I Looked it Up - Original Research Not Protected by Copyright in Canada

Research is incredibly labor intensive, and can take great leaps to achieve a given result (whether intended or not) or to argue a specific line of thinking. This expended effort into creating a work of merit or intrigue can be something that many would want to defend and benefit from, while preventing others from doing the same without putting in the very same work. With that being said, would one therefore be able to protect their research through copyright? This question was answered by the Federal Court of Canada in early May.

The case of Judy Maltz and others v Jennifer Witterick and Penguin Canada Books Inc. dealt with the documentary "No. 4 Street of Our Lady", which delved into the life of Francizska Halamajowa and her daughter Helena, who lived in Polan during World War 2 during the country's occupation by the Germans. During this time Ms. Halamajowa hid three Jewish families from the Nazis for nearly two years, as well as some German soldiers who deserted the Nazi army towards the war's end. The documentary was produced and directed by the claimant (along with her co-claimants), Ms. Maltz, who used her Moshe Maltz's, her grandfather's, diary for the factual background of the work. Jennifer Witterick, the defendant, after learning about the story of Ms. Halamajowa, wrote a book about her (although in a fictional context, incorporating some facts from the documentary in the book) titled "My Mother’s Secret". Ms. Maltz subsequently took the parties to court, asserting copyright infringement in her work.

The Court faced the questions of whether the work is protected by copyright, whether Ms. Maltz's moral rights had been infringed, and if she could claim damages for the same.

An interesting submission by the claimant is the use of 'small facts' versus 'big facts'. This distinction is made on the basis that big facts, such as World War 2 as a whole or other associated major events, cannot be protected by copyright, but the use of small facts, pertaining to very specific, possibly niche or unknown events, would be protectable through copyright.

Justice Boswell, handing down the judgment of the Court, first dealt with the copyright protection of the work. He acknowledged that (which stood undisputed by either parties) that the documentary was indeed a protected work, and Ms. Maltz would have rights to assert against any substantial copying of that work. He further affirmed, as has been accepted since the judgment in CCH (discussed more here on this very blog) that 'sweat of the brow' (work and effort, in other words) is not protected, but a proper exercise of skill and judgment in the creation of any given work. Similarly, this does not extend to mere facts.

Bill just never knew when to stop asking questions

Justice Boswell saw that "Mrs. Halamajowa’s story is not in and of itself covered by the Applicants’ copyright in the Documentary. The factual details of her story are also not covered by the Applicants’ copyright. It is not the story that the Applicants’ copyright protects but, rather, the Applicants’ specific expression of it through the exercise of their skill and judgment". As has been firmly established in copyright, it extends to the expression of ideas and not those ideas alone. Justice Boswell also handidly rejected the claimant's argument in 'small' or 'big' facts, as determined that "[c]opyright law recognizes no such difference or distinction. Facts are facts; and no one owns copyright in them no matter what their relative size or significance". The use of the facts from the documentary therefore would not infringe copyright. Arguably, this makes perfect sense, since facts are always facts, irrespective of their size or notoriety. Allowing for the protection of 'small' or even lesser known facts would create an area where the law would be at odds with itself, and the interpretation of Justice Boswell makes sense in preventing this issue.

The judge then turned to the matter of whether the work had been copied substantially. He emphasised that this would not include any facts presented in the documentary, but only the expression of those facts (as mentioned above). Justice Boswell concluded that there was very little verbatim copying from the book in the documentary, and its impact on the documentary's value would be minimal, or even non-existent, as the documentary's popularity had already been on the wane before the book's publication. He ultimately deemed the works to be wholly different in their expression, and although share the same story, would be separate, protectable works in their own right.

Finally, Justice Boswell addressed the issue of moral rights, and whether the book had infringed on those rights after its publication, which he deemed to be not infringed, due to no evidence existing that supported this notion. He dismissed the claim and awarded no damages to Ms. Maltz as neither her copyright or moral rights had been infringed.

Although the case is a very straightforward application of the law, it still presents an interesting notion on nuanced research or factual knowledge. While being able to present a niche argument, or a very little known story, can be a valuable asset, factual subject matter should not be protected through copyright, which would impede on the dissemination of freely available factual information by those who desire to create a different work entirely. Justice Boswell's judgment is a common sense one, but this writer enjoyed the mental exercise put forth by Ms. Maltz in her case.

Source: The Globe and Mail