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Kate Taylor: Should the law protect original research? Add to ...

A decade ago, the American-Israeli journalist Judy Maltz began a deeply personal film project in Eastern Europe; this week, she had her heart broken by a copyright decision in a Canadian court.

Inspired by her grandfather’s diary, Maltz had gone to Ukraine to investigate the story of how her own family was saved from the Holocaust by a Catholic woman who hid 15 Jews in her barn and house while posing as a Nazi sympathizer.

Working with two other American documentarians and interviewing those still alive, she recounted the story of Francizska Halamajowa’s bravery in No. 4 Street of Our Lady, a documentary released in 2009.

In 2011, Toronto money manager Jenny Witterick saw the film at a Holocaust education event and was inspired to write a book for young adults, turning Halamajowa and her daughter into characters who carried the same names and adding a romance to the story that Maltz had uncovered.

She never contacted Maltz before she self-published the book, titled My Mother’s Secret, in 2013, nor did she acknowledge the documentary, although she offered to do so after Maltz found out about it and contacted her. Meanwhile, the book was picked up by Penguin and rereleased.

Whatever you think of Witterick’s fast-track approach to publishing – you could call it derivative, or impolite – it does not infringe Maltz’s copyright, according to a court decision this week.

Justice Keith Boswell of the Federal Court released a decision Tuesday dismissing a claim that Maltz and her fellow filmmakers, Barbara Bird and Richie Sherman, had brought against Witterick and Penguin Canada.

He concluded that the information in the documentary is a matter of historical record: Facts are generally not protected by copyright. And, since the book did not infringe on the film, it could not be said to be violating Maltz’s moral rights in her work.

In particular, Boswell did not buy an argument made by Maltz’s lawyer that there is a difference between large facts that everyone knows – the Second World War started when Germany invaded Poland, for example – and small, specific facts such as those uncovered by the documentary.

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 several copyright lawyers I contacted this week were not surprised by the decision.

“The claim was brought by someone who felt their labour and effort should have been protected from copying. Unfortunately, that is not how copyright is made up,” said lawyer Barry Sookman.

Canadian copyright law does not protect “the sweat of the brow” – or at least not since 2004 when the Supreme Court handed down a landmark decision defining an original work as one that required not merely compilation or research but also the exercise of skill and judgment.

In the case, which legal publishers had brought against the Law Society of Upper Canada in an unsuccessful attempt to stop the photocopying of legal texts, Chief Justice Beverley McLachlin ruled that copyright does not protect ideas but rather the expression of ideas.

In this regard, the lawyers point to a couple of factors that weighed against Maltz: Her work is a documentary, and thus enjoys less protection than a fictional creation might; also, Witterick’s work is a young-adult novel, and thus clearly different in expression from the documentary.

In court, historian Jack Granatstein had argued for Maltz’s side that it was inappropriate for the book not to credit the documentary for detailed pieces of original research, such as information drawn from a soldier’s diary entry, but it wasn’t an argument that carried the day.

In academia, it is considered crucial to acknowledge the source of any ideas or original facts, but copyright is a much narrower beast.

“There can be a distinction between cultural norms and legal rights,” said Toronto lawyer Casey Chisick.

He and his colleagues agreed that Hollywood producers would routinely clear rights with authors of non-fiction books they were planning to turn into fictionalized movies – but they argue this may not be legally required.

It’s just a smart way to avoid exactly the kind of fight Witterick faced.

She is pleased with the decision, saying in an e-mail: “No one can monopolize fact, otherwise there would be no category called historical fiction. Truth does prevail and I am grateful for that.”

Meanwhile, Maltz is reviewing the decision.

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