Federal Court Rejects Copyright Claim Based on Copying Historical Facts

In Maltz v Witterick, 2016 FC 524, the Federal Court (the Court) dismissed claims for infringement of copyright and moral rights, on the grounds that there is no copyright in historical facts contained in the Applicants’ documentary film. The Court found that facts, whether characterized as “small facts” or “large facts”, are not protected by copyright. Rather, copyright exists in the expression of facts through an exercise of skill and judgment. In this case, even though the core story of the Respondents’ book was taken from the Applicants’ documentary, the story was based on historical facts in which copyright does not exist.

The Applicants are owners of copyright and moral rights in a documentary entitled No. 4 Street of Our Lady, based in part on the diary of a Jewish man named Moshe Maltz, who was hidden by the Halamajowa family in Poland during World War II. One of the Respondents, Jennifer Witterick, became aware of these historical events after watching the Applicants’ documentary, and authored a book entitled My Mother’s Secret based on the same events.

The Court found that the Applicants’ copyright exists in the expression of Mrs. Halamajowa’s story, not in the story itself. Based on the significant differences between the Applicants’ documentary and the Respondents’ book, including the “expression, content, form, feel and experience.” The Court considered the Respondents’ book to be a new and original work of fiction emanating from historical facts.

The Court rejected the Applicants’ moral rights claim for insufficient evidence demonstrating how the Applicants’ honour and reputation had been affected by the Respondents’ book.