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Kate Taylor: In copyright law, who owns a family’s history? Add to ...

The Federal Court of Canada will get a break from dry tax law, arcane government disputes and a backlog of immigration cases next week when it turns its attention to a poignant cultural question: Who owns a family’s history?

Monday, the court will start hearing a copyright infringement case in which American-Israeli journalist Judy Maltz alleges that the bestselling young-adult Holocaust novel My Mother’s Secret is cribbed from a documentary she made about her family’s escape from the Nazis in wartime Europe. The author, Toronto money manager Jenny Witterick, and her publisher have replied that her new and original book is inspired by a story that is a matter of historical record.

In their application originally filed in 2014, Maltz and two American filmmakers, Barbara Bird and Richie Sherman, seek damages from Witterick and Penguin Canada (now part of Penguin Random House Canada) alleging that the 2013 book borrowed its plot and its central characters from their 2009 documentary No. 4 Street of Our Lady. That documentary tells the story of Franciszka Halamajowa, a Catholic Pole who hid 15 of her Jewish neighbours in a cellar and pigsty in the town of Sokal in what is now Ukraine. Those she saved included Maltz’s grandparents, father, two aunts and an uncle. The plaintiffs also list 30 examples in which lines in the book are similar to dialogue or narration in the film. (These are allegations and have not been proved in court.)

Witterick and Penguin have opposed the application, and have argued that Witterick’s book, which she originally self-published as a work of non-fiction, is a new, creative retelling of facts that are not protected by copyright.

How far will a court go in deciding whether Maltz has economic and moral rights over the dramatic family history she unearthed in Ukraine and then turned into a documentary film with Bird and Sherman’s help? In Canadian law, copyright infringement has usually been defined narrowly as unauthorized reproduction or direct copying; the unattributed borrowing of plots or ideas, even if it might be considered plagiarism in an academic setting, is not necessarily an infringement.

Meanwhile, a creator’s moral rights under the Copyright Act only include the right to the “integrity” of the work, and to have one’s name associated with it. The most notorious violation of integrity occurred in 1982 when the Toronto Eaton Centre tied red Christmas bows around the necks of the Canada geese in the Flight Stop sculpture that hangs at the shopping mall’s Queen Street entrance. Citing his moral rights under the Copyright Act, an Ontario court granted outraged artist Michael Snow an injunction and the bows came down. Apart from that famous example, however, there are very few Canadian cases in which a judge has ruled on integrity.

In next week’s case, the defendants may take heart from a prominent British decision in favour of Da Vinci Code author Dan Brown, who had been sued by the authors of The Holy Blood and the Holy Grail, a non-fiction work about a conspiracy to hide the descendants of a marriage between Jesus and Mary Magdalene. Although Brown’s novel uses such a conspiracy as the key to its plot, a 2007 appeal court judge upheld an original ruling against the Holy Blood authors, arguing their property rights did not extend to their theories and historical research.

On the other hand, the plaintiffs will look to a 2013 Supreme Court of Canada decision that found that the former Quebec animation house Cinar had infringed the rights of Claude Robinson with a Robinson Sucroe cartoon that resembled a registered character the filmmaker had previously pitched to the company. In that instance, the Supreme Court argued that copyright protects authors against both literal and non-literal copying if the copying represents a substantial part of the work.

The Federal Court can be expected to deliver its verdict in the My Mother’s Secret case by the end of the year, but, interestingly, another case involving Penguin that might have given some indication how broad a definition of infringement the court is favouring these days was dropped last June. Three Canadian authors, Wayson Choy, Sky Lee and Paul Yee, had sued Chinese-language writer Ling Zhang and Penguin, alleging that her translated novel Gold Mountain Blues infringed upon their copyrights because it used similar plots to those featured in their works about the Chinese immigrant experience in Canada. The parties agreed to settle out of court without any award of damages; Penguin paid the authors’ legal costs but Gold Mountain Blues is still for sale, and neither side is saying anything more about it.

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Follow on Twitter: @thatkatetaylor

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