Federal Court

Industrial and Intellectual Property

Application for infringement of copyright and moral rights was dismissed

Copyright owners were three individuals who produced documentary about Polish woman who hid Jews from Germans during World War II. One owner was granddaughter of man who had been hidden by woman and who had made entries about his experience in diary. After seeing documentary, author wrote novel conveying fictionalized account of woman’s story using many facts obtained from documentary. Author self-published novel initially, and it became best-seller. Publisher acquired publish rights for novel. Documentary was never mentioned in book or publicity material. Owners brought application against author and publisher for relief for infringement of copyright and moral rights. Application dismissed. Owners failed to establish any infringement of copyright or moral rights. Woman’s story was not in and of itself covered by owners’ copyright in documentary. Factual details of woman’s story were also not covered by owners’ copyright in documentary. Owners’ copyright only protected owners’ specific expression of woman’s story through exercise of their skill and judgment. No one owned copyright in facts no matter what their relative size or significance. What was protected was owners’ particular means, method, and manner used to tell woman’s story. Using actual fact from documentary was not infringement no matter how large or small, or how significant or insignificant, such fact might be. There could be no copyright in facts or ideas, only in their expression through exercise of skill and judgment. Authors’ novel did not amount to substantial taking of protected material from documentary. Copyright protection for fictional characters did not extend to real people. Originality of documentary remained intact despite fact novel used its historical facts. Novel constituted new and original work of fiction emanating from historical facts. As for moral rights, there was negligible, if any, relevant evidence of how owners’ honour and reputation had been affected by novel.

Maltz v. Witterick (May. 10, 2016, F.C., Keith M. Boswell J., T-500-14) 266 A.C.W.S. (3d) 451.

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