Canada: Copyright Does Not Monopolize Facts - Documentary Filmmakers' Claim Against Book Author And Publisher Fails

Last Updated: June 29 2016
Article by Rob Aske

In May 2016, the Federal Court of Canada confirmed that copyright does not protect facts, even where a book's author is clearly inspired by the content of a film. The plaintiff's documentary film was entitled: No.4 Street of Our Lady, which was based on the story of Francizska Halamajowa, who harboured and hid three Jewish families and a German deserter in World War II. The film was also based in part of the diary of Moshe Maltz, who was one of those hidden by Halamajowa, and Maltz was also the grandfather of one of the plaintiffs.

The plaintiffs claimed that Penguin Books and the author Jennifer Witterick infringed copyright, and specifically that Witterick's novel entitled My Mother's Secret unlawfully copied from the documentary film.

It was clear that the author Witterick had seen the documentary for the first time when attending the screening in 2011 in Toronto. She admitted she was inspired by Halamajowa's story and her courageous acts to write her book. But Witterick argued that the book was just a fictionalized version of Halamajowa's story, which was aimed at the young adult market.

It is noteworthy that Witterick used the real names of the Halamajowas and several facts from the documentary, such as the location of the story, where people were hidden, that Mrs. Halamajowa had left her husband, and that she had a son and a daughter. The author Witterick otherwise claimed that the characters and personalities were fictional.

The evidence also showed that in July, 2012, Witterick downloaded a copy of the documentary to confirm the historical accuracy of some of the facts in her book.

After Penguin published the book in Canada in 2013, the plaintiffs' legal counsel sent their first cease and desist letter in late October, 2013.

There was later an offer by the defendants to include some form of acknowledgement of the film in the book, but the negotiations were apparently unsuccessful.

The plaintiffs claimed there are at least thirty similarities between the documentary and the book, including what they described as "small facts", which were not documented anywhere but in their film.

Justice Keith Boswell of the Federal Court first noted that the documentary as a whole is undoubtedly protected by copyright, but that there can be no copyright in facts. He ruled that Halamajowa's story and its factual details are not covered by copyright, but only the plaintiffs' specific expression as captured through their own skill and judgment.

Justice Boswell rejected the plaintiffs' reference to small facts deserving of protection, and ruled that: "facts are facts, and no one owns copyright in them no matter what their relative size or significance."

Boswell also stated: "Since facts are not protected by copyright, they are not part of the work's originality. Consequently, any facts copied or taken by Ms. Witterick and used in her book should not form part of the assessment as to whether a substantial part of the documentary was taken by her."

The Court also found that there were no fictional characters in the documentary, but only real people and recollections of real persons, to which copyright does not apply.

The Court found that there was little if any verbatim copying of dialogue from the documentary.

The Court also stated that the author: "...clearly used the documentary for reference and, while taking material from the documentary saved her the time and effort of re-creating the research effort performed by the plaintiffs, this is not sufficient to find that she has infringed the originality of plaintiffs work."

It was ruled that the defendants' book in its own right was a new and original work of fiction emanating from historical facts, and that therefore the defendants had not appropriated or taken any substantial portion of the documentary's originality. The Court said it was "difficult to identify a single element taken that is not either something generic or merely a fact."

This case clearly shows that even admitted access to a work based on fact, and the subsequent development of a new work, may not constitute copyright infringement, if the expression of the first work is not copied.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Goldman Sloan Nash & Haber LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Goldman Sloan Nash & Haber LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions