Publicly funded databases like CanLII are vital; the right to exploit them for profit isn't
Last month, the Canadian legal technology landscape was shaken as CanLII filed a lawsuit against Caseway.ai, alleging that the company misappropriated its content to offer it under a paid subscription model. Caseway has pushed back, framing CanLII’s legal action as “aggressive” and threatening to bypass CanLII altogether by creating its own court database, which they claim could render CanLII “irrelevant.”
As the chief strategy officer at Jurisage, which maintains Canada’s second-largest collection of case law data, I know that aggregating and publishing legal decisions requires significant effort, compliance, and responsibility. Public access to case law is essential to our justice system, but this does not entitle commercial entities to exploit publicly available legal data without understanding – or respecting – the work involved.
This dispute underscores a broader question: how do we balance open access to law with the responsibilities required to maintain and safeguard legal data?
It’s important to understand that courts aren’t in the business of publishing – they’re in the business of administering justice. When a judge hands down a decision, her job is usually done. Making those decisions accessible to the public requires an entirely separate layer of effort, traditionally performed by organizations like CanLII. And this work is anything but simple.
To build a comprehensive database of legal decisions, organizations must first convince courts to share their rulings. Courts weigh the public interest and prioritize trust when granting access, knowing these decisions could contain sensitive information. Aggregators must then manage the ongoing release of decisions, handle requests for corrections or retractions, and ensure compliance with strict policies designed to protect the integrity of the data.
Even once decisions are obtained, they arrive in raw, unstructured formats – plain Word documents with no metadata. Aggregators must identify and extract critical details like case names, dates, judges, and jurisdictions, ensuring accurate and usable information. At Jurisage, this process requires dedicated staff, including a data custodian, and robust systems to manage the load.
Public access to legal decisions is a cornerstone of our legal system, where judicial precedents are themselves a source of law. Everyone – from lawyers and judges to ordinary citizens – should understand the laws governing them.
But there’s a critical distinction between public access and commercial use. Public access requires that legal decisions be available to all, free of charge. Commercial use, by contrast, must balance the benefits of innovation against the risks of entities profiting from the labour of others without compensation or potentially undermining the system’s sustainability.
This distinction appears to be lost on Alistair Vigier, one of Caseway’s co-founders. He said he was “surprised that, as a not-for-profit organization, CanLII has [...] opted to take such an aggressive and competitive posture toward Caseway” and that the lawsuit is about “monopolizing access to publicly available data under the guise of copyright and restrictive terms of use.”
CanLII is not taking an anti-competitive approach. Instead, CanLII is a public-interest organization that makes case law freely available while investing heavily in curating and maintaining its database.
Nor is CanLII monopolizing access to publicly available data. The courts decide to whom they release their decisions, and they do so for many companies, including CanLII, Jurisage, Westlaw, and LexisNexis.
Allowing companies like Caseway to scrape and repurpose data from CanLII without permission undermines the ecosystem that makes public access possible in the first place.
CanLII is a shining example of how legal data can be accessible to the public. Its database is unmatched, even by legal resources in countries like the United States, where comprehensive access to case law often comes with a hefty price tag. CanLII’s impact is so profound that the Ontario Rules of Civil Procedure now require hyperlinks to CanLII decisions in legal submissions – ensuring the public can access the same case law cited in court filings.
This model is worth defending. The effort required to maintain a resource like CanLII cannot be dismissed or taken for granted, especially by commercial actors whose business models rely on its continued existence.
Case law is essential not only for access to justice but also for driving legal innovation. Tools that analyze, interpret, and apply case law can transform how lawyers work and judges decide cases. But innovation must be rooted in responsibility. The Caseway lawsuit should inspire companies to find legitimate ways to build on the foundations provided by aggregators like CanLII rather than undermining them. CanLII’s actions remind us there’s a line between fostering innovation and permitting exploitation – and that line is worth defending.
