all future primary and secondary legal materials? Or, is it a means to decrease the rapidly rising costs of commercially published legal materials? Depending upon the forum, the objective of the VLL is likely the combination of all of these objectives. The over-riding, primary, objective, however, is to provide an up to date, public, single source of authentic copies of primary legal materials, historical and current, for all jurisdictions which can be searched and researched at the same time from one place, and the results downloaded as the authoritative version of e.g., a judgement or a statute. Without all of these characteristics, the VLL would be nothing more than a new Internet-based web-site containing a subset of primary legal information. What is the Vision Because any virtual law library must be created against a backdrop of the current resources, the current state and flow of digitized legal materials, the existing products of the Canadian publishing industry, and the federal-provincial judicial and executive environments we have in Canada, we propose a modest five point vision for approval by the societies: 1. The Virtual Law Library should provide one stop access to lawyers and legal professionals to all primary legal materials in Canada, i.e. laws, regulations, judgments, etc. Secondary materials are considered the business of private sector publishers. The VLL should provide a search engine designed for use with legal materials. The database structure and format as well as the associated search engine(s) must permit lawyers and librarians to search across jurisdictions, across time and date, using appropriate fields and keywords, with a seamless search capability. The VLL should strive to be the authoritative source for legislation and judgments and should permit downloads of these materials by legal professionals. 2. 3. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 5 4. The VLL should be free of charge to all society members, though they will in fact pay for the VLL through the yearly society fees. The VLL should permit free access to the laws and judgments of Canada by Canadian citizens through some form of public access system such as a component of the VLL Internet site or terminals in public libraries. 5. The Library Contents The concept of a Virtual Law Library is certainly not a new concept. It has been talked about in one forum or another for at least the last 10 years. Since then advances in technology have made the technical aspects of the task more feasible and less costly. The main issues today surround content, organisation, support, and adherence to, and adoption of, standards. Among those interviewed during the preparation of this document there appears to be a continuum of ideas regarding the ultimate contents of a VLL. This continuum extends from the vision of a core content which focuses on the provision of authentic and accurate primary legal materials to an expanded vision which adds to the VLL, secondary, interpretive and annotated legal materials. Finally there are views of the VLL in which it is conceived of as a full digital library with digitization of the entire range of contents of hard copy based libraries including digital catalogues, digital interlibrary loan capability for hard copy volumes, etc. This last vision is clearly a fully featured virtual library with long-term implications for major reductions in the use of hard-copy versions of secondary books, reviews, and journals, the maximization of their use through digital catalogues and ordering, and possibly their ultimate replacement with online products. For some writers this is the coming future of law libraries. For others, this may be part of the future but it is still generations away. Realistically the VLL needs to start with the primary materials and achieve the objective of making these nationally available in authentic form. Once this is in place the VLL and the societies can decide whether there is the will to create from this foundation a true digital library with some of the richness of traditional brick and mortar libraries. The following list sets out the initial primary materials content of the Virtual Law Library. 1. statutes and regulations brought into force and published under the auspices of federal, provincial or territorial governments; 2. 3. 4. by-laws passed by municipalities; judgements and rulings issued by courts; judgments rulings issued by administrative tribunals; First Nations Band By-laws and other acts of governance by First Nations governments. 5. As a starting point it is suggested that the VLL focus on the primary statutory and regulatory enactments (Federal, provincial, and territorial), the reports of decisions from the Supreme Court of Canada, the Federal Appeal court, and the Appeal courts of each province and territorial jurisdiction. It could then expand to include the reports of decisions in the lower courts and from tribunals, commissions, and other judicial bodies. If economics and leadership permit one would expect that in the future the VLL would follow similar paths to those followed by existing digital law libraries in other countries. The VLL could expand to include legal materials such as research documents, rules of court, lists of commercial publisher offerings and links, digital catalogues, interlibrary loans, journal access, and reviews, papers and articles. Links to other sites in this country and across the world would be included. In truth, this is potentially the beginning of a complete and interconnected law network. However, it Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 6 will be a difficult enough job to assemble and manage the primary legal materials that additional consideration of the ultimate nature and contents of the VLL can be left until some years hence. One of the National Virtual Law Library Committee members provided an exciting and challenging description of the vision of the VLL. “What is the vision of a VLL for Canada? One vision is that it would be free AND readily accessible to practitioners, researchers, academics, students, and the public. It would contain all the primary legal materials and it would permit, on some graduated cost basis access to a host of other publishers and services. Its organization and search capabilities would be world class and standardized to conform to the practice of law libraries across Canada. It would include indices and fast links to law libraries across Canada and in selected international jurisdictions to be able to find, order, or retrieve selected extracts, copies, or inter-library loans. It would become the primary legal reference and research tool of practitioners, the judiciary, social science researchers and academics generally. With appropriate certification and verification tools, it would also become the preferred reference base of the courts themselves.” This is not the only vision, but it is one with which to compare others. Base Requirements for the Virtual Law Library Core Data As noted above the core VLL holdings would consist of the Canadian judicial databases which record the laws, statutes, regulations, decisions, and rulings which emanate from the Canadian judicial system from the Supreme Court, the Federal Courts, the Superior and Supreme Courts, and the Provincial Courts as well as associated tribunals, commissions and regulatory bodies. Authoritative Citations It is one thing to be able to read and search across multiple jurisdictions but another to be able to cite the results. One of the core requirements of the VLL expected by many users is the ability to cite the information found as the official source of legislation, judgements and related case law. For a site to be authoritative it must undertake to provide the legal information received from courts, the executive branch of government, tribunals, etc., in exact and editorially correct form suitable for citation across the country. In short, decisions are placed online in their final official form. Accompanying this decision should be a citation in a form agreed upon by the appropriate legal bodies in Canada. The citation should allow reference to the decision or any of its components. The FLSC has already endorsed the work of the Canadian Citation Committee which developed a Neutral Citation Standard for Case Law. The Standard was developed by the Canadian Citation Committee representing court administrators, law librarians, legal publishers, law societies and others. A "neutral citation standard" is a means of citing court judgments without reference to specific publishers, databases or report series. The Standard allows every court registry to assign a Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 7 unique identifier to every judgment which, together with paragraph numbering, provides an easy and accurate way of referring to all court judgments. Such a system is necessary for accurate citations in a computer environment, in which page numbers have been rendered meaningless. In October 1999, the Canadian Judicial Council endorsed the Neutral Citation Standard for Canadian case law as developed by the Canadian Citation Committee, and urged all courts to implement the Standard as soon as feasible. In January 2000, the Supreme Court of Canada started to use the standard for indexing its own decision so that they can be accessed through the Internet and cited as authorities. Several courts across the country are now implementing the standard. The VLL will maintain continued and direct connection with the Canadian Citation Committee in order to encourage the citation by all Canadian courts as soon as possible. It is anticipated that citations would be automatically generated on the VLL when requested by a law society member and transferred with the digital document. Download Capability Many sites have some legal materials in digital format. The value of the VLL must be that a legal professional can download a text including legislation, case law, or rulings, and print and use this downloaded document in the day to day business of dealing with his/her clients and cases. The VLL site will need to provide those downloading either a guarantee of an ‘authoritative’ text or some imbedded, digital guarantee that this is the ‘real McCoy’. Thus, the VLL will need to negotiate with the courts to ensure that they will accept some form of ‘authentication’ provided by the mechanism for download used by the VLL. The Bilingual Nature of Citations and Downloads A key element in the Virtual Law Library must be the ability to provide the laws of this country (and decisions where applicable) in both official languages and in page formats which are regarded as authoritative by the judicial system. Thus, side by side or single language formats must be provided for users in both languages and when the ‘official’ version is side by side then this must be provided. As mentioned above, this matter was considered by the Canadian Citation Committee and it is expected that the standard developed by the Committee properly addresses these concerns. Again, the VLL would follow the work of Canadian Citation Committee so that these considerations can be properly addressed when and if necessary. Free and Public Access To the extent possible the core vision includes the desire for free and open access. Thus the VLL would be provided free of charge to all legal professionals as well as all other Canadians through a public Internet site on the World Wide Web. An exception to this rule of ‘no cost’ access may exist for downloaded materials from the site which are used in the day to day business of society non-members for situations requiring ‘official’ documents/citations. It is an ambitious and altruistic goal to allow the public access to detailed statutes, laws, regulations, and judgements. The principle may be wanting when candled against the practice. There is a cost to developing a site that is publicly comprehensible let alone publicly accessible. However, without a very strong public access and public education focus the VLL will quickly be labeled as a tool for lawyers only. Should that happen, it would likely close some funding doors which are aimed at providing funds for projects that have a broad based utilisation and impact. Canarie funding is an obvious example. This is only an issue if the societies will seek funding outside of the profession and the foundations. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 8 Furthermore, it is unlikely that federal and provincial courts would be as open to providing their materials at no costs to a VLLsite that did not have a strong public access approach. In virtual law library models from other countries there is often an ongoing project activity to develop the ways and means to increase public understanding and awareness of the law. Whether it is so to increase funding scope or for the public good it not to the point. It is a common element and one that would likely be a necessity within a Canadian VLL to achieve its public access objectives. In theory there appears to be no major impediment to allowing public access to all materials. An attractive option for some may be to block public access to any section allowing detailed downloads of authoritative materials. Furthermore, the public component of the site maybe segregated from the legal professional view of the site in order to facilitate easier research, searches, and downloads by legal professionals. This would also make it easier for neophytes to deal with a more beginner friendly component of the VLL, which is geared to their lack of experience. Some suggestions have been made regarding the use of a members only’ or ‘subscribers only’ button which allows password access to the more formal side of the site for legal professionals. However, this seems overly restrictive and it would not allow non legal professionals to ‘graduate’ into the use of more complicated materials. It also requires administrative overhead and site management which increases the costs and labour burden of the VLL. For these reasons it is suggested that no restrictions of this sort be applied to access. Taking Advantage of Existing Opportunities Two options that present themselves as potential starting points for the core of the VLL include the ACJNet project, with a home base in Alberta and Lexum at the University of Montreal. Both provide an existing public education component to the VLL and both have current web sites with some primary materials content. These groups also have the advantage of being associated with a university and therefore have an educational bias which supports the public access requirement as well as the need to train lawyers using primary materials. Another example where discussion should take place is with the Canadian Forum on Civil Justice, again located in Alberta. This group provides a web site which is primarily an index to other sites of relevance to the subject matter of civil justice. Furthermore, it attempts to digitally publish civil justice papers and articles which are not found in mainstream published journals. The Canadian Bar Association and the Canadian Association of Law Libraries undertake activities related to Continuing Legal Education (CLE) for practitioners. These organisations could approached to determine whether there is a means to incorporate or showcase some of each group’s activities and offerings within the VLL. The Tangible Side of the Virtual Law Library Irrespective of the final agreement on contents and objectives, there are some simple conditions which underlie the enterprise of developing a digital library. The basic conditions refer to the elementary infrastructure that is required to construct, house, and continually maintain a digital library. 1. The VLL will need to be a major responsibility of an individual or individuals with vision and leadership as well as management skills working under some organisational structure Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 9 (see the Options below) which ensures that the VLL can be brought into being and maintained. 2. A Virtual Law Library is first a single point of access Internet environment. A user accesses it through the Internet using a standard ‘browser’ and then uses the VLL’s search engine to find the materials required. As a website the VLL must be ‘housed’ in some physical location and must be maintained by the organisation. [This is not to say that all data are in one location, but that the main site requires a physical location. Certain jurisdictions may provide their data directly to the VLL, others may allow the VLL to link to their data under contractual arrangement.] The equipment upon which the central portion of the VLL resides must be maintained by a designated organisation. Multiple digital telephone or cable lines are required to connect the site to the Internet and the VLL must have world class security protection for its databases and user validation with secure downloads. Databases must be designed and structured to permit efficient use of the search engine. The search engine must embody a search capability that recognizes the principles of law library organisation and that allows users to search multiple data bases from different time periods in a variety of ways. Citation formats must be agreed upon and the data must be edited and cited appropriately. The data must have an archival home and set of procedures for storage and long-term readability and retrieval since formats may change over time 3. 4. 5. 6. 7. 8. 9. 10. Agreements must be put in place with information providers (courts and governments, etc.) which establish the flow of information and the rights and responsibilities of the VLL and the suppliers. 11. Condition of use and warrantee conditions must be dealt with. The Success Conditions The basic conditions above provide the foundation for the existence of a VLL digital site. The success conditions for a VLL relate to completeness, viability, trust, accessibility and focus. Completeness For the VLL to succeed it must have all of the primary materials accessible in a commonly searchable format. If only partial components of the primary materials are available then the VLL quickly degenerates to another publisher-style website offering some value but without the organisation and infrastructure backing available to a publisher. For the legal community to embrace the VLL it must see it as having a greater scope and value with respect to primary materials than any individual commercial publisher or collection of publishers. There appears to be no point in creating the VLL as another publisher holding a small percentage of the market share. While the VLL might commence with only partial primary material holdings it’s objectives and activities must be focussed on becoming the authoritative access mode to all primary legal materials. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 10 Furthermore, the site should not focus on digital information only. Like all true libraries the VLL should contain a catalogue of law society and courthouse library holdings across the country. The VLL would provide a means to obtain these through inter-library loan and would likely offer a fee-based service for copying, sending, and checking citations. A similar digital catalogue of, and hyperlinks to, other websites including publisher sites, where other interpretive and secondary materials can be accessed would be an obvious enhancement. The VLL if properly designed will complement the commercial publishing industry. Viability The legal community has existing relationships with the commercial publishers. Lawyers and legal firms may not be totally satisfied with the current costs and quirks of access to digital information but there is a widespread belief that they will continue to be able to access the same information in the future, even if costs continue to grow. The VLL is likely to be rejected by the legal profession if there is no guarantee or compelling reason to believe that the VLL is here to stay. Without a known source of long-term, committed, funding and an organisational infrastructure which users believe is ongoing and possibly of an institutional character, the VLL will not find the support of the legal community. Trust The VLL must be a trusted site. This reduces to four factors: 1. 2. The data must be kept up-to-date as fast as is reasonable for the usage requirements of the data users. The data must be correct and accurate – sufficiently so that the site provides a means for users to cite the appropriate information byte and it must be the ‘official’ version of the law, statute, judgement, etc. Decisions are archived and continue to be held within the VLL. There is no ‘temporary’ or ‘short term’ posting of materials. Users must be provided with some guarantee of authenticity. Without this and the guarantee of accuracy and timeliness together in one digital package, the VLL would be weakened substantially. 3. 4. This guarantee of authenticity must be assured. Without it, the VLL is a potentially errorcontaining collection of copies of statutes and regulations and users may need to resort an alternative means, e.g. hardcopy search in a traditional law or practice library to obtain an ‘official’ copy. The VLL may not be able to achieve this authenticity immediately. However, it must work with the information suppliers and courts to establish the ‘official’ designation for the VLL as holders of primary materials. With respect to case law, it will be necessary to have citation-enabled contents on the VLL. These judgements and decisions would in essence be the digital transcriptions from the court. The VLL, along with the societies, would be a publisher of these direct reports either on behalf of or in concert with the providing courts. This does not confer the status of an official reporter on the VLL. Rather, the VLL becomes the outlet for the court ‘official’ version. For this to occur, the VLL organisation must negotiate this role with each and every court and judicial executive government body which provides data to the Virtual Library. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 11 Accessibility Simple accessibility from older computers and computers with outdated browser software is important and can be accomplished in the first instance by ensuring that there exists a text version or outdated browser version of the VLL website. Older browsers will often not support today’s security requirements and a decision will have to be taken on the minimum security allowable within the VLL interface to the public. For those who simply do not have or who refuse to have Internet access the VLL may need to consider packaging its data on CD or future digital media which may be accessible to legal professionals in remote areas. This packaging would likely require a charge for at least the recovery of costs of the second copy produced and a means of charging and receiving payment would be needed. Alternately, the redistribution of primary materials to remote areas or electronically recalcitrant users may best be left to the law libraries which have a host of skills and experience in providing these services. One of the most important components of accessibility for the legal and library professions is that the search and retrieval engine(s) should be designed from a law library perspective. They should provide at least retrieval by standard document structure, citation parameters, key words and specific phrases, as well as proper names. Furthermore, it is desirable that case law relevant to legislation be cross-indexed in a reasonable manner. It is important that the search capability allows the user to follow the structure of the legislation. For example if the statute moves from title to chapter to section, this path should be open to the user. Even within this, however, the user should be able to find specific sections and the superordinate document organisation under which the sections fall. Thus there is a technical and standards side to the VLL which must define its procedures and practices. Focus Many legal information websites that exist today contain compilations of information or databases taken from other sites, unofficial reports, links to other websites, advertisements, continuing education materials or tools, etc. The VLL must have a central focus which makes patently clear how it differs from the standard publisher’s website, and sets out the actual role of the VLL. If there is to be a public side to the VLL then this must be clearly delineated and its objectives must be clear. Similarly, the role of the VLL with respect to the legal community cannot be ambiguous. The focus of the VLL under any of the concepts used in this document must be as the authoritative provider of the information content defined by the concept. If it is defined as primary materials, then the site should restrict itself to this goal and ensure that this goal is met before all else. This is not to say that there might not be complementary information or products which the site might bring to the practitioner or the public viewer but it must never lose sight of the intellectual bottom line which represents its objective. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 12 Why A Virtual Law Library In Canada today there are many resources available to legal professionals that would qualify as library and reference materials. Traditional legal libraries exist in most major centres and throughout many Canadian counties. Furthermore, large law practices often maintain both a hardcopy library and an associated research service. University and college law libraries provide an additional resource for the legal professional. In Canada lawyers have access to Internet sites and services and CD products offered by publishers such as QuickLaw, Canada Law Book, Carswell, Lexis, Editions Yvon Blais, etc. Furthermore a variety of jurisdictions across the country post their judgements on the Internet, and many provinces post their legislation. It would appear that this trend will continue and will grow. The question thus arises of why Law Societies would contemplate a Virtual Law Library. The simple response is that the current trend toward diversity breeds confusion, not ease of use or access. The standard arguments for a Virtual Law Library stem from the existence of a variety of specific needs and competence based principles that are not being met either within, or external to, the judicial and executive systems of Canada. The basic arguments are these: 1. It is a public right and in the public interest to have access to laws and regulations for all Canadians. There is currently no broad-based public Internet access to the national or provincial statutes, legislation, rules, or regulations, which govern Canadians. The nation’s laws, regulations and rules as set forth in national and provincial legislation, statutes and regulatory bodies are a fundament of democratic society. There can be no argument that if the citizens of Canada cannot access the laws and regulations which are to govern the behaviour of each citizen, corporate or individual, then the government and its judicial bodies have done a disservice to Canadians. The VLL provides a mechanism to allow free one source access for all Canadians to the legislation, laws, and regulations which govern their lives irrespective of the jurisdiction from which the information was derived. 2. The public not only has a right to access the laws and regulations which bind them, but to access the decisions, judgments and rulings handed down by the judicial system, regulatory bodies, commissions and tribunals because these interpret the laws and regulations of the country. The VLL would provide a means to view not only the laws but also the decisions, judgements, and case law which essentially interpret them. 3. The digital materials environment for legal professionals, while growing in size and coverage is fractionated and difficult to work with because there is so much diversity in digital data handling and organisation as well as the associated search tools. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 13 There are a growing number of small jurisdictions and provinces that are beginning to duplicate efforts and incur costs to put their materials on the web. In many instances the formats, the organisation of textual data, and the search engines are radically different from one information provider to the next. Thus legal professionals wishing to search across jurisdictions, to combine case law, etc., are confronted with a mindboggling task. 4. Both the public and legal professionals have a need to access primary legal materials at a cost which is reasonable and fair. Law libraries both in the court environment and in law schools need a means to provide content to their users at reduced rates and in digital form. The costs of legal publications have risen dramatically over the past few years and are now reaching the point where they represent a substantial component of a law firm’s expenses. When compensated for through pass-through billing or increased hourly rates there is growing resistance on the part of many clients to be billed for the cost of obtaining information which they may perceive as a public good already placed in the public domain at taxpayer expense. 5. Research involving statutes and case law is cumbersome and difficult for individual lawyers, law librarians, legal educators, and other legal and paralegal professionals. This difficulty stems from many sources – the lack of good research skills, the need to learn many different systems, the need to pay for or subscribe to a multiplicity of publisher sites, the technical differences between the sites, and the variety information formats. 6. The VLL will provides a crucible for research and the development of professionals in the handling and management of digital legal information. The VLL provides a means to attract research funding and research attention to the issues of digital legal libraries. It is a catalyst for investigation of the technologies and problems facing legal educators, law librarians, legal professionals and the public with a thirst for knowledge about the law. The explosion of information on the Internet and the variety of tools to organise and use that information have thrown many professions into information upheaval. The VLL can provide the opportunity for law libraries, law schools, and the profession to take charge of the research agenda and find solutions to information technology problems that attend to the law. This is a difficult challenge to meet if there are only the commercial publishers to use as the research environment While these six arguments carry substantial weight the overarching reason to develop a Virtual Law Library is more likely one that goes back to first principles. The crucial day to day use of the country’s primary legal materials is the province of law librarians, private and government lawyers, judges and in some instances civil servants. However, the organisation of the data, the mode of access and the character of search capabilities, the guarantee of authenticity, and the completeness of the information are not in the hands of these prime movers. The digital information that should be available to the profession is not truly freely accessible ‘in the digital library’. It is within the control of publishers who provide portions of it at a substantial cost and Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 14 who make choices about what is important and what is not and organise the information in ways which are advantageous for their business objectives. The creation and management of a virtual law library, if it is to serve the profession and the public, falls squarely within the purview and competence of law librarians who in turn serve the practitioners, judges, researchers, and other users. The governments and courts as well as librarians and practitioners have lost control over the flow and organisation of basic information required to do their jobs or fulfil their mandates. The National Technology Committee has suggested that this is the fundamental reason that a Virtual Law Library must be developed and under the auspices of the law societies. Who Will Use the Virtual Law Library The Australian virtual law library had a specific intended audience at inception – Australian academic legal researchers. As it turns out, this VLL, Austlii, now receives approximately 80,000 hits a day (over half a million hits a week). The utilization statistics indicate that, surprisingly, most users seem to be outside the direct legal community in that country. Educational institutions (about 30%), the legal profession and business (25%), community organisations (15%), government (10%), and 20% from overseas. The Cornell digital law library reports over 2.25 million hits a week with a very strong audience beyond legal professionals and legal educators. Australia has population of under 20 million, the U.S. over 200 million. Digital library usage data likely under-report the use by lawyers since in firms where there are professional law librarians it is often the library that conducts research on the Internet on behalf of its lawyers. Nevertheless the lesson to be learned from others is that the audience is extremely broad. Both of these organisations have developed virtual law libraries within the last 8 years, which started with a focus on primary materials. Both have succeeded in attracting a much wider audience. At a minimum this suggests that vendors specializing in value-added materials and public access aids could expand their markets. Working with the VLL publishers might find another means to access the user base outside the legal profession. The Virtual Law Library as currently conceived in this document is not primarily a tool for academic legal researchers. Rather, from discussions with stakeholders the Canadian VLL seems to be focussed on four main user groups in the following order: 1. 2. 3. 4. individual lawyers, judges, and law firms through direct access and through the intermediation of law librarians; students and professors in law schools and paralegal courses in universities and community colleges. the public in its many forms – government employees, citizens, businesses, high school students, etc. the rest of the world, which in its dealings with Canada must come to grips with its laws. Who ultimately will use the VLL is an empirical question. The evidence, however, is that the potential user community is extensive. What may be more important in determining usage is how well the site can be used and accessed by all four user groups. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 15 The Virtual Library and the Legal Publishing Industry in Canada Some of those interviewed during the writing of this document have suggested that a successful VLL will weaken Canadian publishers, possibly to the point that it will destroy the Canadian legal publishing industry. The key objectives of the VLL are not competitive but relate to the freedom of access to information for all Canadians. To the extent that the VLL may be in a position to satisfy the needs of legal professionals for authenticated primary materials it may be seen as overlapping with the private sector efforts. However, there are reasons to believe that the existence of the VLL may invigorate publishers to increase their value-added components and to address new markets that the VLL may stimulate. It is also an objective of the VLL to ensure that where publisher-based products are available that the users of the library can find these products and connect with the publishers. To the extent that use of the VLL becomes widespread it becomes a device for educating the consumer. Educating the consumer and creating a demand for accurate information is part of any information reseller’s strategy. Thus the VLL would indirectly provide a cost–free marketing and advertising portal for commercial publishers to reach new and existing markets by assisting in the education of that market. Virtual Law Libraries in other countries, i.e., the United States and Australia, co-exist with the commercial publishing community. Furthermore, in both countries cited, some joint projects have been undertaken which involve both the virtual libraries and the commercial publishers together. The relationship is not inherently antagonistic. It must also be remembered that primary legal materials openly accessible on a free website do not constitute the ultimate in a legal practitioner’s dream. Rather, these are but the raw materials upon which a publishing industry can layer interpretive and enhanced products. Like the decision of the United States government to provide inexpensive (media cost recovery) access to street mapping used in the Census, the provision of organised and accessible primary legal data on the Internet is only a starting point for private sector product development. The U.S. decision to provide the basic administrative map data for the entire country to its citizens has provided a major impetus to the development of geographic information products, software, and services to almost every major industry in the United States and in fact to the world. Similarly, the FLSC initiative to stimulate the provision of the basic primary legal material in a common format through an easy to use common vehicle should provide a similar impetus for the private sector. Publishing companies will be empowered to move beyond the simple fragmentation of legal materials into those which are offered by Company A versus those which are held by Company B. These firms must meet the challenge to move to a competitive and lucrative market environment which focuses on the utilisation, interpretation, reorganisation, analysis, software tool development, and management of this judicial raw material. Rather than stifling competition, this activity has the potential to ensure that competition will occur and that the basic raw materials and motivation required for a thriving industry are in place. Once legal information is available in an accessible form, the market encompasses the broader public, government employees at all levels, journalists, law schools, professors and students at colleges and universities, high school students and their parents, consultants, private business and even publishers. It should be noted that even though there are a myriad of legal information websites on the Internet some law librarians suggest that it is unlikely that most legal professionals currently derive their day to day primary legal information directly from the Internet. The market for paper publications does not vanish with the creation of the VLL. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 16 On a parallel, the medical profession is experiencing a revolution in product development and professional quality improvement as a result of the increase in public access to medical information. This has not worked to the detriment of doctors or medical publishers. Rather, it has spawned a major medical information and analysis industry related to best practices, protocols, software and research spearheaded by many physicians and surgeons who see this as the removal of the shackles of the ignorance and sequestered practices of the dark ages from the profession. In sum, the National Technology Committee believes that the VLL will not necessarily have a detrimental impact on the publishing industry. Can there be Partnerships with Commercial Legal Publishers in Building the VLL The VLL must know its limits and must not seek to become one of the club of legal publishers for profit. This is neither its intent nor its mandate. The VLL will not likely have the funding at the outset or even in the long run to engage in print publishing, marketing, and custom packaging of primary legal materials. Their public access imperative may force the VLL to offer data on CD but the law libraries may provide the mechanism for individuals without computers or Internet access to reach the VLL. There are some apparent reasons to consider creating a VLL in partnership with one or more publishers: 1. Publishers have existing infrastructure and experience that could be used in materials handling, editing, markup, website creation and management, etc; The historical data held by one or more publishers would not need to be recreated; Any argument that the VLL was taking business away from the private sector would have less impact; Publishers are likely better at producing materials which can be used by the public, and therefore may actually further the public interest goals of the VLL; Publishers already have working relationships with many current information holders and suppliers which may facilitate development of the flow of data to the VLL. There may be some incentive for a publisher to work with the VLL because there is likely a major marketing and positioning advantage to be within the embrace of the positive kudos of a virtual law library with access to all primary legal material (assuming this can be achieved); A strong publisher-VLL partnership or joint venture would likely strengthen the publishing house and increase the belief in legal professionals that the library would be both more complete (i.e., would contain the publisher’s historical primary legal materials as well as all future materials) and more likely to survive financially and for some time to come. 2. 3. 4. 5. 6. 7. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 17 For some stakeholders in this arena, a close relationship with one or more commercial publishers is equivalent to dancing with the devil. The counter-relationship thinking includes the following: 1. Once the VLL has defined a partnership or joint venture with a commercial publisher the VLL may find it very difficult to attract grants or research funds because it will be perceived as part of a commercial entity with a classic profit motive. It may also be difficult to attract start-up funds for the same reason – viz., the perception of a major advantage to a commercial publisher. The information suppliers, governments and courts, may regard the VLL a nothing more than a publisher and charge for their materials or simply refuse to provide them. The goal of open public access to statutes and decisions may be a hard one to achieve, and in fact may directly conflict with the normal business interests of information publishers; It may be a cost increase impact in other publishing areas since part of the deal with any publisher must permit the VLL to provide open access to primary legal materials that may have previously brought revenue to the publisher. The publisher will likely want to see any lost revenues recouped from other products; If the VLL were to find itself in difficulty at some point, then the risk of the partnership collapsing because of the financial risk to a partner publisher is likely high; If the publisher relationship is seen as the VLL buying services then the costs are likely to prohibitive, or at least market based. Thus it becomes difficult to take advantage of any less costly means to develop and operate the VLL – e.g., by using existing law school, law library, or paralegal resources; In some sense, partnering with a publisher puts the VLL on the opposite ‘side of the fence’ from legal professionals in that it preserves a great deal of the publisher’s control over legal information and access to it. 2. 3. 4. 5. 6. 7. An alternative to partnership would be to simply purchase a major publisher and use this as the vehicle for the VLL. Ignoring the issue of whether any publisher might be for sale, or might have a purchase price that the VLL funders might afford, this seems to be a sure way to destroy a functioning Canadian business. This would effectively represent the purchase of a commercial publisher in order to turn it into a non-profit-publisher of primary materials. The overhead and costs of a commercial publishing operation and the added costs of dismantling its marketing and promotional staff and likely much of its middle and senior management would be great indeed. There simply is no business imperative within the VLL concept as set out by those interviewed to date which would make sensible the attempt to use a commercial firm as a surrogate for the VLL. To date this research has not been able to find any private sector-public sector virtual library partnerships which have been successful and provide an obvious model to follow. It will need to be a creative relationship or an arms length one if a relationship is to be established with one or more publishers. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 18 This is an issue that can likely be moved forward in only one of two ways: a) b) decide that the difficulties are substantial and therefore put aside the concept of working with a commercial publisher; or, bring the publishers to the table and determine whether they are prepared to work with the VLL enterprise and how all parties would deal with the major issues of public access, historical data access, and revenue flows. Putting the concept of partnership aside, many of the reasons adduced for working with a private publisher are simply that publishers have the experienced operational, promotional, and management staff who could move the VLL ahead relatively quickly. Thus an approach which simply put a Request for Proposal or a Request for an Expression of Interest out to legal information publishers requesting management and operational services might create an initial relationship that could grow over time. At worst, it would spell out the empirical hurdles and issues of partnership. A glance back at the Australian thoughts on relationships with publishers illustrates their view that the virtual library and commercial publishers are, or at least should be, engaged in different activities. The National Technology Committee suggests that this view is a reasonable one. The Australian Legal Information Institute makes the following statement on the relationship with commercial publishers: We do not see any undesirable conflict or duplication between AustLII's role and that of commercial legal publishers. AustLII's aim is to take data created at public expense and use publicly available tools for the creation of Internet resources to create the best level of computerised legal information on the Internet that can be achieved using those resources. To do so, it has a modest level of publicly funded infrastructure. Commercial publishers of computerised legal products should be able to do better than that. Their role is to add value, not merely to repackage public materials. In summary, one function of AustLII is to provide a benchmark or basic standard of computerised legal resource, which does not require payment for use. Legal publishers will have to add value beyond that standard if they are to convince the market to pay for their products. For some users, the resources provided by public servers such as AustLII will be all that they need or can afford. For others, the added value provided by commercial publishers will be well worth the cost.“ AustLII website – ‘about AustLII In sum, this is a pivot point for decision making. Working with a publisher in a co-supportive business relationship represents a path that differs geometrically from the alternate approach of keeping the VLL strongly in the public or not-for-profit camps. The Issue of Current Free Access to Commercial Services The mythical Prometheus was a Titan, credited with bringing enlightenment to humans. Prometheus stole fire from the Gods and gave it to humankind, bringing the power of warmth and light to the dark and miserable earth. Prometheus acted against the Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 19 express wishes of the Olympian Gods, who wanted to keep the power of fire - enlightenment - for their exclusive use. Zeus punished Prometheus by chaining him to a rock in the Caucasus Mountains. Every day, his liver was devoured by a giant eagle, only to regenerate overnight. from the website of Prometheus Inc. The publishing industry has in many instances, e.g., Quicklaw, Carswell and others, provided specific legal professional groups with free access to their digital data and services. Judges have free access to data, university law school libraries have free access to some data and services, some libraries associated with law societies have similar relationships. The direct payors for the use of the digital databases and services would appear to be primarily the practicing lawyers and law firms and in some cases law libraries. Some of those interviewed during the writing of this document suggested that the VLL could engender a backlash from commercial publishers who would cease to provide law libraries, law schools, judges, and others with free use of some of their digital products for non-commercial use. Free access is unlikely an act of true altruism on the part of publishers. Rather it is more likely a means to ensure that there are strategic dependencies upon the services of publishers which are created to protect the publishers by providing access to decision-makers and authorities. These free services also create a constituency of free service users who’s self interest equivocates with the keeping their free service in place. A sensitive issue therefore, is that if courts, law libraries, law schools, and law societies take a supportive role with respect to the VLL, publishers may react negatively. Publishers could use their free provision of services to these groups as leverage to weaken support for the VLL. They could also simply cease to offer free services in order to increase revenue. They could increase the cost of existing products. Publishers are ‘for profit’ organisations and their goal is to generate revenue from the sale and manipulation of legal information. There is nothing wrong with that but it is a tenet that must be front and centre in any negotiations with publishers. The National Technology Committee understands that there would be negative impact of removing free access to a publishing company’s legal holdings from judges and educators. Conversely, this action could be very detrimental to the publisher’s image. Furthermore, companies withdrawing this current free access would lose the direct promotional benefit of having students taught the law using the publisher’s digital products. The counterpoint is that if the VLL is successful in mounting the primary legal materials from most if not all court levels and executive jurisdictions the problem will not be as great as it appears. The judges, law libraries, and universities will have access through the VLL to the many of the materials they can access now through free subscriptions to publisher sites and databases. The Historical Data Issue There is a major question that must be addressed in the creation of a virtual law library. In many instances historical data and text resides with commercial publishers who have spent time and resources creating a digital record from paper. Unfortunately, the VLL does not currently have as a critical path objective the digital resurrection of historical legislation, statutes, judgements or Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 20 rulings. This would be an expensive undertaking and the scope of the VLL, for economic and currency reasons, must start with the present and the future, not the past. Private companies holding existing historical databases of raw materials should have an ongoing source of revenue through the continued use of these databases. Furthermore, such firms should be in an advantageous position with respect to negotiating relationships for access and projects with the Virtual Law Library. The options for bridging the problem of securing historical materials would appear to be the following: 1. Develop an agreement or partnership with one or more commercial publishers for access to the publisher’s historical database as a VLL licence; Purchase historical data from one or more commercial publishers (assuming they will sell and the price is reasonable); Prioritize the historical datasets required and attempt to fund projects that allow the VLL to digitize these on a priority basis over time. Thus once the current primary materials were secured and an ongoing process in place, funds and resources would be sought to create the historical archive; Continue to use the historical data in paper format or purchase it via publisher electronic subscriptions; Determine if the originators of the judgements and legislation have any components of the historical information which could be recovered. 2. 3. 4. 5. None of these options is particularly satisfying and the final solution may involve some elements of each. The establishment of the historical information is also a potential project for jurisdictional law libraries and law societies possibly working in concert with universities and colleges. The Law Libraries and the Law Societies Law libraries and law societies in Canada provide lawyers and other library users (citizens, students, civil servants, and journalists) with legal reference and descriptive materials as well as services related to researching both hard copy and digital legal resources. In some cases libraries charge for their services, e.g. twenty five dollars an hour for research, and ten or fifteen cents a page for copying – and in some cases they do not charge at all. Some Libraries such as Saskatchewan’s main Law Library are involved with the court system and provide data entry and organisation services for judgment and digest databases. These databases are further made available through access on the Internet. In some provinces and jurisdictions, e.g., Quebec, judgment and digest data are made available through relationships with law societies or commercial publishers. Smaller law libraries may be part of, and dependent upon, the larger more central law libraries. Budgets and staff may in some cases be provided by a central law library but staff members work in smaller communities of a province on a part time basis. In other cases, the smaller libraries, such as some county libraries in the larger provinces, may be independent of the central library. Often, there is a highly collaborative relationship between the network of small law libraries and the larger law libraries. The contents of law libraries are a compilation of hard copy primary and secondary law materials, as well as subscriptions to digital services such as Quicklaw, Westlaw, etc. Law libraries attached Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 21 to educational institutions may have advantages in that access to commercial services is sometimes provided at little or no cost as long as the information is used only for educational purposes. There is to some extent an expressed concern that the creation of electronic library resources is a major threat to the role of librarians and to the size of their working cohort – not to mention being a threat to their budgets. Undoubtedly there is a threat to the traditional librarian and library stereotypes. More legal and paralegal professionals as well as citizens will demand digital lawrelated resources at the desktop. But in many instances the desktop operator will not up to the task of sorting through and using that resource. What’s more, the digital resource must be organised, indexed, and structured so as to permit research and retrieval suitable to the needs of the legal profession – and these needs are not static in the new electronic environment. Law librarians have always been, and still are, information professionals. Because the physical library may contract in size this does not mean that the librarian’s role has followed suit. One of the challenges for the VLL is to develop a working relationship with the law libraries and societies, including law school libraries. These groups must be involved in the definition and implementation of the Virtual Library. It is the skills of the law librarian that the VLL will need to properly organise its information for retrieval and research. And for at least some law libraries there could and should be a direct working relationship with the VLL and its users. For some libraries this may mean the opportunity of offering VLL-assisted fee-based services to courts and others to generate digital versions of judgements and potentially legislation for their particular jurisdiction. For other law libraries this may be neither desirable nor possible. For the libraries and librarians who are up to the task it will mean using the raw materials of the VLL to establish a means to train and retrain legal and paralegal professionals – and the public – to properly use the information newly available to them. Law firms have many professionals who will only embrace the digital side of law if they receive one-on-one training from an individual with law librarian skills. In addition, if the VLL begins in 2000, the historical information from the past must still be used in paper or in commercial publisher provided form. Thus the transition to totally digital documents is a process, not an event. The reported view of many institutional administrations seems to be that librarians occupy themselves principally with paper and as paper decreases so does librarian’s role. This is not only shortsighted it is wrong. Law libraries and librarians must become the source of trained information professionals needed to assist others to use and understand the chaos created by dumping masses of poorly organised information into cyberspace. Contrary to popular opinion the Internet is not an organized library-like entity. It more resembles a dumping ground. There needs to be a means to connect law librarians with the digital users who are less frequently standing in front of them. Working more frequently with legal professionals at their sites and focussing on the materials in the VLL and related to the VLL may be one method. The opportunities for library embrace of programs for Continuing Legal Education in concert with the CBA, the Canadian Association of Law Libraries, Universities, Law Societies, and law practices, is there for the taking. It means, however, retooling staff, becoming the experts on the digital holdings, and honing research skills to make use of the failings of the rapid expansion of islands of bits and bytes masquerading as information. This is fee-based work or it is work conducted by librarians working for libraries, societies or law firms. The VLL only adds a tool to the librarian’s kit. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 22 The Law Schools For the law schools the Virtual Law Library becomes another source of digital data and an online research tool. Most have free access to some of digital materials supplied by commercial publishers. The basic requirements of the law schools appear to be: To have all the necessary information items in one place, i.e. case law, statutes/legislation, decisions/rulings; To have to have a search capability that goes across all jurisdictions and searches in a variety of ways and to have this available to faculty and students; To have the means for faculty to create custom case books and download materials; But they also need things that the VLL may not provide at all – at least not at the outset: Linkage to annotations, interpretations, and abridgements; Articles and reviews by subject matter and linked to cases; Journal contents and indexes, etc. Law schools and their associated libraries appear to be potential users of the VLL. It is not until they have an academic interest in legal libraries or information technology and the law that the perspective changes from user to potential partner or associate. The work being carried out by the university of Montreal in the Centre de Recherche en Droit Public is an example of an instance wherein the digitization and organisation of legal information is coupled with the academic research interests in legal information science and technology. Similarly, the Alberta law school is associated with at least two activities mentioned elsewhere, ACJNet and the Canadian Forum on Civil Justice. These are obvious centres of related activity that cannot be ignored in the attempt to create the Virtual Law Library. Options for the Virtual Law Library The options for structuring the Virtual Law Library fall into five categories. There may be nuances or arrangements which provide variations on each theme, but the main options are discussed here since they can be reasonably well differentiated. Details of business relationships are at best speculative since in many cases the actual relationships result from negotiations between the parties. Those presented here are for illustrative purposes only. The options below were considered and the society meetings in Whitehorse in late February, 2000. The general concensus of the Whitehorse meetings were that the multi-university institute option which was set out as the leading candidate below came with too great a management burden. The burden exists because of the complex nature of university administrative requirements and intricacies. Accordingly, the Whitehorse conclusion was that a model which combined the best of the not for profit option with an institute model which essentially contracted work to one or more universities was the preferred approach. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 23 Option 1 The Private Sector Option A private sector business partnership or joint venture. Under this option a private sector corporation would be created to hold the rights and intellectual property of the VLL and represent the intentions of the law societies. That organisation would have a very small staff and would negotiate with private sector publishers to develop a partnership or joint venture to bring the VLL into being and to manage it. The commercial publisher’s staff would be the editors, technicians, and managers who worked on the VLL. This could be a true partnership in that some small portion of equity in the VLL as a corporation could pass to the private sector partner for the VLL. The majority of ownership would, however, reside in the law societies and potentially other partners if required. The VLL on the other hand could receive rights to the publisher’s historical primary legal materials. As a partnership, the two groups would ensure that the primary materials were organised and mounted within the VLL. Thus both partners have put something into the partnership. Some possible lines of relationship are sketched out below. This is an entirely speculative exercise and sets out some possibilities but many other variations to this type of relationship could occur. It might also occur that no publisher is interested in a partnership relationship. The ownership of the VLL corporation would not extend to ownership of the information held within the VLL. This information is obtained and held in the VLL usually under a contractual relationship with the suppliers. The Role of the VLL Organisation The role of the VLL organisation would be to obtain the funding necessary to mount the VLL, maintain it over time, and to ensure the flow of primary materials to the VLL. The VLL organisation would establish or sanction the adoption of the standards and formats to be used based on guidance from the law societies and the appropriate experts. The VLL would require relationships with other groups such as technology firms or universities who can provide to the VLL organisation the expertise needed to ensure that the VLL is created as required, i.e. with an appropriate search engine, with an appropriate markup language choice, etc. This would be accomplished in concert with the private sector partner. However, to the extent that the private sector partner has existing infrastructure and standards, there may be a need to compromise in order to keep costs down. The VLL would want to have the rights to a copy of the private sector partner’s historical data holdings if the partnership were to fail or be dissolved. The VLL would have likely have no rights to products and services provided by the private sector publisher partner which were regarded as secondary legal materials – e.g. annotations, interpretations, headnotes, etc. Conversely, any revenues which accrued to the VLL as payments for special services such as download services and compilations could not be used to further any business ventures related to the private sector publishing partner. This much said, such a partnership could further evolve in a way that the VLL might come to invest in the secondary component of the publisher’s business and thereby become a full sharing partner in all revenues. This would need to be negotiated and would require the VLL (i.e. the law societies) to essentially play the role of investors in the private sector firm. To that extent, for secondary materials the VLL would be a profit motivated organisation in the same fashion as the private sector partners. It should be noted that this is not being suggested at this point, but it a possibility of expanding the simple partnership relationship to an investor partnership once the VLL has its primary materials mounted and managed. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 24 The Role of the Private Sector Publisher Partner The private sector partner would be responsible for handling and posting the data and managing the day to day operations of the VLL as a website. It would do this in concert with the VLL organisation but adhering to the design and specifications of the VLL—costs permitting. It would be the publisher’s staff who would undertake the work related to mounting data to the VLL or preparing the data. It is not clear that there would be a flow of work to the law libraries under this option. Part of the agreement could be that the private sector partner would be paid a maintenance fee by the VLL organisation for its ongoing work in maintaining the site and for allowing access to that organisation’s historical datasets at no cost to the public or legal professionals. This is not the same as negotiating a universal licence from the publisher for access to the historical data. This could be the publisher’s contribution to the value provided through its partnership with the VLL to offer all primary materials to clients from a site that is a combined VLL and publisher’s site. This would likely be a marketing investment for the publisher. The private sector partner and the VLL organisation could share in some agreed upon ratio, any revenues derived from the charging for special services. The private sector partner would be permitted to identify themselves as a partner with the Virtual Law Library, and the contract would be a long term one of approximately eight to 10 years. Both the private sector partner and the VLL organisation would want to have negotiated rights to a copy of all primary data posted to the VLL. Thus if anything untoward occurred to destroy the partnership, both sides would have a copy of the data developed during the partnership and before the partnership. The rights to continue to use the information would need to be negotiated with the supplying jurisdictions. Since commercial publishers have existing relationships with information suppliers the private sector partner would be expected to assist the VLL organisation to conclude negotiations for the placing of information in the VLL and allowing open access. Funding and Revenue The VLL organisation would be responsible for seeking funding for special projects related to advancing legal information technology, continuing legal education initiatives, and analysis of primary materials. Funding would be sought from the law societies by the VLL organisation. The law societies would collectively own the majority of the VLL corporation and support it through an annual fee or charge to their members. Societies would not own any portion of the commercial publisher unless the societies decided to invest in the firm. Law Societies might receive some of this revenue as fees to assist the associated law libraries in offering services to ensure that jurisdiction generated data are properly digitized before movement to the VLL. Alternately, work to place data in the VLL might, as part of the partnership, be undertaken by the publisher partner. The VLL would wish to receive some royalties from the profits of any secondary product which took advantage of the investment the VLL organisation has made in assembling the totality of primary legal materials. This would be part of any negotiation with the publisher partner. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 25 Organisational Requirements The operational requirements of this option are primarily on the side of the private sector publisher partner. What the VLL organisation needs is a strong leader capable of carrying out the initial negotiations and working with the private sector to protect the continuing interests of the VLL organisation. This person or persons will also be instrumental in negotiating with information providers for primary legal material flows to the VLL. The other capability that this individual requires is the ability to work with the law societies, law schools, and universities to ensure that member fees are fairly obtained and appropriately allocated. Furthermore, the ability to raise additional funds is a definite requirement as is the ability to work with related organisations such as the CBA and CALL. Beyond a strong leader and a small secretariat capability an additional requirement is the ability to harness the intellectual abilities of others to ensure that standards for markup languages, authenticity, etc., are developed or adopted and executed within the VLL. It is likely that the VLL organisation would be co-located with the private sector partner in order to maintain constant contact and ensure that operational objectives are also met. The Handling of Primary Materials The handling of primary materials refers at a minimum to the processes of indexing, crossreferencing, marking up text for use on the Internet, and verification or addition of citation metadata. This also includes ongoing maintenance, current backup and long term archiving of VLL holdings. These are steps that usually take place after the materials have been put in some digital form by the government or court. It would be goal of the VLL under any option to work towards an environment in which all governments and all courts provided digital information to the VLL in a standard form. Under the Private Sector option the primary materials would be edited and prepared for loading to the VLL by the private sector partner’s staff. In this instance the materials would be organised in the same manner as the other materials in the private sector partner’s legal information holdings. The browser interface to the materials would also likely be the interface used by that publisher. VLL required modifications would be paid for by the societies. Governance The Virtual Law Library from the private sector partner’s view would essentially be a companion business in which the publisher had a pecuniary interest and conversely. The partnership would allow the publisher to market aggressively against the competition. Thus the publisher would have his or her own governance environment which is entirely separate from that of the VLL organisation but cross board membership between the VLL and the publisher’s board would be expected. The VLL organisation would be owned by the law societies with a small percentage held by the commercial publisher. Other equity partners are possible if sympathetic interests are found between the law societies and others. To ensure the interests of the VLL were being served and to establish policy for the VLL executive officer would report to a board of governors drawn from the existing stakeholders from within and outside of the law societies. Likely sources for board members would be the judicial councils, the CBA, the deans of law schools, CALL, etc. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 26 To ensure the financial integrity of the VLL as a corporation the organisation would, like any other corporation, appoint a financial and a legal advisor. Again, the reader is warned that all options here are speculative at this time. Option 2 The Purchase a Publisher Option Purchasing an existing Canadian publisher. The law societies would purchase a Canadian publisher of legal materials (providing there is a willing seller). This corporation would then take on the mission of ensuring that all primary legal materials were acquired and loaded on the Internet to permit free access, searches and downloads by all society members. Free access would be provided for all citizens of Canada. The corporation would continue to have a profit motive for secondary legal materials and would likely have an advantage in this market because of the positioning afforded the firm by being the one point of access authoritative primary legal materials site. Roles of Each Party a Publisher is Successfully Purchased The law societies would own the publishing corporation and be responsible for ensuring that a senior management cadre was in place and knew and observed the objectives of the purchase. The newly acquired publishing company would likely need to renegotiate or at least confirm existing agreements with legal information providers because of the change of ownership as well as the free access provision. As a publisher with existing assets there would be an ongoing imperative to existing shareholders or investors to continue to generate profits for the company for non-VLL related activities. Thus the purchase involves two major activities – bringing the VLL to life as well as running a profitable business alongside the ‘no-charge’ VLL access. The opportunities would be there because the VLL could be used as a marketing vehicle for secondary materials. Of necessity the corporation would need to be divide its resources by focus: VLL versus secondary for sale materials. Funding and Revenue Funding would be provided by the law societies for the VLL, but additional revenues would likely be derived from the sale of secondary interpretive products developed by the publishing firm. Organisational Requirements The split between the objectives of the VLL and those of a profit making value-added commercial company would need to be reflected in some form of corporate structure. Setting up a divisional structure which allowed each group, VLL and secondary materials, to proceed with different targets and objectives would be one option. The Handling of Primary Materials As in the case of partnering with a publisher in Option 1 above. Governance Governance brings a special set of problems because many publishers have an existing structure of investor and board relations. The board would likely need to be restructured to ensure that the new ownership had the majority control within the board. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 27 Option 3 The Become a Publisher Option Creating a digital publishing corporation. The societies would create a new corporation, wholly owned by the societies. The mission of the corporation would be to assemble and publish all primary legal materials in Canada. The corporation would recruit and hire the necessary staff, and contract services as required. Unlike purchasing an existing publisher, this option does not complicate the enterprise with an existing profit-motivated business operation. This option would differ from a not-for-profit option in that is assumes that the societies are creating a full-fledged publishing company with a focus on primary materials at the outset. There is little that precludes and much that calls for a future expansion to secondary materials. Startup and operating costs will need to be covered and as a publishing company it would be normal to expect that the VLL as a publisher would seek to maximize its reach as well as its revenue. Funding and Revenue The corporation would be funded by the law societies but could consider seeking revenues from government legislators and the courts by offering a variety of information handling and websiterelated services. Organisational Requirements As a true publishing company, even with a focus on primary materials, the VLL would need to be organised as a publishing entity. This option brings with it the issues of hiring employees, bricks and mortar location, and operating equipment and computing. A senior management cadre would be required. The Handling of Primary Materials As in the option of purchasing a publisher. Governance Governance would reside with a board established by the societies. Option 4 The Not-For-Profit Option A separate not-for-profit organisation responsible for obtaining the services needed for the Virtual Law Library. This option is one in which there is an independent not-for-profit organisation created with a small infrastructure. The not-for-profit organisation would purchase or negotiate services from the private sector or from universities and/or law schools or law libraries. The key difference between this second option and the first option is that the only relationship possible between this organisation and the commercial publishers is one wherein the publishers are paid for services or for data. There would be no equity oriented business partnership involved. Furthermore, since this is a clearly established non-profit organisation, it has a straightforward mandate to bring the VLL into being irrespective of where it is housed, managed, etc Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 28 Once again, as in the case of a commercial organisation, the VLL not-for-profit would be owned by the law societies and potentially other non-commercial equity partners if the societies found reasons to embrace additional stakeholders. Role of the VLL Not-For-Profit The role of this organisation is to negotiate and/or purchase the contents and services needed by the Virtual Law Library. This organisation would choose the physical home for the VLL as well as the agents of day to day operation and the technological environment. The organisation could maintain its own staff or contract out tasks to other stakeholders including commercial publishers. The not-for-profit organisation is the operating agent of the law societies, but is free to find any means possible (and approved by the board) to bring the VLL into being. A not-for-profit model expands the role of the VLL organisation. Because it is not for profit, it can engage in a variety of fund raising and activities which support the VLL. It can also develop relationships with publishers that may generate revenue and it can create educational foundations which may pursue the use of funds for directed research. This organisation could choose to house the VLL with a university, a private sector firm, or whatever environment proved suitable, bearing in mind the need to develop a secure, long standing organisation with the ability to continue the VLL long into the future. Funding and Revenue Funding would come from the individual members of the law societies but because of the not-forprofit nature of this entity it would likely be in a position to seek additional dollars from other sources. Other sources would include government funders such as the Department of Justice, the Research Councils or Canarie, as well as non-governmental sources such as the law foundations, the CBA, private non-law-oriented foundations and donors. The not-for-profit may be in a position to provide some tax incentives or shared research credits for funding directed to continuing legal and public education activities. Organisational Requirements The organisational requirements are similar to Option 1 above because negotiations will take place between this VLL not-for-profit and commercial publishers, information providers, and law schools, law societies, etc. Thus a strong individual is needed to lead this organisation and some form of secretariat. The Handling of Primary Materials Under the Not for Profit option, the VLL organisation would choose one or more suppliers to handle the primary materials and establish a contract with the supplier(s). A supplier could be one or more law libraries, a law society, a commercial publisher, one or more universities or some combination of these suppliers. More than one handler of materials would likely be contracted in order to allow the suppliers to backup each other. The standards and methods to be used by the VLL would be based upon advice from national standards committees, the law librarians and law societies in private practice and in universities. Suppliers would be required to follow these standards and practices. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 29 Governance The governance would again be through a board established by the societies and would likely contain members representing both users and information suppliers. Option 5 The Institute Option A university-based or legal-information-institute-based approach This is the model used primarily by AustLII and Cornell virtual law libraries. To recognize the uniqueness of Canada as well as the need to distribute workload, the VLL should be a creation of not one but potentially 3 law schools within 3 different universities. Likely one in Quebec, one in Ontario and one in the West, with the potential for an eastern school to be determined. Each school would maintain a specialisation in some way related to the VLL. For example, one law school could be charged with the issues of legal information technology, another with public access and education, and another with continuing legal education. The technology site could house the VLL and be the operations environment but could generate cross-school work for the other sites to make use of student and faculty resources where desirable. Alternately, sites might specialise in some facet of law that took advantage of the existence of the VLL. To the extent possible and negotiable with the law schools a chair in the particular legal specialisation might be established at one or more of these universities. A chair could even rotate every so many years. This centres of excellence approach ensures that there is an individual in more than one location who can take on the responsibilities of managing and growing the VLL in the event that one or more others leave. In addition, a university chair would foster research activity and programs in some way related to improving the VLL and the use of legal information by the profession. The choice of a location for one or more partially or wholly funded chairs could be based upon an open ‘competition’ among law schools. The competition would determine which would provide the best setting, i.e., which university had the requisite experience, which was prepared to assist with funding the chair, which was prepared to house and has the resources to house and maintain the VLL, etc. Universities would be chosen partly on the basis of their experience, capability and willingness to take on handling of the primary materials and their commitment to work in concert with other university centres. Funding and Revenue The VLL as a multi-university institute would receive funding from the members of the law societies. The VLL would seek additional funding for VLL related projects from traditional research funding sources such as the law foundations, the Departments of Justice, the CBA, the Research Councils, and private foundations and donors. Under this approach there would be no direct private sector involvement in the library or in its funding except for special projects that might be undertaken between publishers and an independent VLL or host law school. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 30 Organisational Requirements Under the option of an institute spread across three universities, the universities would share in the operational and intellectual tasks required to bring the VLL into being and maintain it over time. The institute would be run by a society-hired president who exercised the will of the board and reported to it. The individuals who were given the ‘chair’ within the law school would be directors of the Institute but these individuals would report to the society president and the board appointed by the law societies. The Handling of Primary Materials Under the institute option one or more of the sites chosen as university homes for the VLL would undertake the handling of legal materials, at least the final preparation for mounting on the Internet. The potential also exists in this option for the law libraries and societies to take on the intermediate role on a fee for service basis if there is interest and capability. Governance There is essentially nothing in this model to ‘own’ or in which to have ‘equity’ except possibly the intellectual property (e.g., software) that might be created with special funds provided by the law societies and other funders. The institute becomes a creature of the law societies hosted at a university and may be governed by a board but is not owned by that board or its member constituencies. The board could add, jettison, or modify its university affiliations as time and situation demanded and with approval of the board. Again, the board would need to have broad representation from academic, library, and practitioner legal agencies and likely organisations including the law societies, CALL, the CBA, etc. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 31 Review of the Options Option 1. Partner with a Publisher Advantages A publisher would have existing historical data, editors, existing software and procedures, trained staff, an organized Internet presence, existing relationships with federal and provincial legislation providers and the courts. The publisher may already have the confidence of the legal profession; Disadvantages Basic conflict between the partner’s profit motive and the free access to legal professionals required by the societies; Any partner financial problems likely impact the VLL operations; Failure of the partnership requires complicated agreements to guarantee access to existing and historical data; Management of the partner requires ongoing diligence and resources; Likely identifies the VLL with the publisher and not necessarily the law societies and may not be seen as a law society benefit by many; Major negotiations required which may not succeed; Likely the option with the least control vested in the societies because of the dependence upon a private sector partner; - - - - 2. Purchase a Publisher - As above: Brings control of the publisher back to the societies and eliminates worry about partner wandering or dissolving the business relationship; Brings some potential revenue to assist the development of the VLL; Likely enables the VLL to become active quickly; - The initial outlay is a multi-million dollar one. The societies would now be responsible for two businesses, the secondary materials business and the primary materials business; The societies may not be well equipped to take on the running of a full fledged business; - - Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 32 3. Become a Publisher - No encumbrance with existing publishers; Complete control over the nature of the enterprise; Reduced need for profit if societies are prepared to fund this option, therefore may have a lower cost than purchasing or partnering with a publisher; - Poor differentiation between the VLL and other publishers; Large startup costs; Long recruiting and business building time frame; Difficult to compete against existing publishers on their terms given the agreements and revenue streams they may have in place; 4. Not-for-Profit Option - Potential tax advantages (TBD) Adaptable organization which can use a variety of service providers to bring the VLL into being; May be able to attract additional research or other dollars because of non profit environment; - The exact path to be taken to create the VLL is not laid out clearly for the not-for-profit organization; The costs of services may well be high because of the need to go to the marketplace and potentially pay commercial rates or close to commercial rates. - - 5. Institute Option - Institutionalizes the VLL and provides a broad-based support constituency across the country; Newly trained lawyers will be well exposed to the VLL; Provides flexibility to change one or more institute member universities over time if need be without damaging the total structure; Keeps governance in the hands of the societies; Has the ability to make use of low cost university resources for some tasks; Could attract research funds because of university association; Government may find this a more suitable holder of an authoritative version of the text of statutes, etc; The institute member universities can be added over time and need not be added all at once; - - University based activities are not always directly relevant to the practicing lawyer or priorities may be different; Requires cooperation of multiple universities with possibly competing agendas; Law societies and universities may both wish to undertake primary materials handling activities; - - - - - Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 33 Revenue Considerations Generating Supporting Revenue There are two forms of funding required to support the digital library – startup dollars and maintenance/operating dollars. A third and a fourth requirement could be added, for dollars going to research and dollars for historical database development. These last two requirements are not discussed here in any detail. Startup Dollar Requirements An estimate for startup funding requirements for the VLL under each option is under consideration. What can be ascertained from other jurisdictions is as follows. Cornell’s virtual law library was commenced with a multi-year grant of $250,000 U.S. per year some eight to ten years ago. It receives continuing grants today as well as research funds and grants from a variety of public and private sources totaling somewhere between 300 and 500 thousand dollars US. It is very careful in determining how far it ventures beyond primary legal materials because most monies are sustaining and not available for development. Australia’s law library, AustLII, receives about $500,000 per annum from a variety of government and public funding sources and is chronically seeking additional funding. A mere guess at this stage, without detailed analysis, and based on our requirements for bilingual materials, as well as our larger geographic distribution compared with Australia, might suggest the following ‘back of the envelope’ calculation. Viz.; that a Canadian virtual law library might require as much as a million dollars per year to sustain, and potentially the same amount to start up over a multi-year start up period. This works out to about $12.50 per active society member in Canada. Potential sources for startup funding would appear to be: 1. 2. The 14 Canadian Law Societies The Federal Government ♦ ♦ ♦ 3. 4. 5. 6. 7. Justice Canada Industry Canada Attorney General Provincial Governments University Law Libraries Several Publishers or a Single Partner Publisher The Law Foundations Private educational foundations or donors A decision on the source of startup funding is crucial for the VLL. The dichotomy is whether to seek substantial government funding or to reject this option in favour of funding from more direct legal profession interests – i.e. lawyers, law societies, law foundations, etc. The alternative may exist for the law societies to fund the entire VLL and ensure that it serves the direct interests of its members. While all funding is in some senses contingent upon performance, the VLL needs some Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 34 form of long term funding commitment in order to have the viability necessary to be treated as the central source of this kind of information by the legal profession. Ongoing Revenue Requirements There will be an annual cost for the VLL, which provides for its day to day operations. Added to this will be special project costs and costs for developing historical data unless some arrangement is concluded with existing holders of historical data. Ongoing maintenance costs are currently being estimated but have been only crudely discussed above. Likely sources for ongoing revenue generation would appear to include all of the initial sources as well as organisations with grant and research programs which allow activities of the VLL to seek one-time or special project funding. Examples include, the CBA programs geared to education and the law and Research Council grants for academic oriented legal research. While these would not necessarily represent a large funding pool they provide a necessary churn of ideas, visibility, and special projects related to improving and expanding the library. Experience in other countries suggests that a broad-based funding model, like a diversified portfolio, has much better long-term staying power. The general attitude found during interviews with a variety of stakeholders favours a highly open and publicly accessible virtual law library which is paid for principally by law society members. This does not, however totally eliminate the potential for the VLL to generate modest revenue from regular library services. From what has been related during interviews and experiences of other countries it would appear that there is an insignificant amount of revenue currently being generated by law societies, law libraries, courts, or governments through the sale of digital data via the Internet or packaged on CD media. In some cases providers appear to be wondering whether the charges for packaging decisions or statutes are worth the effort of collecting and billing. If this is a realistic assessment of the potential for revenue generation by the VLL then it should not be regarded as a means of funding the operational requirements. Ongoing Roles of the Law Societies and the FLSC The FLSC and the thirteen law societies provide not only the catalyst for the creation of the Virtual Law Library but must become its champions as well. The societies must be able to justify the costs and the effort involved to the membership. Furthermore, the societies must be convinced that this is to be a continuing and successful venture, not one which will collapse and leave the societies with a legacy of having spent substantial amounts of member dollars. To the extent that the law societies have a direct hand in the operation of law libraries in their jurisdictions the societies would need to work with the VLL in the very early stages. Together the VLL, the societies, and the associated law libraries should determine what if any role the local libraries could play in the information supply line and competency of legal professionals. This issue of any related costs and potential lost revenue from existing activities and arrangements with publishers or information providers must be dealt with at the same time. Under one model discussed in this document the law societies might receive a percentage of the monies collected for the Virtual Law Library in return for materials preparation. These funds would be used as a fee paid to those law societies and libraries converting judgments or rulings to databases which can be loaded to the VLL (and to the law society site as well). Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 35 Where law societies are publishing monthly jurisdictional reports of new case law the print costs for this service are rising. By allowing the materials to be posted on the VLL the opportunity is there to generate revenue from the work of preparing the materials for digital loading and for lessening costs for print. Law societies with web sites can show the materials on their sites as well as the VLL if desired. Furthermore, author credit for preparation of the materials can be displayed to the law societies when users access the information through the VLL. At a time when societies decide not to print reports but to release them in digital format, notices, advertisements, etc., that are normally found within the reports can still appear on the law society’s web site or if the society has no site, the VLL would likely be in a position to offer a small society site for that jurisdiction. Paid advertising and notices could be accommodated for the society’s site. For some societies the maintenance of a website may be such that it is preferable to allow the VLL to post the case law and to provide the jurisdiction with a related website of its own. At this time, it is worth noting the form of access to statutes and laws in Quebec. In Quebec, a Crown corporation known as SOQUIJ (Société québecoise d'information juridique) was created in 1974. This was undertaken with the agreement of the Quebec government and the legal community. Thus in Quebec clerks of the courts send a copy of every judicial decision to SOQUIJ. SOQUIJ in return decides which judicial decisions to publish and has an effective monopoly to do so. However anyone can obtain a copy of the decisions at a per-page-copying price – which some regard as excessive according to some interview respondents. Clearly this is a repository of primary legal materials and the VLL and the societies need to determine with SOQUIJ and the Quebec information providers if there is a working arrangement under which they can cooperate. Cooperatively Law Societies may be able to bring these decisions to the Virtual Library screen, and do so in a bilingual format where required and appropriate. Concluding Remarks The conclusion of this document and the Whitehorse meetings is that some combination of the University Institute option and the Not For Profit option has enormous staying power because it institutionalizes the VLL and optimizes open access. It is weighted strongly to the education environment and strong control must be exercised by the law societies through the governance body. This would appear to be the option with the greatest potential to realize the public good and free access goals of the VLL. Furthermore it is likely to be the environment where the greatest affinity with libraries and legal information technology research is to be undertaken. Both an upside and a downside exist in that it is likely that in this environment less concern will be given to the business side of the equation. Thus it is absolutely essential to have a strong board with a society President and with business representation to ensure that the goals of the profession are met as well as those of academia and the public. This option seems to achievable, cost effective, has current models to follow, and there are some obvious starting points in at least two Canadian universities. It is not likely a coincidence that both AustLII and Cornell virtual law libraries have chosen similar forms of being. There is nothing, however that suggests that this is the right and only approach for Canada. The ‘top ten list’ for the role of the VLL. 1. To provide the country’s primary legal materials online to all Canadians; Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 36 2. To set or observe world level standards for legal information organisation and storage for these materials; To provide the technology needed to make the VLL function as the foremost site for primary legal information retrieval; To provide world class quality access to and security for these materials for search and retrieval for citation for download for research To provide law libraries with the support needed to assist in the application of standards and the securing of judgements, rulings, etc. in their respective jurisdictions; To work with publishers, libraries, and others to secure the historical record of Canada’s statutes and case law; To provide a central stimulus and repository for research into the use and organisation of legal information and research results related to the use of information technology in law; and, to provide a centralized focus on research related to the use of information technology in law. 3. 4. 5. 6. 7. 8. To assist where possible in the development of VLL-related materials or systems which provide an input into the continuing legal education role of the societies and related organisations. To assist where possible in the development of VLL-related materials which provide value to the profession and further the education of the public in the comprehension and use of law related information; To find the means to integrate with law libraries, law societies, law schools, the judiciary and the executive in way which creates a seamless-like process of bringing forward to all Canadians the law and the judgments exercised within it. 9. 10. The FLSC and many of the stakeholders supporting the Virtual Law Library all have their own existing challenges and opportunities on a day to day basis. For the VLL to become a reality there needs to be a committed team of individuals (some will need to be paid) who are committed to making the VLL a concrete entity. For lack of a better phrase, this team will be referred to as the Planning Team. It is suggested that a small cadre of individuals (+/- 8) be identified, solicited, and charged with the task of bringing back a detailed implementation plan and preliminary funding commitments for the Virtual Law Library. Some one individual will be required to manage this effort and ensure that the others are recruited, that communication is continual, and a plan is detailed and executed. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 37 The individuals requiring financial support should be provided a budget which permits them expenses and a reasonable stipend. It is late in the process for purely voluntary activities to generate the movement necessary to bring the VLL into existence. Recommendations and Next Steps The National Technology Committee of the Federation of Law Societies of Canada submitted the following recommendations to the Delegates at the 2000 Mid-Winter Meeting of the Federation of Law Societies of Canada, Whitehorse, Yukon. Recommendation 1 THAT the law societies endorse the five point vision of the VLL as set out in the ‘What is the Vision’ section above. This sets out the vision as one in which the VLL provides one stop access for lawyers and legal professionals to all primary legal materials in Canada, i.e. laws, regulations, judgments. Some form of public access will also be provided. Secondary materials are to be considered the business of private sector publishers. Recommendation 2 That the law societies endorse Option 5 – the Institute Option – for the structure of the Virtual Law Library. This option is believed to be the option which provides the greatest potential for success, the most robust organization because of its institutional nature, and the most cost effective one. Recommendation 3 THAT a planning team be created by the National Virtual Law Library Group to initiate the VLL project and undertake the necessary detailed planning tasks to move the project forward. (see project team details below) Recommendation 4 THAT the sum of two dollars per society member be dedicated to this project and that these monies be used to fund the planning team including any stipends, contract fees, travel expenses, and presentation costs required, and that these funds be administered by the FLSC. Recommendation 5 THAT if the Law Societies require further approval to adopt recommendation 4, then it is recommended that a special meeting of the delegates be held by conference call in order to assess the financial commitment of the Law Societies. As noted earlier, the Whitehorse meetings concluded that a combination of recommendations 4 and 5 be further refined and pursued. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 38 Update from the 2000 Mid-Winter Meeting The Whitehorse meetings concluded that a combination of recommendations 4 and 5 be further refined and pursued. The following is an excerpt from the draft minutes (minutes will be adopted in August 2000) showing the recommendation as adopted by the Federation's Delegates in Whitehorse: 1. That the law societies endorse the five point vision of the VLL; as set out in the “What is the Vision” section of the Report. 2. That the law societies endorse an institute or not-forprofit organisation for the structure of the virtual law library. 3. That a planning team be created by the National Virtual Law Library Group to initiate the VLL project and undertake the necessary detailed planning tasks to move the project forward. 4. That if the Law Societies require further approval to adopt funding for the library as set out in the Committee’s report, then it is recommended that a special meeting of the delegates be held by conference call in order to assess the financial commitment of the Law Societies. Carried A special conference call of the Federation's Delegates to adopt the funding for the library will be held in April 2000. You can follow the progress of the work of the National Virtual Law Library Group at: http://www.flsc.ca/evolvo/english/committees/technology/technology.htm Next Steps: Create the Planning Team The FLSC committee on the Virtual Library believes that a strong and dedicated team is required to move the VLL forward. The initial steps in planning for the Virtual Library and negotiating with each and every jurisdiction will be prolonged and receive short shrift if the society is forced to rely upon volunteer labour. Most society members have a full agenda already. The proposed planning would consist of numerous individuals with different expertise, abilities, contacts, experience, and status within or related to the law in Canada. Representation would be drawn from members of the law societies, law librarians, professional lawyers and judges, systems experts, law school deans, professional managers and consultants, etc. Where the committee lacked expertise it would contract the appropriate individuals or firms. The planning team would work under the auspices of the FLSC and would be charged with bringing back to the FLSC and the law societies, a blueprint for the actual structure, costs, and relationships required to make the VLL a reality. The team would work from approximately March 1 to August 31, i.e. 6 months, and would present its results at the August Annual Meeting of the Federation in Halifax. At that time, it would be expected that the Law Societies would undertake a process to make a go/no go decision on the Virtual Law Library. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 39 The planning team members would include a part time manager who would coordinate the efforts of all involved and would ensure in concert with the FLSC and the law societies that the team was quickly recruited and brought in its work on time and on budget. The FLSC office in Montreal would provide logistical support to the team and the Executive Director would be an ex-officio member of the team. The dollars contributed by the law societies would be used to provide the following information and plans back to the societies. The key tasks of the planning team: Establish a prototype VLL for testing and demonstration purposes 1. Work with existing legal sites and universities to develop a simple prototype which can be put in place quickly and which can be used to inform and educate others about the project as well as provide examples of progress in achieving results. Detail the Nature and Structure of the VLL Institute 1. Provide a blueprint for the VLL institute which sets out its organizational structure including the skills needed within the institute. Propose a management structure and governance structure (a board) including individual members for the institute. Set out the institute’s responsibilities and terms of reference: Determine the requirements needed for a university to become one of the locations of the institute. Work with the universities and the law societies and potential funding sources, e.g. the foundations to determine the costs, viability, and parameters under which a university chair concept could be brought into being. Expand the vision for the VLL to encompass a 5 - 10 year horizon. Generate a detailed budget estimate for a 5 - 10 year time frame for the VLL. Determine how the ownership/governance of the institute will be codified. Define the issues surrounding risk for the VLL – liability related to errors, publishing materials that were provided but were prohibited or excluded from publication; electronic transfer errors; formatting and translation errors; errors of omission or juxtaposition, etc. 2. 3. 4. 5. 6. 7. 8. 9. 10. Work with the law societies, the FLSC and others to determine membership on the governing board as well as the terms of reference for the board and the institute. 11. Propose the funding model for the VLL as blueprinted by the planning team. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 40 Gain Support and Develop Relationships 1. Meet with all law societies, federal and provincial government stakeholders, the CBA, CALL, and others to promote the VLL and to define the roles of all concerned. Negotiate with SOQUIJ or the Quebec information providers to determine if and how access to their materials can be obtained. Determine what partnerships or relationships might be useful to or strengthen the VLL, e.g. ACJNet, the Canadian Forum on Civil Justice, Lexum, etc. Determine, possibly through a combined Request for Information and negotiation process whether vendors are prepared to provide the VLL with historical materials and under what conditions. Meet with the publishers to determine the impact of the VLL and ensure that there is a positive relationship between publishers and the VLL 2. 3. 4. 5. Propose Solutions/Approaches to Technical/Standards Issues 1. Determine what historical information can be recreated from existing government and court holdings and the cost of doing so. Develop a plan and methodology under which VLL can ensure that its materials will be authentic and authoritative. Propose a standard markup language and procedure to be used within the VLL. Negotiate with the courts to see if they will accept the form of authentication that the VLL can technically provide. 2. 3. 4. Set out Drafts of Major Operational Procedures 1. Meet with each publishing source for primary materials (each jurisdiction and legislative organization) and determine how information might flow to the VLL from each. In addition, attempt to secure letters of commitment or intent with respect to supplying primary materials to the VLL. Determine how to handle the translation of certain materials. Propose an approach to dealing with citations including the potential for automatic generation of citations within the VLL. Define the detailed specification for the search engine/browser to be used by the VLL. This includes not only the search capabilities but also the display and cross-indexing of information retrieved by the search engine(s). Determine if there is a reasonable methodology and cost for the use of authentication ‘watermarks’ and digital certification of authenticity. 2. 3. 4. 5. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 41 Structure of the Planning Team Law Societies FLSC Virtual Law Library Committee FLSC Secretariat (provides logistic services) Team Manager (part time - paid) Time commitments of individuals from law libraries and law societies to become part of the planning team PLANNING TEAM MEMBERS 5-8 Subject and Function Consultants as required (some paid, possible seconded, possibly volunteer) Law School Issues Law Library Issues Federal and provincial government Issues Technology Issues Publisher and other stakeholder issues Organisational Issues Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 42 Final Remarks The seekers of the treasure of Sierra Madre had deserts and mountains to overcome in search of mythical treasure. The difference in the case of the Virtual Law Library is that the treasure of the Virtual Law Library is indeed within our reach. There are ample examples of why a Virtual Law Library is necessary, what it looks like, who might use it and how it might be put together. The desert and mountains in front of us are far less daunting that those seeking the Sierra’s treasure. Law Societies need to make the next step in the journey which should help them secure the long-term resources and commitments they need to move into action. This takes only the will of the law societies and an investment of seed funds to get them to the point where the map to the library ‘treasure’ is clear. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 43 Appendix 1 Canadian law (primary materials) currently available on the Internet This is a listing of Canadian primary materials on the Internet compiled by Susan Baer of the Saskatchewan Law Library. Case Law The following courts have their judgments available on court web sites. On each web site, the arrangement is different. Some are listings of judgments with links to full text, some have search engines, and some are available in a variety of download formats. In essence, there is no standard format for loading the judgments, nor is there a standard format for viewing, downloading or searching. Supreme Court of Canada Federal Court of Canada Alberta - Court of Appeal, Court of Queen's Bench and Provincial Court British Columbia – Court of Appeal and Supreme Court Northwest Territories - a digest database for locating cases Ontario - Court of Appeal Prince Edward Island Supreme Court, Appeal and Trial Division Saskatchewan - available as part of membership in the Law Society or on a subscription basis http://www.droit.umontreal.ca/doc/cscscc/en/index.html http://www.fja.gc.ca/en/cf/index.html http://www.albertacourts.ab.ca/ http://www.courts.gov.bc.ca/ http://www.andornot.com/nwt/search.htm http://www.ontariocourts.on.ca/english.htm http://www.gov.pe.ca/courts/ http://www.lawsociety.sk.ca Statutes ACJNet (Access to Justice Network) which provides the umbrella site for the federal and provincial/territorial statutes began as a federal government initiative. The project began with federal statutes and grew as legislative documents were completed in some word-processed format. Each jurisdiction was responsible for creating its own documents, with no set of standards for creation other than standard rules for drafting legislation. There is a certain degree of “standardization” in a statute in terms of the sections to expect and the format. However, there was no standardization for the electronic preparation of the legislation across the country, which should have included such elements as software used to produce, whether columnized text is used to create the bilingual side-by-side version or if the languages were split into separate files. There simply was no funding for creating the source documents and due to the expense for each jurisdiction, converting to a different software package would have been a great financial burden and a strain on already stretched manpower resources. The result is that jurisdictions make their 1 1 http://www.acjnet.org/ Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 44 statutes available on the Internet under the ACJNet site in a wide variety of display, searching or non-searching options. Also, not every jurisdiction has their statutes and regulations on the ACJNet site, either due to political reasons or because they are not electronically ready to do so. It must be pointed out that even though statutes are on the Internet and searchable using Folio software, the commands used in each service can be different. Consistency in searching the statute databases (or others) does not exist, even though the same search engine is being used. It really depends on how the originator structured their InfoBase and the attributes for their InfoBase. For example, the Yukon and British Columbia both have their statutes available for searching in Folios formats. However, a search for child support is handled differently. The space between two terms in the BC statutes searches the two words as a phrase (child support), while in the Yukon statutes the space is translated as a Boolean AND, i.e. child AND support. It therefore picks up any occurrence of "child" and any occurrence of "support" in a document, but not necessarily beside each other. Federal http://canada.justice.go.ca/Loireg/in dex_en.html Alberta http://www.gov.ab.ca/qp/laws.html British Columbia http://www.legis.gov.bc.ca Manitoba http://www.gov.mb.ca/chc/statpub/fr ee/index.html New Brunswick http://inter.gov.nb.ca/justice/asrlste. htm Continuing Consolidation of the Statutes of Manitoba to May 1998. More current requires a subscription. Statutes consolidated to Sept 30, 1999 Regulations to Sept 30, 1999 Bilingual Newfoundland http://www.gov.nf.ca/house/Hansard /default.htm Nova Scotia http://www.gov.ns.ca/legi Northwest Territories http://founder.library.ualberta.ca/TN O/index_en.html Statutes consolidated to September 25, 1998. Regulations consolidated to July 9, 1998. No statutes. Hansard available. Statutes & regulations consolidated to December 1, 1998. Searchable, but all may not be included in the search. All statutes not yet available. Alphabetical listings. Searchable. Search engine not known. Free site is alphabetical list only. Paid site uses ISYS. Revised Statutes 1996 consolidated to October 31, 1997. Statutes & regulations consolidated to December 31, 1998. bilingual Statutes & regulations consolidated to January 10, 1999. Arranged alphabetically. Search by paid subscription also. Uses Folio. Current statutes not available. Uses Folio Views. Other parts such as Gazettes are not searchable. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 45 Nunavut Statutes & regulations http://pooka.nunanet.com/~n cjlib/legislation.htm Ontario http://www.attorneygeneral.jus.gov. on.ca/legis.htm Prince Edward Island http://www.gov.pe.ca/leg/index.asp Quebec http://www.droit.umontreal.ca/doc/c cq/en/index.html Saskatchewan http://www.legassembly.sk.ca/legass embly/docs/docs.htm Yukon http://founder.library.ualberta.ca/Yu kon/index_en.html Statutes & regulations consolidated to January 1, 1998. Uses Folio. No statutes. Hansard available. Civil code site. Hansard is searchable. Searchable using NQL. Statutes and regulations not available on ACJNet. Hansard. Consolidated statutes 1986 - 1990, annual volumes 1991 – 1997. Regulations to 1997. Searchable by paid subscription only through Queen's Printer. Uses Folio. Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 46 Appendix 2 Members of the National Virtual Law Library Group (as at February 2000) The National Virtual Law Library Group is a group of the National Technology Committee of the Federation of Law Societies of Canada. The National Technology Committee has four Working Group: National PKI Group, National Infrastructure Group, National Virtual Library Group and the National Ethics Group. Chair / Président Abraham Feinstein, Q.C. Vice-President, Federation Soloway, Wright #900 - 427 Laurier Ave W. Ottawa, ON K1R 7Y2 Tel: (613) 236-0111 Fax: (613) 238-8507 feinstea@soloway.com Law Society of Saskatchewan Susan Baer Director of Libraries Law Society of Saskatchewan Libraries 2425 Victoria Ave Regina, SK S4P 3M3 Tel: (306) 569-8020 Fax: (306) 569-0155 sbaer@lawsociety.sk.ca Law Society of Upper Canada Janine Miller Chief Librarian Law Society of Upper Canada 130 Queen Street West Toronto, ON M5H 2N6 Tel: (416) 947-3438 Fax: (416) 869-0331 jmiller@lsuc.on.ca Law Society of Yukon Steven A. Horn Chief Legislative Counsel Yukon Justice Box 2703 (J-2) Whitehorse, YT Y1A 2C6 Tel: (867)667-5776 Fax: (867)393-6379 steven.horn@gov.yk.ca Law Society of Manitoba Allan P. Fineblit, Q.C. Chief Executive Officer The Law Society of Manitoba 219 Kennedy Street Winnipeg, MB R3C 1S8 Tel: (204) 942-5571 Fax: (204) 956-0624 afineblit@lawsociety.mb.ca Barreau du Québec Thérèse Perreault Barreau du Québec 445, boul. Saint-Laurent Montréal, QC H2Y 3T8 Tel: (514) 954-3424 Fax: (514) 954-3463 tperreault@barreau.qc.ca Commissioner for Federal Judicial Affairs André Garreau Director General - Policy And Corporate Services Commissioner For Federal Judicial Affairs 99 Metcalfe Street Ottawa, ON K1A 1E3 Tel: (613) 992-2930 Fax: (613) 995 5615 agareau@cmf.gc.ca Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 47 CRDP, Université de Montréal Daniel Poulin, Professeur Université de Montréal Faculté de droit 3101 Chemin de la tour Bureau 8446 Montréal, QC H3T 1N8 Tel: (514) 343-2139 Fax: (514) 343-7508 poulind@DROIT.UMontreal.CA Department of Justice Canada Pam Owen-Going Counsel and Project Manager CDS/Legal Operations Sector Department of Justice 284 Wellington street, Room 1155 EMB Ottawa, Ontario K1A 0H8 Tel: (613) 954-6612 Fax: (613) 946-3866 pam.owen-going@justice.gc.ca C:\Dat\DATA-DB\Tech - VL\BusinessPlanFinalMarch2000.doc Toward a Business Plan for a Canadian Virtual Law Library, March 2000 page 48