- Authenticated, by providing a method to determine that it is unaltered;
- Preserved, either in electronic or print form; and
- Accessible, for use by the public on a permanent basis.
The Act makes it clear that this doesn't affect any of the current contracts or relationships that states currently have with vendors such as Westlaw or Lexis. However, as we've recently seen in Illinois, those publication deals for state materials, coupled with the shrinking state budgets, have pressured states to transition from print publications by vendors and go straight to self-publication through electronic means.
Of course, this is just the beginning of the process. A lot depends upon what the individual states do from here. I had an email exchange with Phil Rosenthal, President of Fastcase, who was an observer on the committee and he points out three potential challenges that are being left to the states to decide:
First, the Act requires that the legal materials be "reasonably available for use by the public on a permanent basis," but does not demand that access be free, define what cost is reasonable, or demand that the law be bulk-downloadable. Second, the Act allows a state to choose to offer the official version of legal materials in electronic form only, but then choose to preserve it only in another form such as paper. Finally, the Act does not address whether a state can assert copyright in its law or claim to grant the asserted copyright to a commercial publisher.Rosenthal points out that many of these issues were outside the purview the ULC committee, but that if states made "the wrong choices, public access will be more limited than in the old world of books, and competition will be severely hindered." He went on to give a specific scenario where a state creates a process where its official laws are online, but the preservation portion of the process is stored only in paper:
In the old non-digital world, there would be copies of the legal materials in many libraries throughout the state, both public and private. Access to archival materials could be achieved in many different ways. In the new world, because the law was available online to all, there was no incentive for libraries to build archives. When the law is taken offline by the state to be preserved in print, suddenly there may be only one or two copies in the world, available to the public only when and at the cost deemed reasonable by the state. This would actually be a step backwards from the days of many paper copies in multiple libraries.Rosenthal pointed out many other issues that are hanging out there for the states to determine. Issues such as the availability and affordability of bulk downloads for vendors; issues of ensuring quality control; and, what happens if state budgets don't support the costs of preservation; states once again claiming copyright to this new format and bringing back ghosts of "official pagination" claims once again. "If the right choices are made, having official online authenticated law will do wonders for public access, preservation, and competition. If the wrong choices are made, access to historical materials may be reduced to a level below where it was in the print-only days, and competition and innovation could be significantly stifled."
I guess time will tell…