One of the hallmarks of President Barack Obama's administration is transparency and in the short span of a week we have seen him introduce a range of measures designed to introduce a far greater degree of transparency into the US government. Transparency is vital if citizens are to participate meaningfully in government and a society bound by the rule of law. CNN has a report on Obama's clever use of the Web to promote this ideal:

The new White House website is already a powerful tool for transparency. Visitors to the website can view the much publicised executive orders Obama has already issued, including the "Ethics Commitments by Executive Branch Personnel". The Bush administration was characterised, in part, by its secrecy and suspicion of the media. Obama's administration has already indicated that it stands at the other extreme.

The ANC government is hardly the epitome of transparency but South African citizens are also the beneficiaries of a relatively open approach to government content. Visitors to the Government Information portal can access a range of documents (including legislation), speeches and information about our leaders.

This is a welcome beginning but there is still a considerable about of information about and detailing the law that effectively remains under wraps and largely in the hands of private, commercial publishers. Hopefully Obama's example will gain traction here in South Africa as we approach the next general election and with what we hope is a new era of greater transparency, we may even begin to see private claimed legal materials open up more and more.

I had the opportunity to attend the recent iCommons iSummit '08 in Sapporo, Japan as an iCommons staffer. I just came across this video on Heather Ford's blog. Heather was, until recently, iCommons Executive Director and now works with her team at The African Commons Project.

This is a post I submitted to the iCommons site. You can find that version here.

There are a number South African legal resources with varying degrees of accessibility and completeness. On the one hand there are a number of official sources of law and legal information from organs of the State like national, provincial and local legislative bodies as well as the superior courts. Official texts are generally not protected by copyright and are therefore open to all. When it comes to legislation, section 12(8)(a) of the Copyright Act provides as follows:

"No copyright shall subsist in official texts of a legislative, administrative or legal nature, or in official translations of such texts, or in speeches of a political nature or in speeches delivered in the course of legal proceedings, or in news of the day that are mere items of press information."

Where copyright would vest is in unofficial texts created by publishers or any person who takes an official text and reformats that official text or otherwise creates a derivative of it. This is where access to legal resources becomes somewhat more difficult. Commercial republications of the official texts are expensive and quite simply inaccessible to the vast majority of the population. By way of example, costs for a set of legislation can be as high as R4,600 for a monthly subscription on CD-ROM or around R3,200 for the 2006/7 printed edition purchased from one of the local legal publishers. In contrast, legislation is available for free from government websites although these collections are not necessarily complete or readily accessible to a visitor to the website concerned.

Similarly, judgements handed down in South Africa’s superior courts are, in theory, available to the public although this is something of a fiction in practice. These judgements are not published in a convenient format by the courts. The legal publishers, on the other hand, republish judgements considered to be “reportable” and then sell these judgements as part of their law reports incorporating commentary on and summaries of the more pertinent judgements at a high price for most people. While these reports are fairly well organised and comprehensive and are generally available on a subscription basis, a subscription to Juta's South African Law Reports can cost R5,712 for a single user for a year for the online version and R15,112 for a quarterly update and R16,052 for monthly updates to the CD-ROM versions.

Fortunately there are initiatives to make these important legal resources more readily available to the South African public. Perhaps the most ambitious of these initiatives is the South African Legal Information Institute which is collating and scanning judgements and legislation from 16 sub-Saharan countries. This content is being made freely available on the web, at least for non-commercial purposes. Another project which is under development is the Open Law Project which aims to create a comprehensive legal reference work pitched at, and for the benefit of, the South African public. These two initiatives and other similar initiatives are motivated to promote open access to the law by the people who are governed by it.

At present the open law initiatives are slowly gaining on their commercial equivalents and the law is becoming more and more accessible to a broader cross-section of the population. This shift is tremendously important because more meaningful and open access to the law is necessary for the promotion and protection of a number of fundamental rights enshrined in the Bill of Rights which, in turn, shapes the legal, political, social and economic frameworks of South African society and government. To quote the Declaration on Free Access to Law:

“Legal information institutes of the world, meeting in Montreal, declare that:

• Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;

For more information on South African legal resources, where they can be found, and who owns these texts, check out the Open Law Project wiki page . If you would like to participate in the Open Law Project node on icommons.org, see the node page, here.

I came across a post on Lexblog over the weekend titled "Niche bloggers could threaten legal publishers" which I found pretty interesting. The post referred to another post by Ron Friedmann where he pointed out that publishing tools like blogs, wikis and podcasts enable law firms and other publishers to publish legal content very easily and potentially to a pretty big audience, thus potentially threatening legal publishers.

This is pretty much what the Open Law Project is - an initiative to harness the knowledge of the community and publish legal content using these publishing tools. This is a threat to the legal publishers who tend to publish their content behind a walled garden. Of course they have quite a bit of legal content at their disposal but as independent publishers start to publish content of a similar quality and perhaps even quantity, legal publishers will start to lose their grip in the market, especially if the independently produced content is free.