Creative Facts Not Afforded Copyright Protection

• Published date: 17 June 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Bereskin & Parr LLP
• Author: Mr Martin Brandsma and Tamara Céline Winegust

The Federal Court of Canada recently confirmed the longstanding principle that facts are part of the public domain and free to use by all'even when they are later claimed to be made up. In Winkler v. Hendley, 2021 FC 498 ('Winkler'), Justice McHaffie determined that historical facts held out as true are not subject to copyright protection, regardless of their objective truth. The author's (and publishers') plausible assertions for nearly 70 years that the historical facts and events presented in the author's book were true and based on 'unimpeachable sources', was sufficient to allow the Court to find they were not protected by copyright'regardless of their objective historical truth and the Plaintiff's claims that some of the 'facts' were the author's own creations. Consequently, the Defendant's copying of (untrue) facts for his own book based on the same events did not amount to a taking of a 'substantial part' of the original portion of the Plaintiff's work and was not copyright infringement.

Winkler comes five years after Maltz v Witterick, 2016 FC 524 ('Maltz') in which the Federal Court also considered copyright infringement of a non-fiction work. In Maltz, Justice Boswell found an author's fictionalized telling of a Polish women's efforts to rescue a Jewish family during the Holocaust did not infringe the copyright in a documentary recounting the same person's story. There, the Court found no substantial taking or use by the Defendants of anything owned by the Plaintiffs because 'the use of common historical facts is not copyright infringement'. In Winkler, Justice McHaffie relied in part on Maltz, and came to essentially the same conclusion.

Taken together, Maltz and Winkler suggest an emerging trend of Courts providing works that represent their content as historical truths with very narrow copyright protection. They suggest that fiction writers and academics need not avail themselves of 'fair dealing' to defend their copying of purportedly true factual information from secondary sources (i.e., sources that are not the historical record itself), even if those sources may be original works subject to copyright protection in their own right. Importantly, however, neither of these cases forecloses the availability of concerned plaintiffs successfully advancing other causes of action'for example, a misappropriation of personality or privacy torts, defamation, or contract claims'when the facts of their life story (or those of another person) has...