These questions are recieving quite a lot of attention right now. One reason for that attention is the demographic change taking place in US law schools. According to the Law School Admission Council, the number of law school applicants (to US law schools) fell by 14.4% from 2011 to 2012, and by 23% from 2010 (to 2012). This caused the American Bar Association to call for drastic changes to legal education.

But other US law schools have experienced increases in applications, and many are rapidly expanding their LLM programs to accomodate many more forieng students, especially from Asia. The declining number of applicant’s at lower tier US schools shouldn’t distract from the slower but more significant challenges that will affect law schools around the world sooner or later. The only exception that I can think of are schools of cannon law maintained by the Catholic Church. One set of challenges is to the way that lawyers work, and can work due to information technology, globalisation that is tangled up in the opportunities provided by information technology, outsourcing, automation of discovery. Another set of challenges has to do with the business model(s) of legal practises and especially the ways in which those model(s) rely on hourly billing.

In South Africa concerns about the undergraduate LLB degree, the underpreparation of practitioners and the regorganisation of the profession through the Legal Practise Bill are also prompting concern from law schools.

The future or rather the possible futures of law schools is a recurring topic in the press. I don’t aim to report on the topic. Instead I am planning a series of reflective blogposts on aspects of law school that draw on my rather unique set of experiences.

I had the benefit of obtaining a post-graduate LLB from a leading South African law school, and the privelige of teaching at two leading South African law schools. I’ve also been both student and instructor at a T14 school in the United States. But I haven’t only been a scholar, I’ve practised commercial law; litigation and transactional and public interest law; both impact ligitation and clinical. I’ve worked for government in the creation of a new agency, for non-profit organisations and for a change agency (donor organisation).

The eclectic and constant change of my career may horify some readers. Perhaps that (polite) horror is appropriate. But my varied experiences should be useful for this at least; for considering the futures facing law schools around the world, and the futures facing law students or would be law students, since tommorrow’s law students careers are more to resemble my career; transglobal, varied and ecletic than the careers of students of the past.

But this does not mean the end of Law School or indeed of law schools, rather in an increasingly complex world characterised by multiplying overlapping regulatory regimes Law School must change. How and in what ways Law School and the qualifying of lawyers must change will be the subject of future posts.

But there is a simpler more mundane coherence that can be achieved rather more easily and that will, in a modest way, contribute to acces to justice. One of the primary sources of law is statutes; statutes passed by the colonial and apartheid governments, and statutes passed by the democratically elected parliaments. Statutes are often lengthy (the Companies Act 2008 is 225 sections long with 5 schedules), complicated and often the source of subordinate laws (referred in South African parlance as regulations) that are created by executive officials under the authority of the statute.

Unsuprisingly a deadwood collection of the South African statutes isn’t something one can carry around unaided. Rather suprisingly there is little order to the statutes. Government ministries and their corresponding departments are regarded as have responsibility for specific statutes. Commerical publishers have organised the statutes under topics, but the statutes themselves are not organised as a code. Finding the relevant statute requires skill and experience.

Perhaps that was unavoidable when law was paper based. It is eminently avoidable now. South Africa could create a legislative code along the same lines as the United States Code which is prepared by the Office of the Law Revision Counsel of the United States House of Representatives. The US Code is “a consolidation and codification by subject matter of the general and permanent laws of the United States”. The Code is organised by titles, chapters and sections.

Why is a statutory code desireable? Collecting all the legislation (and sudordinate) legislation on an issue in one place makes finding the law easier. That is important to a society comitted to the rule of law. Not every legal question should require a lawyer, simpler legal questions should be answereable by citizens for themselves.

Collating the legal sources on issues serves another purpose, it reduces legal costs because lawyers don’t have to find widely seperated sources. That too serves access to justice. But collation also serves other purposes assists review of the law; do the statutes work together or do they contradict one another, are time periods and penalties harmonious or disproportionate? Is is necessary for a new statute to define terms or can it rely on terms already defined? Must new structures be created or can existing structures be modified to take on additional tasks? Codeifying South African statory law would not prevent contradiction, duplication or incoherence. It is does however change the nature of the intellectual task of statutory drafting from a discrete problem solving exercise to systemic exercise that requires consideration of how the statute in question fits into the far larger edifice of South African statute law.

PS. Of course South Africa could create a Code differently to the US, the South African Code could be born digital, the code could be fully searcheable, sections that refer to each other could be hyperlinked, subordinate regulations could be hyperlinked and a lense could enable the users of the Code to annotate the Code, adding links to relevant materials such as cases and law journal articles.

Who would run such a project? The Department of Justice is one possibility but Parliament itself is a good candidate since legislation is passed by parliament and while the executive branch implements legislation parlimentarians (should) consider legislation as their responsibility.

The metaphors we use for our interactions with technologies affect how we think about those interactions. That has implications for ethical reasoning and for media professionals. I discuss some of these implications in a piece hosted by the Center for International Media Ethics.

Describing his experiences dealing with the Municipal Demarcation Board, the National Statistics Agency and the Electoral Commission,  provincial and municipal administrations he reports that many of these government offices claim that the databases they administer are subject to copyright and even deny permission to re-use the data.

I have bad news for Adi, the practises that he is tracking are layered onto an even more complicated and contradictory  legal situation.  To appreciate the complex legal rules bearing on open data in South Africa one needs to consider the interaction of four five distinct sets of legal rules.

The Bill of Rights grants everyone rights to information, especially information held by the State. The Promotion of Access to Information Act creates mechanisms for the enforcement of the right information held by the State. The Copyright Act dates to 1978, long before the Constitution or the rise of Big Data. Which aspects of of data are subject to copyright? In what circumstances does copyright over data vest in the State? Is the 1979 delegation of control of state copyright to the Government Printer permissible under the 1996 Constitution especially the provisions governing the powers of provinces and municipalities? How does the legal duty of co-operative government, including information sharing, affect the duty of government offices to share data? Are databases subject to the State Information Technology Agency Act 1998? Should the Ministerial Interoperability Standards specify data formats?

The interaction of these different legal and policy instruments that creates uncertaintly for government offices is not the result of design but of a contingent process in which the interacting factors developed in different contexts but now must be understood together. South Africa could benefit from open government data, and is in some exceptional cases already benefiting. But if the successul experiments are to scale the legal complications need to be addressed.

The linchpin of this attempt was the use of the word “counterfeit” to describe spurious medicines. The therianthropic term “counterfeit” entered the discussion about spurious medicines from an international intellectual property enforcement discourse where it was used in ever changing ways in Intellectual Property documents such as ACTA, to refer to a wide variety of activities that include trade mark infringement.*

For example the World Health Organisation International Medical Products Anti-Counterfeiting Task Force (WHO IMPACT) claimed that counterfeit medicines “may include products with the correct ingredients or with the wrong ingredients, without active ingredients, with insufficient or too much active ingredient, or with fake packaging.” **

According to this description of counterfeit medicines a medicine might be counterfeit even if it has the right ingredients in the right quantities but has “fake” packaging”. The definition thus includes generic medicines when there is a dispute about the trademark relating to the medicine. German customs officials, apparently unable to distinguish between the International Non Proprietary Name and a trademark have intercepted medicines in transit to a least developed country and defended their actions by claiming a concern about counterfeit medicines.

Kenya, relying on international experts passed anti counterpointing legislation that was subsequent struck down by the High Court because it effectively label generic medicines as counterfeit and thus threatened the right to health.

If those are the wrong approaches to spurious medicines there are far more innovative approaches such as Sproxil. A consumer can scratch a ticket and then text a unique number to Sproxil which would then confirm the authenticity of the product. This system works in developing countries with low Internet penetration but where cell phones are widespread.

* Unravelling the full etymology of ‘counterfeit’ will have to wait for another day.

** WHO IMPACT has subsequently begun to use the term SFFC (spurious/falsely-labelled/falsified/counterfeit) medicines.

Obviously that provision was unconstitutional since it enabled private person to effectively remove speech that he did not agree with from public view. The South African Department of Communications has proposed am mending the provision by including a new provision, section 77A to the proposed Electronic Communications and Transactions Act Bill.

The proposed set up is that a complainant would send a notice to a service provider which would be obliged to reply to at least the grounds of the complaint. The complainant would then decide if he was satisfied and if not send a final notice of take down whereupon the service provider would have to take the content down or lose its protection from liability.

The rationale for the proposed amendment is set out in the Explanatory Memorandum (available at MyBroadband but not on the DoC site)

” 12.5 After further consideration, the Minister considers that any notice or take-down procedure should allow for the right of reply in accordance with the principle of administrative justice and the audi alteram partem rule. Changes have been proposed in this regard to section 77 and a new section 77A is proposed.”

Of course a provision that requires an ISP to answer to a complainant but does not give notice or an opportunity to respond to the content provider does not comply with the audi alteram partem (hear the other side) rule at all. The proposal is as unconstitutional as the current section. A notice and notice provision such as that about to be adopted by Canada seems as if it would be a better fit for South Africa.

Submissions to the Department of Communications on the Bill can be made by 7 December 2012. They can be addressed to: palesa@doc.gov.za

Two recent reports in the press show how universities are having to innovate around the provisions of the Act in order to work with the private sector.  According the Financial Mail “it is also scaring off private investors from commercialising discoveries”.

Business Day reports that Aart Boessenkool, director of the Office of Commercialisation and Technology Transfer at the University of Johannesburg, describing the gap between university research and a commercial prototype”the valley of death”. According to Boessenkool “To take an invention through the valley of death takes a lot of money”. South African universities don’t have that kind of money. As Anita Nel, CEO of Stellenbosch University’s InnovUS points out the Act requires universities to “commercialise” all intellectual property generated by the university or face having it taken away by a government office.  But most university research doesn’t give the kind of payback that makes spending a lot of money to cross the valley of death worth it. According to Nel ‘About 95% of our income is derived from less than 5% of the technologies on our books.”

It is appropriate that not all university research can be turned into commercial products. Universities don’t exist to compete with the private sector but instead to advance and disseminated knowledge. That is why we public funding. Universities do what is called basic research really well. Basic research doesn’t mean that it is easy but that it is fundamental, aimed to understanding general principles. The role of the private sector is to turn that basic research into products that someone wants to buy. The problem is that universities are now required by the Act to control what the private sector does with its research and the private sector is complaining that the result of the act are too much accuracy.

The articles report that InnovUS has created a new programme called Instant Access  in which gives companies full commercial use for three years without charge. Only if a company makes money from a product is it required to pay any amount to InnovUS. This is an ingenious solution to one of the problems created by the Act. But it shouldn’t be necessary because I and a number of others warned about these problems in 2009 but the drafters of the Act persisted without heeding us.

At a glance the report covers a lot of territory.

• The report suggests turning wireless access providers into collecting agents for collecting societies.
• It chronicles the collapse of SARRAL a collecting society that was meant collect and distribute royalties for the “mechanical rights” (making of sound recordings) of composers of music. The commission recommends that the liquidators of SARRAL consider legal claims against the former auditors and directors of SARRAL.
• 43%  of all music royalties collected in South Africa are paid directly to foreign collecting agencies, a further percentage are paid to local branches of foreign right sholders (e.g. EMI) .
• For distribution of music royalties “transparency around the flow of funds between the various sources of income and the recording  companies, and the computations of income available for distribution to the artists is limited”.
• Nine years after the introduction of needletime there has been no distribution of of money collected to  to artists.

There is much more in the Report, indeed there is enough to write a thesis, encompassing as it does broadcast and telecommunications regulation, corporate governance and the standards of King II, and new business models for music, and lets not forget copyright.

* This link is provided by the South African government information service. If you’ve  previously tried to download the report from the Department of Trade and Industry website you’ll have discovered an erroneous link. I’ve emailed the DTI but they haven’t responded.