Enabling Free On-line Access to UK Law Reports: The Copyright Problem

The history of publishing legal decisions (law reporting) in the UK has been that of a privatised system since its inception, and that history has encompassed several hundred years. The privatised nature of this has meant that the product (the law report) has been, except in limited cases, viewed as the property of the publisher, rather than the property of the court or public. BAILII is an open access legal database that came about in part because of the copyrighted, privatised nature of this legal information. In this paper, we will outline the problem of access to pre-2000 judgments in the UK and consider whether there are legal or other remedies which might enable BAILII to both develop a richer historic database and also to work in harmony, rather than in competition, with legal publishers. We argue that public access to case law is an essential requirement in a democratic common law system, and that BAILII should be seen as a potential step towards a National Law Library.

Article 6 ECHR, Civil Rights and the Enduring Role of the Common Law

This article examines the role that the common law has played in Human Rights Act 1998 case law on the protection of 'civil rights' within the meaning of Article 6 ECHR. Focusing on Article 6 ECHR's 'disclosure' and 'full jurisdiction' requirements, it highlights an increasingly nuanced relationship between the ECHR and common law in cases under and outside the Human Rights Act 1998. Although the general pattern within the case law has been one of domestic court fidelity to the ECHR - something that is wholly consistent with section 2 of the Human Rights Act 1998 - the article notes areas in which the courts have been reluctant to adapt common law principles, as well as instances of common law protections exceeding those available under Article 6 ECHR. The article suggests that such lines of reasoning reveal a robustness within the common law that brings a multi-dimensional quality to the Human Rights Act 1998. It also suggests that such robustness can be analysed with reference to 'common law constitutionalism' and a corresponding imagery of 'dialogue' between the domestic courts and European Court of Human Rights.

Repeal the HRA and Rely on the Common Law?

This piece contemplates whether the common law could fill the gaps in human rights protection if the UK's Human Rights Act 1998 were to be repealed. It looks at how the common law protected human rights before the Act came into force, what difference the Act has made, how the common law has become side-lined as a result, how in recent cases it has begun to play a more central role, and what more more needs to be done to develop it in ways which ensure that if the Human Rights Act were to be repealed it would not be particularly missed.

What is the Point of Copyright History?:Reflections on Copyright at Common law in 1774 by H. Tomás Gómez-Arostegui

Copyright history has long been a subject of intense and contested enquiry. Historical narratives about the early development of copyright were first prominently mobilised in eighteenth century British legal discourse, during the so-called Battle of the Booksellers between Scottish and London publishers. The two landmark copyright decisions of that time – Millar v. Taylor (1769) and Donaldson v. Becket (1774) – continue to provoke debate today. The orthodox reading of Millar and Donaldson presents copyright as a natural proprietary right at common law inherent in authors. Revisionist accounts dispute that traditional analysis. These conflicting perspectives have, once again, become the subject of critical scrutiny with the publication of Copyright at Common Law in 1774 by Prof Tomas Gomez-Arostegui in 2014, in the Connecticut Law Review ((2014) 47 Conn. L. Rev. 1) and as a CREATe Working Paper (No. 2014/16, 3 November 2014).

Taking Prof Gomez-Arostegui’s extraordinary work in this area as a point of departure, Dr Elena Cooper and Professor Ronan Deazley (then both academics at CREATe) organised an event, held at the University of Glasgow on 26th and 27th March 2015, to consider the interplay between copyright history and contemporary copyright policy. Is Donaldson still relevant, and, if so, why? What justificatory goals are served by historical investigation, and what might be learned from the history of the history of copyright? Does the study of copyright history still have any currency within an evidence-based policy context that is increasingly preoccupied with economic impact analysis?

This paper provides a lasting record of these discussions, including an editorial introduction, written comments by each of the panelists and Prof. Gomez-Arostegui and an edited transcript of the Symposium debate.

Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title

This paper explores the law of accidental mixtures of goods. It traces the development of the English rules on mixture from the seminal nineteenth century case of Spence v Union Marine Insurance Co to the present day, and compares their responses to those given by the Roman law, which always has been claimed as an influence on our jurisprudence in this area. It is argued that the different answers given by English and Roman law to essentially the same problems of title result from the differing bases of these legal systems. Roman a priori theory is contrasted with the more practical reasoning of the common law, and while both sets of rules are judged to be coherent on their own terms, it is suggested that the difference between them is reflective of a more general philosophical disagreement about the proper functioning of a legal system, and the relative importance of theoretical and pragmatic considerations.

Jamming the Law: Improvisational Theatre and the 'Spontaneity' of Judgment

Modern ‘nonscripted’ theatre (NST) clearly owes much to improvisation. Perhaps less obviously, and more surprisingly, so too does modern law. In this article I will contend that, despite all the rules of evidence and procedure, statutes and legal precedents that fundamentally govern the decisions and actions of a judge, it is only through ‘spontaneity’ that judgment can take place. This claim may appear strange to those well-versed in the common law tradition which proceeds on the basis of past legal decisions, or reason where no precedent exists. NST, on the other hand, is assumed to rely heavily on the unprecedented and unreasoned. Therefore, when the public watches a NST production, it places its faith in the belief that what is being observed is entirely new and is being produced ‘on the spur of the moment’.

New Technology and Researchers’ Access to Court and Tribunal Information: the need for European analysis

We discuss the limitations and rights which may affect the researcher’s access to and use of digital, court and administrative tribunal based information. We suggest that there is a need for a European-wide investigation of the legal framework which affects the researcher who might wish to utilise this form of information. A European-wide context is required because much of the relevant law is European rather than national, but much of the constraints are cultural. It is our thesis that research improves understanding and then improves practice as that understanding becomes part of public debate. If it is difficult to undertake research, then public debate about the court system – its effectiveness, its biases, its strengths – becomes constrained. Access to court records is currently determined on a discretionary basis or on the basis of interpretation of rules of the court where these are challenged in legal proceedings. Anecdotal evidence would suggest that there are significant variations in the extent to which court documents such as pleadings, transcripts, affidavits etc are made generally accessible under court rules or as a result of litigation in different jurisdictions or, indeed, in different courts in the same jurisdiction. Such a lack of clarity can only encourage a chilling of what might otherwise be valuable research. Courts are not, of course, democratic bodies. However, they are part of a democratic system and should, we suggest – both for the public benefit and for their proper operation – be accessible and criticisable by the independent researcher. The extent to which the independent researcher is enabled access is the subject of this article. The rights of access for researchers and the public have been examined in other common law countries but not, to date, in the UK or Europe.