Two recent decisions by Canadian courts have surfaced interest in the concept of copyright in facts and data. This post will address the “ownership” of facts while a subsequent post will address copyright in data.
In a recent Federal Court case (Maltz v Witterick 2016 FC 524), a documentary film maker argued that she could control the use of factual information presented in the film so as to prevent the author of a YA (Young Adult) novel from using those facts in the creation of a fictional work.
Judy Maltz and two others created the documentary film, No. 4 Street of Our Lady in 2009. The film is centred on a Polish-Catholic woman in Galacia who hid Jewish children in her home during the Nazi occupation of Poland. A diary written by a survivor was used as the basis for the film which also incorporated location shots, testimonials from survivors and from the woman’s descendants. Jenn Witterick saw the documentary and was moved to write her novel (My Mother’s secret) incorporating facts from the documentary including the real names of some of the people in it, blended with original fictional content.
In 2013 Maltz and her partners brought suit against Witterick for infringement of copyright and moral rights. In support of their claim, the documentarians claimed that the book copied personal family stories, structure and narrative devices from the film, identifying what they claimed to be thirty similarities between the works.  Their expert witness in the case was Jack Granatstein, a distinguished Canadian historian who presented the argument that one needs to distinguish ‘large’ facts from ‘small’ facts. A ‘large’ fact is one well-known to all (the Second World War began with Germany’s invasion of Poland), but a small fact is one that is only discovered through rigorous research and scholarship. The documentarians claimed that several such small facts had been recorded nowhere else but in the film.
Witterick did not deny that her work was inspired by the documentary, even admitting that she downloaded a copy to verify aspects of the novelisation. She countered that there can be no copyright in facts, whether ‘large’ or ‘small’ and that copyright concerns itself with the expression of ideas. “In this case, the Respondents say the Applicants cannot argue similarities between the characters in the Book and the “real life characters” in the Documentary since these are or were real people whom the Applicants cannot own.” 
In his decision, Mr. Justice Boswell claimed the argument regarding small and large facts was “without merit. Copyright 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...using an actual fact from the Documentary is not infringement no matter how large or small, significant or insignificant, such a fact may be.” 
On the question of whether the book borrowed substantially from the film, Boswell relied on the Supreme Court decision in Robertson v Cinar, wherein Chief Justice McLaughlin stated that a determination of substantiality is a qualitative not a quantitative one, and must encompass the whole of a work. While inspiration for the novel may have been found in the documentary, the borrowing of names, places and dates is again factual information and therefore outside the purview of copyright. There was little verbatim copying of dialogue from the film, and on the question of whether the book diminished the market for the documentary (passing as the ‘true’ story), there was little evidence put forward to substantiate the claim. Finally, on the question of moral rights, Justice Boswell determined: “… there is negligible, if any, relevant evidence of how the Applicants’ honour and reputation has been affected by the Book… Moreover, there is no expert or public opinion evidence in the record which would satisfy the objective aspect of assessing whether the Applicants’ moral rights have been infringed or otherwise violated.” 
There has been a great deal of commentary on this case. Kate Taylor, writing in the Globe & Mail, claimed Ms. Maltz “had her heart broken” by the decision: “Whatever you think of Witterick’s fast-track approach to publishing – you could call it derivative, or impolite… It may seem pretty tough on Maltz to watch both her original research and her family history paraded around to another creator’s benefit,” but this argument carried little weight with legal commentators. Writing in the IPOsgoode blog, Jacquilynne Schlesier noted the difference between academic plagiarism (a classroom crime) and copyright infringement. In the former, ideas cannot be copied, while the latter only penalises copying of expression. Cristol Chabot-Lapointe and Camille Marceau, writing in snIP/ITS said the case “offers an example as to what extent one can use names and facts from an artistic work and use it to create another original artistic work without being an infringement of copyright.” This view was echoed by Rob Aske of Stewart McKelvey who stated the 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.” Toba Cooper, commenting in ShiftLaw blog was pointed and brief: “These facts are nothing more than mere ideas that form the basis or foundation of expression.” A British take on the decision offered at IPIustitia, restated the case for re-use of factual content: “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.” A contrary suggestion was posed by John McKeown who wrote: “It is curious that no direct reference seems to have been made to the plot of the dramatic work in issue and the dialogue and working out of the dramatic work. Traditionally these matters should be considered in order to determine whether a dramatic work has been infringed.”
 Ibid. at para 18; para 21
 Ibid. at para 31
 Ibid. at para 50