Re-using case law across Europe: legal barriers to be faced

• Autore: Maria Angela Biasiotti
• Carica: Junior resarcher
• Pagine: 169-192

Maria Angela Biasiotti The Author is a junior resarcher at the Institute for Legal Theory and Techniques of the CNR engaged in the study and analysis of "Advanced tools facilitating the knowledge of law at European Union level". Issues here described have been deeply analysed in a report written by a working group engaged in the development of the Caselex Project (M.A Biasiotti, S. Faro, E. Francesconi, R. Nannucci, L. Serrotti, P. Spinosa and D. Tiscornia).

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@1. Introduction

Caselex is a project financed by the European Commission under the e-Content Program aiming at offering access to case law across European borders facing the difficulties deriving from different legal traditions. Fueled by public funding and through a consortium blending private and public sector parties, CASELEX has created a system offering an Internet based "one-stop-shop" service for important national case law linked to the common denominator of EU law, i.e. decisions of Supreme and High Courts, within selected areas of law connected to the implementation and application of EU law. As such it aims to serve as a European service, accessing and converting the comprehensive base of public case law into easy obtainable and usable knowledge for distribution throughout Europe. For building up Caselex system every strategy and implementation have been chosen according to previous surveys and studies.

Case law is an important source of public sector information (PSI) as output of the judiciary, together with information of governmental bodies, jointly constitute the so-called 'basic information of the democratic constitutional state' and it is generally accepted that these categories of PSI should be more and more accessible and available as wide as possible.

The creation of this type of information is by definition a public task and its wide dissemination serves public interests.

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Caselex has during 2005 and 2006 developed a deep understanding of the key issues surrounding the European service opportunity and associated issues, and in response developed a platform to overcome the practical barriers of establishing a online service that can support and link the vast repository of important case law of national and European courts with European relevance. Facilitating and linking such material, would imply an enormous benefit to the legal community and society at large, in particular practitioners such as courts, law firms and lawyers in need of such knowledge sources in their daily work.

In order to provide added value services related to Case law contents, the Caselex content and knowledge management procedure had to deal with several processes such as acquiring, retrieving, analysing, processing, managing and re-using case law data.

As a result, Caselex had to cope with a very heterogeneous framework which is taken into account in the following analysis and more specifically with technical and legal barriers related to the different sources and the processes involved.

In order to properly discuss and treat legal barriers it is of paramount importance to link their analysis to the descrption of the overall Caselex process and to identify how content features and semantic and linguistic issues constitute barriers hampering project development.

To perform such an assessment, the data management process followed by the Caselex service platform is here after briefly described. This process can be synthesised according to its interaction both with content holders and end-users. In particular the structure of the Caselex data management process can be represented by three main stages: data acquisition, data processing and data access. Whereas:

Data acquisition is the stage describing the process and mechanism for data transfer from local case law content holders to Caselex implying the analysis of the following legal barriers: IPR (Intellectual Property Rights) and Database protection, DRM (Digital Rights Management), Licensing.

Data processing is the stage intended to transform information collected into added value services to end-users. In particular this process implies: the conversion of proprietary format data into data in the Caselex format; adding metadata: (to make information retrieval easier for end-users; and to increase the quality of the information provided.

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These activities imply the analysis of the following legal issue: DPR (Personal Data Protection Rights) as to parties involved in the decision.

Data access is the stage representing the interaction modalities between the Caselex service and end-users. In particular, it takes into account information retrieval and presentation barriers and how to overcome them (e.g. different query languages and heterogeneous devices). This stage implies the analysis of the following issue: DPR as to end-users.

@2. The Caselex domain and data process

The Caselex platform service implies the analysis and proper management of a set of specific issues related both to information communication technology and to the legal and judicial domain. Within this perspective some key factors can be identified.

National and EU Legislation	The Caselex platform is required to comply with EU Member States’ legislation and EU laws on DPR, IPR, DRM, security and access rights.
Multilingual Aspects	In order to ensure wide acceptance and use of the Caselex service, the platform has to assure the proper management of linguistic issues, in terms of multilingual interface, content, access and data management.
Added Value Information	In order to be effective, the Caselex service will provide end-users with the fulltext of a decision plus “added value” information. The added value information should provide different levels of support to document retrieval, such as summary, proper cross-referencing (hyperlinks), categories based on classification schemes, and other different types of metadata.
Technology	Technology – which greatly influences the overall acceptance of the Caselex service – is an important factor to enhance user-friendliness and data security as well as data management inexpensiveness, rapidity and reliability. Since technology is evolving extremely fast, a specifically-oriented technology might become obsolete in a short time. A scalable and expandable service architecture, based on international and open standards, is therefore recommended.

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Interoperability

Interoperability refers to attributes of the software platform that affect its ability to interact with other systems. It makes possible data understanding and exchange among different operators. The use of standards does not on its own ensure interoperability since independent applications may implement different subsets of optional parts of a standard. As a consequence it is very important for Caselex to define different standard solutions for each particular application class (mostly for multi-media devices). Systems are interoperable when they can also execute a common task together, in addition to communicating with each other. This requires additional standards such as APIs (Applications Programme Interface)

Acceptance

In order to be effective, the Caselex initiative needs to be well accepted by all agents involved: public and private institutions and stakeholders. In general, a service is well accepted when it is regularly and at short intervals updated, user-friendly and secure and its content is of high quality

@3. Caselex legal scenario

During the first phase of the Project information was collected from different content holders in EU and EFTA Member States in order to carry out a survey of the current state of art relevant to existing services provided in terms of:

- what kind of content is disseminated;

- how information access is regulated;

- how IPR, database protection and DPR are managed. It resulted that:

- most European countries have not yet transposed the Public Sector Information Directive;

- in about half the countries court decisions are disclosed via a central public organisation, or plans exist to do so, while in the other half disclosure takes place via the courts themselves, or via commercial or semi-commercial organisations;

- most public content holders have no settled standard licence policies;

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- in most "old" Member States, (supreme and constitutional) court decisions are available to the public free of charge, while in most "new" Member States only a limited amount of (supreme and constitutional) court decisions are available to the public free. Apart from the few (supreme and constitutional) court cases available free in the new Member States, all the rest are made available by commercial organisations and are not available free of charge;

- half of the public content holders make no distinction between commercial and non-commercial re-use of court decisions;

- most of the public content holders impose conditions of re-use (citation of the court giving the decision and prohibition on amending the decision);

- in most European countries, there is no copyright on case law (on the other hand, added value, in the form of summaries or translations of court decisions, is usually protected by copyright legislation);

- most public content holders hold database rights (copyright and sui generis) on their case law databases, but do not exercise them. Many of them are not aware of this protection.

@4. Caselex data process workflow

@@4.1 Legal barriers in data acquisition

The data acquisition phase describes issues and possible methodologies for accessing and acquiring data provided by different European case law content holders and populating the Caselex repository. Case law management at European level has to cope with the different sources and legal systems of each country. Referring to this scenario, Caselex had to analyse the services provided by each content holder and consequently take pertinent decisions for...