With Delia Venables
In one of our CPD courses last year, in a chapter on access to law, we stated that “There is some argument whether judges are public servants or not and hence whether their judgments are public sector information or not. In addition, regarding older judgments, the low level of originality required for copyright protection in the UK means that almost all older cases are copyright of either the transcriber or the reporter (or the publisher who commissioned them).”
As part of the questions relating to the course we asked “Who owns copyright in judgments in the UK? What are you views on this?” Below are edited versions of some of the answers received which reflect the variety of opinion on the issue and how it should be addressed.
My view is that copyright should not exist at all in judgments in whatever format they are recorded, as this seems to be contrary to the workings of a legal system based on legal precedent.
Joe Delaney, Three New Square
There is a vexing question with regard to newer judgments as the question arises because judges are public servants so their judgments might be public sector information. I agree with this theory, namely, that the judges are paid through the public purse and are civil servants so their work (the judgements) belong to the public.
Alana Graham, 9 Stone Buildings
This is of concern as it means that the right to access such case law is not clear; achieving a balance between access and privacy is not straightforward.
Michaela Neufeld, Barristerweb
The present situation is unsatisfactory. The reality is that judgments are in the public domain and freely available without so far as I know any claim for breach of copyright arising from any source. It never occurred to me to ask who has the copyright in, for example, a birth certificate!
Anthony Smith QC, No 5 Chambers, Birmingham
It is a profoundly unsatisfactory state of affairs, if nothing else because of the constitutional significance of judgments in a common law jurisdiction (and a typical piece of English confusion, somewhere between an almighty cock-up and a rather charming old tradition).
Michael Lane, East Anglian Chambers
In principle, original copyright should rest with the crown which, in a sense, commissions legislation and judgments. Moreover, the Crown, as part of government, is duty bound to provide clear law and access to clear law – in keeping with its obligations under the European Convention on Human Rights and also as a primary function of government. The law must be accessible for everyone, and given that some are poor, it is unacceptable that access to statute or case law should cost money. That is not to say that authors or service providers may not add value by way of analysis or analytical tools. However, the source material should be free.
Michael Swainston QC, Brick Court Chambers
It is highly unsatisfactory that copyright can be asserted by transcribers etc. There ought to be a public policy based exception for judgments.
Adam Fenton QC, 7 King’s Bench Walk
Judgments are public documents of no little importance. Habitually, judgments are handed down in writing (so there is not even any transcribing as such to do). Access to justice demands that judgments should be readily available to all at no cost. One of the pressing issues for practitioners and access to justice more widely is the increasing cost of legal texts and resources. BAILII does fantastic work but needs more funding. Query also whether the Inns of Court and their libraries might be able to co-operate more closely and work with practitioners to make more legal resources available free of charge to practitioners and the public.
Graham Chapman, 4 New Square
As long as the Government of the day is interested in open access to justice, crown copyright is not a bar on free access to justice and is the best guarantor of such freedom. If reporters/transcribers have the copyright they may not be willing to allow access other than for a fee, which would limit availability of possibly important primary legal sources to those willing or able to pay which would be an unwelcome bar on free access to justice. Ironically, as the mass of information freely available becomes greater, it is arguable that the need for a skilled lawyer to make some sense of it can in some cases be just as great as when much less material was available. Cutting through the sheer bulk to identify the relevant from the irrelevant can be no easy task and would always be aided by a specialist practitioner text which is invariably not going to be free. That is not to decry free access to justice, essential in any civilised society, but merely to point out that free access to primary sources may take matters only so far in complex areas.
Michael Pryor, Maitland Chambers
Ownership of copyright is unclear – copyright in the judgment itself is thought to vest in the Judge (thus, arguably, the public – not that any such argument would be likely to arise as between Judge and government), whereas copyright in the law report or transcription of an oral judgment is asserted to vest in the reporter/transcriber or commissioning publisher (in relation to most older cases and more recent cases not marked “Crown copyright”). My own view is that copyright vests in the Judge and (therefore) that all judgments, save where prohibited from publication in whole or part by Court order, should be freely accessible to all.
Louise Randall, Keating Chambers
In my view, there clearly is or should be Crown copyright in all judgments. However, legal publishers should also have separate copyright in their own arrangements of judgments (providing them with the basic protection needed to make their businesses viable).
Thomas Graham, New Square Chambers
Obviously in a legal system driven by case law it is unacceptable for judgements not to be owned by the state and freely available to all. Getting a judgement from the official transcribers is prohibitively expensive.
Peter Last, Clerksroom
In my view judges (who are paid to produce judgements and receive juicy pensions) should be required to waive any copyright which they may hold. A law should be passed compulsorily acquiring all other copyrights, such acquisition to be financed by a levy (over the next 10 years) on the legal profession. Presumably the cost would not in practice be great as I doubt that copyright holders (apart from ICLR which is in any event a charity) in reality get that much benefit from their copyright.
Michael Kennedy, New Square Chambers
Before the advent of the official law reports in the 1870s, ie for the thousands of cases reported in the English Reports, copyright vested in the reporters because they did not transcribe judgements, but rather created their own original work. Where a judgment is transcribed or handed down in writing, copyright probably vests in the Crown on the basis that judges are public servants. However, copyright in the headnote of a case report in a private series such as All ER probably vests in the publisher, because the headnote is a piece of original work. I do not consider that this presents any problem because I have never heard of anyone claiming infringement of copyright by the photocopying of a law report. There are more important issues to address.
Mark Hapgood QC, Brick Court Chambers
Nick Holmes and Delia Venables are joint editors of the Newsletter.