LAW REPORTING: ANOTHER CASE FOR DEREGULATION
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00849.x |
| Author | Paul von Nessen |
| Date | 01 July 1985 |
| Published date | 01 July 1985 |
LAW REPORTING: ANOTHER CASE FOR
DEREGULATION
ACCURATE, accessible records of judicial pronouncements have
always been important to the proper functioning of the common
law system, valuing as it does adherence to precedent. Although
assured publication of dependable law reports has been successfully
achieved throughout the common law world, the means by which
this has been accomplished in the United Kingdom and in other
English-based systems varies significantly from the method used in
the United States. The right to reproduce the opinion of judges as
well as the right to reproduce statutes is claimed, in most English-
based systems, to belong to the Crown, such claim dating from the
introduction
of
the printing press. In the United States, however,
neither statutes nor judicial opinions are subject to copyright.
Despite directly opposing approaches to regulation of rights to
reproduce judicial opinions, the underlying objectives, articulated
in authority from the United States as well as England, have been
to promote the quick and efficient dissemination of reports which
correctly relay the decisions made, and concurrently to prevent, as
far as possible, the production and use of reports of questionable
quality. Although these two related aims underlie the law of both
Great Britain and the United States relating to the reproduction
rights in judicial opinions, the differing attitudes towards those
rights reflect the different emphasis placed on each objective in the
United States and Britain.
In comparing the justifications for the Crown rights in law
reports (and the related rationale for such rights in statutes) with
the reasons for allowing unlimited access to such items, this article
will attempt to disclose the merits of both approaches in achieving
their stated objectives. A review of the United States authorities is
particularly appropriate in this regard as the cases and statutes
establishing Crown rights in law reports and statutes were part of
the common law of the United States prior to its revolution. As a
result, the English approach was considered by the United States
Supreme Court when it determined that free access to the sources
of law was appropriate.
With the continuing desire for complete and accurate law reports,
it is not surprising that technological advancement and demographic
changes have brought certain strains to law reporting systems
which evolved prior to the twentieth century. The advent of rapid
retrieval, full text computer systems has made the reporting of all
judgments possible. Simultaneously, expanding population and
decreasing reluctance to litigate has resulted in such an increase in
decided cases that, even though computer technology could provide
publication and storage of the entire collection of appellate
412
July
19851
LAW
REPORTING:
CASE
FOR
DEREGULATION
413
judgments in a particular jurisdiction, such indiscriminate publi-
cations cannot be justified. The courts of the United States and
Great Britain have both confronted this problem, but the difficulties
posed by the increased flow
of
judicial authority and new found
capability to reproduce it have not been entirely resolved.
Although contrasting the development of Crown rights in judicial
opinions in the United Kingdom and other Commonwealth countries
with the United States development of judgments being in the
public domain may reveal the merits of each approach, the
consistent provision of quality reports of judicial proceedings under
both systems makes conclusive judgments difficult. A further
comparison of the responses of each system to a common problem,
increased selectivity in publication
of
decisions of appellate courts,
will attempt to expose potential strengths and weaknesses in each
system and to identify considerations relevant to the proper
assessment of any legal or administrative limitations to uncontrolled
public access and review
of
judicial proceedings.
THE
ENGLISH
APPROACH
There
is
still some controversy as to the grounds of the Crown’s
rights in the sources of law and as to its extent. However, today
there can be no question that the Crown, by virtue of its
prerogative, has the exclusive right to print and publish statutes.
As
the nature and extent of the Crown’s rights in the opinions of
the judiciary, however, is still the subject
of
some academic
debate,’ a review
of
the development of the earlier accepted
Crown right in statutes is warranted due to the relevance of many
judicial observations therein to the assertion of Crown rights in
judicial opinions.
Statutory Materials
The rights of the Crown in statutes have been recognised on
numerous occasions.2 This right originated in the practice, predating
the introduction of the printing press in England, of the
dissemination of transcripts of such statutes to the various parts of
the realm by the King. This practice was mentioned in the cases of
~~
See G. Sawer, “Copyright in Reports of Legal proceedings” (1953) 27
A.L.J.
82”
H.
Fox,
“Copyright in Relation to the Crown and Universities with Special Reference to
Canada” (19473
U.
Toronto
L.J.98 (hereafter
“Fox”);
Snow, “Who Owns Copyright in
Law Reports?” (1982)
64
C.P.R.
2d.
49 (hereafter “Snow”);
B.
Tomo,
Crown Copyright
in Canada: A Legacy of Confusion
(Consumer
&
Corp. Affairs, Canada, 1981) (hereafter
“Tomo”); Note, “The Crown and Copyright in Publicly Delivered Judgments” (1982) 56
A.L.J.
326; M. Taggert, “Copyright in Written Reasons for Judgment” (1984) 10
Sydney
L.
Rev.
319; and
C.
Tapper, “Genius and Janus: Information, Technology andlthe Law”,
forthcoming in (1985) 11
Monash L. Rev.
*
Roper
v.
Streater, infra
note 6;
Company of Stationers
v.
Seymour
(1677) 1 Mod. 257;
Company of Stationers
v.
Lee
(1683)
2
Chan. Cas. 76;
Basket
v.
hiversify of Cambridge,
infra
note 3;
Baskert
v.
Cunningham
(1762) 1
BI.
W. 370, 2 Eden 137;
Millar
v.
Taylor,
infra
note 8;
Stationers Company
v.
Carnan
(1775)
2
BI.
W. 1004;
Eyre and Strahan
v.
Carnan, infra
note 4;
Manners
v.
Blair
(1825) 3 Bli.
N.S.
391;
Attorney-General of New
South Wales
v.
Butterworth and Co. (Australia) Lrd.
I19381
S.R.
(N.S.W.)
195.
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