During the Holocaust, a Polish Catholic single mother, Francizska Halamajowa, secreted 15 Jews away from the Nazis. Two families hid for years in the hay loft of her pigsty, while another family lived under the floor in her kitchen. She also hid a deserter from the German army in her attic. To evade suspicion, she curried favour with German officers. She even hosted dinner parties directly above the hole where one family hid.
Ms. Halamajowa’s fascinating story should be told. But, who has the right to tell it? That issue is at the heart of the recent Federal Court decision in Maltz v. Witterick.
Judy Maltz is the American granddaughter of Moshe Maltz, who kept a diary during the years he spent hiding in Ms. Halamajowa’s hay loft. Maltz and filmmakers Barbara Bird and Richie Sherman spent three years creating No. 4 Street of Our Lady, a documentary about Halamajowa. They interviewed surviving members of the hidden families and travelled with them to visit the former Halamajowa house in Poland. The film is based on the diary and the contemporary memories of the survivors and their children.
Canadian writer J.L. Witterick was the head of an asset management firm when she saw the documentary. Inspired by the story, she wrote a fictionalized version of it targeted at Young Adult readers, called My Mother’s Story. The novel is set in the original time period and told in the present tense from the point of view of four different narrators. Although she acknowledged the documentary as her inspiration in interviews, she does not mention it in the book.
Justice Boswell’s decision hinges on the principle that there there is no copyright protection afforded to history and facts. It is a well-settled principle; he cites the 2002 Federal Court of Appeal decision in CCH v. Law Society of Upper Canada, which in turn cites Deeks v. Wells, which dates back to 1931.
Although they were ultimately unsuccessful, the Applicants raised a novel and interesting argument for protecting the factual information in the documentary. Based on the expert submissions of eminent Canadian Historian Jack Granatstein, they argued that, as in cases of academic plagiarism, copyright law should differentiate between large facts—e.g. the date the Second World War began—and small facts like those found in a personal journal or family history. Since the documentary mainly revealed small facts about Halamajowa and the families she shielded, their effort in uncovering those facts should be protected.
Unfortunately for Maltz, while Witterick’s borrowing might be plagiarism in a classroom, it is not infringement in a courtroom. The difference between large and small facts might be a useful distinction in academic circles where copying of ideas is forbidden, but it does not fit well with copyright law where copying of ideas is acceptable and only copying of expression is forbidden. Prominent cases about the protection of facts have been fought over the most mundane of facts: the names and phone numbers in a telephone directory. Those minutiae are not considered protectable under copyright.
Maltz and her colleagues undoubtedly expended significant effort researching Halamajowa and bringing together the survivors to tell their own stories. The expressive elements of their work as filmmakers and journalists—the film’s script, the way the story was framed, the choice of artifacts and photographs—are protected. But the basic factual elements revealed in the film—who lived where, what dangers they faced if discovered, how Halamajowa fooled German officers—remain as facts and events that really happened. Witterick was welcome to draw on them in creating her own original story about those events.
To a layperson, the result might seem surprising. In the Globe and Mail, Kate Taylor called Ms. Witterick’s book derivative and impolite. Anyone who has set foot in a university classroom has been warned about copying and plagiarism. The entertainment media is full of stories of Hollywood producers paying to secure the rights to non-fiction books, and we assume they must be buying something. People often assume that copyright is at issue when it comes to plagiarism and movie rights.
As this case makes clear, there is no copyright in history, only in the telling of it. Someone else can tell the same story in a different way without infringing.
Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.