Historical Facts And Copyright: The Maltz v. Witterick Case

On May 10, 2016, the Federal Court of Canada rendered its decision in Maltz v. Witterick,¹ denying the Applicants, Judy Maltz, Barbara Bird and Richie Sherman, producers of a documentary called No. 4 Street of our Lady (the "Documentary"), an award in damages for breach of copyright and infringement of moral rights allegedly caused by Jennifer L. Witterick, author of the book My Mother's Secret (the "Book").

In re-examining the question of whether a particular set of facts can be subject to copyright protection, this case sheds light on the "substantial taking" test as set out in Cinar Corporation v. Robinson.² The Federal Court, mindful not to upset the balance between the  protection of original work and the public's interest in maximizing the production of intellectual work, seemed reluctant to award copyright protection to a set of specific facts as portrayed in the Documentary.  The case also briefly refers to the issue of infringement of moral rights under s.