Respondents Memo of Fact and Law Searchable Maltz V Witterick PDF

Court File No.
T-500-14
FEDERAL COURT
BETWEEN:
JUDY MALTZ,BARBARA BLRD and RICHIE SHERMAN
Applicants
~~
JENNIFER L. WITTERICK and PENGIJIlV CANADA BOOKS INC.
Respondents
RESPONDENTS'RECORD
(Volume 4 of 4)
MEMORANDUM OF FACT AND LAW
BERSENAS JACOBSEN CHOUEST

THOMSON BLACKBURN LLP
Barristers, Solicitors
33 Yonge Street
Suite 201
Toronto, Ontario MSE 1 G4
Peter M.Jacobsen(LSUC#17803P)
Tel :416-982-3803
Fax :416-982-2801
pjacobsen(a,lexcanada.com
Tae Mee Park(LSUC#50851N)

Tel: 416-982-3813
Fax:416-982-3801
t,~axk~a,lexcanada.com
Andrew W.MacDonald(LSUC#55589C)
Tel: 416-982-3830
Fax:416-982-3801
amacdonald(a,lexcanada.com
Solicitors for the Respondents

TO: THE REGISTRY OF THE FEDERAL COURT
90 Sparks Street
5th Floor
Ottawa,ON KlA OH9
AND TO: NAGERA & JARZYNA LLP

Barristers &Solicitors
1200-427 Laurier Avenue West
Ottawa, ON K1P SW3
Howard P. Knopf(LSUC#19578F)
Tel :613-238-8173
Fax :613-235-2508
howard.knopf(cr~,macerajarzna.com
Solicitors for the Applicants

Court File No. T-500-14
FEDERAL COURT
JiJDY MALTZ,BARBARA BIRD and RICHIE SHERMAN
Applicants
- and -
JENN~ER L. WITTERICK and PENGUIN CANADA BOOKS INC.
Respondents
INDEX
TAB DESCRIl'TION PAGE

VOLUMEI
1. Affidavit of Jennifer L. Witterick,sworn July 1Q,2014 1
lA Ex. A CD containing WPSU's Take Note probam dated 2~

April 15,2007
1B Ex. B Printout of the "About the Righteous" page from 26
Yad Vashem website
1C Ex. C List of Sources 31
1D Ex. D Email exchange between Ms. Maltz and Ms. 36

Witterick from Apri12013
lE Ex. E Appendix to Mr. Knopf's October 31,2013 Letter 40
1F Ex.F Respondents' Chart 69
2. Affidavit of Eli Rubenstein,sworn July 10,2014 105 .
2A Ex. A Eli Rubenstein Bio 110
3. Affidavit of Sara R.fIorowitz, affirmed March 19,2015 116
3-1 Ex.l Expert Opinion of Sara R. Horowitz, dated 118

February 12, 2015
3-lA Ex. lA Curriculum vitae of Sara R. Horowitz 146
3-1B Ex. 1B Letter of instruction 174
3-1C Ex. 1C Certificate of Conduct of Expert Witnesses 178

TAB DESCRIPTION PAGE
VOLUME 2
4. Cross-Examination Transcript of Judy Maiiz held on 181
January 21,2015
Ezhibits to Cross-Examination Transcript of Judy Maltz
held on January 21,ZO15
4-1 Ex. 1 Printout from Penn State University website re 398
Judy Maltz
4-2 Ex.2 Printouts from official website of "From The 402
Black You Make Color"
4-3 Ex.3 Printout of article titled "The Family Tree" from 404
The Penn Stater, dated November 2008
4-4 Ex.4 Letter dated Febi~aary 6, 2007, from Judy Maltz to 408
Wilf Family Foundation
4-5 Ex.S Bundle of 11 letter from Ms. Maltz seeking 411
funding for Documentary
4-6 Ex.6 Document titled "Foundation For Jewish Culture," 434
to Lynn and Jules Kroll Fund for Jewish
Documentary Film, 2008 Application
4-A Ex. AI Printout of article from Jewish Womens' Archive 447
website re Gertrude Hirschler
4-7 Ex.7 Photocopy of excerpts of translated and adapted 451
diary of Moshe Maltz, Years of HorYOr, Glimpse
ofHope
4-8 Ex.B Letter dated June 9, 1993, from Shengold 458
Publishers Inc. to Herbert Maltz
4-9 Ex.9 Photocopy of one-page excerpt from translated 460
and adapted diary of Moshe Maltz, Years of
Horror, Glimpse ofHope
Bazbara Bird
Richie Sherman
4-12 Ex. l2 Bundle of printouts of three searches on 469
Amazon.ca, Amazon.com and Terms and
Conditions re streaming video
4-B Ex. BI Printout of webpage re interview with Ms. Maltz 481
from website for "Conversations from Penn State"
program, with transcription of interview from
website
TAB DESCRIPTION PAGE
VOLUME 3
5. Cross-e%amination Transcript of Jack Granatstein held 495
Jnly 9,2015
Exhibits to Cross-examination of Jack Granststein held
July 9,2015
5-4 Ex.4 Ten page printout from website of Canadian 572
Expeditionary Force Study Group
6. Amended "Dialogue List" with Names of Speakers, 583
produced by Ms. Maltz February 12,2015
7. Printout of screenshot from Ms. Witterick's iTunes 680
account re purchase of Documentary on July 4,2012
8. Full Copy of Publishing Agreement between Ms. 681
Witterick and GP Putnam's Sons, dated July 18,2013
VOLUME 4
9. Memorandum of Fact and Law dated September I5, 692
2015
TABLE OF CONTENTS
PAGE
Overview
PART I — STATEMENT OF FACT 2

PART II — POINTS IN ISSUE 9
PART III — SUBMISSIONS 10
PART N- ORDER SOUGHT 30
PART V- LIST OF AUTHORITIES 31
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Overview
1. The Applicants' $6 million claim for damages for copyright and moral rights
infringement is based on a misunderstanding and misapplication of fundamental
concepts of copyright law and a failure to recognize what the Copyright Act (the
"Act") protects. They are attempting to use copyright to assert ownership of facts —
something copyright law has never done.
2. The Applicants' submissions fail to recognize: (1) that there can be no
copyright in facts; (2) the distûiction between protectable expression and non-
protectable facts; and (3) that what constitutes a '`substantial part" of any work
depends on its quality as expression.
3. While the documentary No. 4 Street of Ozcr Lady (the "Documentary") is
protected under the Act as a "dramatic work,"1 the facts contavied therein are not
protected by copyright law.
4. Facts relating to real people and real events are simply not protected by
copyright law. The young adult novel written by Ms. Witterick, My Mother's SecYet
(the "Book"), is a new and original work inspired by the true story of Franciszka
Halamajowa recounted in the Documentary, but consisting mostly of entirely
invented and imagined scenes and characters; as a whole, it is entirely different from
the Documentary in expression, content, form, feel and experience.
5. The oiily similarities that the Applicants raise do not relate to theû expression,
but to facts about events that occurred before the Applicants were born. None of the
Applicants' original expression lias been copied. The Applicants have used their skill
and judgment to shoot footage, record readings of passages from a previously-
existing translated and adapted diary, and then to compile and arrange and edit the
footage and narration and music (composed and recorded by others) to create the
Documentary. This is their expression and it is these elements that are protected by
copyright law. The events and people who lived them 70 years ago are real. They are
not fictional creations of the Applicants, and are not owned by them.
6. The Applicants are asking this Coiu-t to grant them a monopoly over the use of
the facts of the true story of Franciszka Halamajo~va, contrary to the most basic tenets
1 Copyright Act, RSC 1985, a C-42, s 2, definitions of"dramatic work" and "cinemato~-aphic work".
693
of copyright law. For as long as they have been writing them, authors of novels, short
stories, plays and other works have incorporated facts, ideas, details and
reminiscences taken from works of history, biographies, memoirs, diaries, letters,
interviews and journalistic reports into those works. A decision in the Applicants'
favour would drastically diminish the public domain and place ownership of history
in the hands of only those who provide its initial account.
PART I — STATEMENT OF FACT

7. The Applicants' Documentary is a "dramatic work" under the Act. It conveys
factual information and analysis relating to actual events.
8. The Book, written by the Respondent Ms. Witterick and published in Canada
by the Respondent Penguin Canada Books Inc.(now Penguin Random House Canada
Limited), is an original literary work. It is a work offiction targeted at young adults.
9. The determination of this Application can —and must — be made by directly
examining and comparing the two works ûi issue. Evidence that does not directly
relate to the two works is of no relevance to the legal analysis_ The Applicants' ad
hominem allegations of deception and dishonesty, in addition to being patently false,
unsubstantiated and hurtful, are irrelevant. From the outset, Ms. Witterick has stated
that she was inspired to write the Book after watching the Documentary, as was
reported in the first article published about the Book.2
10. There is no substitution for viewing the Documentary and reading the Book in
their entirety. However, below the Respondents set out brief summaries of each work
if only to provide more complete descriptions than those given by the Applicants.
"No. 4 Street of Our Lady" —the Documentary

11. The Documentary tits comfortably within the definition of "documentary"
recommended, for the pwposes of copyright law, in a White Paper written on behalf
of the Documentary Organisation of Canada: "any cinematographic work or sound
recording, the purpose of which is to convey factual inforniation and analysis relating
2 S. I{irchner,"A Holocaust story with a happy ending", Tl~e Canadian Jeivis/z Nei+-s (l April 2013),
Exhibit 8(1) to Affidavit of Judy Maltz sworn March 27, 2014("Maltz Affidavit"), Applicants'
Record, Vo12,Tab 8-8L, p 418 ni which Ms. Witterick acknowledges and praises the Documentary.
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to actual events or issues."3 There is no doubt that the Documentary conveys factual
infoi~rnation, including about how Franciszka Halamajowa took enormous risks to
hide fifteen individuals from three Jewish families, as well as a German soldier, on
her property in Sokal during the Holocaust.
12. The Documentary shows the literal and metaphorical journey of the survivors
and their descendants, and of the descendants of Franciszka Halamajowa, from Israel
and the United States to the place where the cenüal event binding them together
occurred many years before. Through footage of their reactions, feelings and
memories, it examines the effect of this central event —and of confronting and
exploring it — on the adult survivors and descendants six decades after the end of the
Second World War in a moving and effective way. It also uses footage of and
interviews with historians and Soka1 residents; narration from the diary of Moshe
Maltz, translated and adapted by Gertrude Hirschler;4 and the use of archival
material, family photographs, original music and cinematographic techniques.
13. It is Ms. Maltz's evidence that she deliberately chose to tell her story through
the visual medium of film as she "sensed that this particular Holocaust story could
have an even more profound effect on people if it were told visually."5 The
Applicants chose a documentary style that amplified the visuals ofthe journey to the
house in Sokal. Ms. Maltz described this journey and its importance to the
Applicants' vision and concept of the Documentary as a film at considerable length
under cross-exanlination, emphasizing it as a means of"bring[ing] the story alive."6 .
14. Ina 2008 application for funding, the Applicants state that the Documentary
(at the time with the working title "On the Side of Angels") will "demonstrate how
the past informs the present" and that, "[i]n the tradition of Cinema Verite, the
filmmakers move past the purely autobiographical to become catalysts of a process
3 H. Knopf,"The Copyright Clearance Culture and Canadian Documentaries: A White Paper on

Behalf ofthe Documentary Organisarion of Canada,"(November 22, 2006)at 17,
www.macerajarzyna.com/pages/publications/HI'K white~aper.pdf, Respondents' BOA,Tab 14.
4 The Applicants do not credit either Ms. Hirschler or the title of the translated diary, despite the fact
that they copied many passages from it verbatim. See Cross-Examination of Judy Maltz held on
Ja~ivary 2l, 2015, pp 70-76, Respondents' Record, Vo12,Tab 4,pp 250-256("Maltz Cross").
5 Maltz Affidavit, para 9, Applicants' Record, Vol 2,Tab 8, pp 169-170.
6 Maltz Cross, pp 23-41,Respondents' Record, Vol 2, Tab 4, pp 203-221.
695
that re-examines historical experience through a contemporary point of view."~ In an

earlier letter seeking funding, the Applicants note that "[t]he film also stands out in
that it focuses not only on how survivors and their children confront the past, but also
on how descendants of the rescuers view their legacy — an issue rarely, if ever,
explored in Holocaust literature and film."8
15. Critically, the Applicants' Documentary does not involve any invented
characters and it does not tell a story that is fictional in any respect. Factual
information is conveyed tluough footage of the unscripted spoken words of real
people or the narrated words ofthe translated and adapted diary of Moshe Maltz. The
Applicants' original expression, comprised of the exercise of skill and judgment that
went into the compilation and arrangement of the film footage and narrations with the
other epements of the film to create the Documentary, are protected. The facts
conveyed tluough this expression are not protected.
My 1Vlother's Secret —The Book

16. The Book is a fictional story that describes the courage of Franciszka and
Helena Halamajowa from the perspectives of four different fictional characters. The
story is told in the present tense during the War and in the fast-person from these four
perspectives, as the fictional events they describe occur. The Book is targeted at a
young adult audience and features narrators with young voices. It has no
contemporary references. The Book uses literacy devices and nal7ative tecluùques
such as imagery, metaphor, simile, symbolism, foreshadowing, backstories, framûig
devices, plots and subplots, and builds to a clima~c followed by a dénouement.
17. The Book's entire approach is completely at odds with that of the
Documentary, in which the real memories and reminiscences of real survivors and
descendants are centrally important. The expressive quality of the two works is
completely different and the experience of any reader of the Book bears no
resemblance to that of any viewer of the Documentary. Any resemblance between the
works lies solely in the common use of events that occurred long ago.
7 Exhibit 6 to Maltz Cross, p 4, Respondents' Record, Vol 2, Tab 4-6, p 437.

8 Exhibit 4 to Maltz Cross, Respondents' Record, Vo12, Tab 4-4, p 409.
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18. In writing the Book, Ms. Witterick wanted to honour the courage of
Franciszka and Helena, and wanted readers to l ow that it was based on a true story.
For this reason, she retained Franciszka and Helena's names and several facts about
their true story in the Book. These included the town in which they lived, that they
hid 7ewish families above their pigsty and under their kitchen floor, and that they hid
a German soldier in their attic, as well as other factual details.9 She has never denied
that in writing the Book she was inspired by and used some of the facts that she
learned fiom watching the Documentary.
19. While she kept to the basic outline of Franciszka's story and facts, Ms.
Witterick imagined Franciszka's and Helena's personalities and experiences, and
those of all of the other characters in the Book. As with countless works of fiction
that incorporate factual material — indeed virtually all fiction —facts and events about
the setting — in this case the Second World War and Franciszka Halamajowa —are
weaved into Ms. Witterick's fictional Book.
20. In the Book, Franciszka hides seven people from two Jewish families and a
pacifist German soldier during the Nazi occupation, all at approximately the same
time. The other main characters are Damian, Franciszka's son, and Casmir, Helena's
boss and romantic interest.
21. The first and last of five parts of the Book are told in the voice of Helena and
comprise more than 40% of the Book. The three middle sections are told from the
perspectives of Bronek, a young Jewish father who is hidden in the animal shed with
his wife and son;10 Mikolaj, an eight year old Jewish boy hidden under the kitchen
floor with his father and mother;ll and Vilheim,the pacifist German soldier.12
9 Affidavit of Jennifer Witterick, sworn July 10, 2014, paras 24-25, Respondents' Record, Vol 1, Tab
1,~ 5("Witterick Affidavit').
10 Bronek, who becomes his close-knit family's protector and provider at a young age, provides the
perspecrive of abig-hearted and loving brother, husband and parent to an adopted child who goes to
any length possible to protect his family: Witterick Affidavit, para 36, Respondents' Record, Vol. 1,
Tab 1, p 8.
11 Mikolaj gives a young child's first-hand view of the Holocaust and the comfort he takes from the
love ofhis parents: Witterick Affidavit, para 37, Respondents' Record, Vol. 1, Tab 1, pp 8-9.
12 Vilheim adds another perspective on the complications of war and its toll on all sides: Witteiick
Affidavit, para 39, Respondents' Record, Vol. i, Tab 1, p 9.
697
22. The Book develops the fictional Damian's character in great detail, especially
through the eyes ofthe fictional Helena, with whom he has a very close relationship.
In addition, Damian's death occurs in the middle of the War13 so as to create an
emotional break for each of the four voices telling the story. Each of the first four
parts ofthe Book concludes with the news of his death.
23. Themes such as the power of love to conquer fear, the power of optimism to
overcome despair, and the power of good to triumph over evil are developed
throughout the Book. Love, in particular, is a major theme and its centrality to the
lives and experiences of each of the four narrators is highlighted throughout. Ms.
Witterick specifically chose to begin and end the Sook with Helena's imagined voice
because she believed that her youth and the romantic sub-plot created for her would
appeal to a youth audience. The romance between Helena and Casmir is a major
component ofthe Book and is introduced even before the reader is aware that Helena
and her mother are hiding Jews on their property. The Book comes full circle at the
end with Helena and Casmir living happily together as a married couple.l~
24. In addition to the love between Helena and Casmir, the Book focuses on the
love between Helena and her brother Damian, between Mikolaj and his parents (and
the romantic love story between the parents), between Vilheim and his grandmother,
between Bronek and his parents, brother, wife and son.ls The Book also focuses on
the potential for love of one's enemy in featuring Vilheim's story so prominently.16
The Evidentiary Record

25. The Applicants have spent considerable effort in the proceeding, including in
theû submissions, personally attacking Ms. Witterick and mischaracterizing her
evidence. This is not relevant to the issue ofcopyright infringement.
13 As recounted near the end of the Documentary, Franciszka finds out about her son's death only
after she flees Sokal after flee War: See Amended Dialogue List, Tiuiecode: 02:13:21, Respondents'
Record, Vol. 3, Tab 6, p 663.
14 Book, pp 19 & 179, Applicants' Record, Vol 3, Tab 8-9B, pp 535, 615. As an indication of the
importance ofthis element to the narrative, Casmir appears or is menrioned in nearly one third ofthe
chapters in the Book.
15 Witterick Affidavit, paras 36-39, Respondents' Record, Vol 1, Tab 1, pp 8-9.
16 The Documentary includes almost no information about the unnamed German soldier hidden near
the end ofthe War by Franciszka.
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26. Ms. Maltz was distressed by the mere existence of Ms. Witterick's Book: she
"dreaded to see what liberties this total stranger had taken in telling my family
story."17 She did not read the Book until four months after receiving it.lg The
Applicants seek an order for delivery up for destruction of all copies ofthe Book.19
27. Ms. Maltz's hostility toward the Book has not abated; she has declined all
offers to be associated with it. In April 2013, shortly after the Book was fast
published by iUniverse, Ms. Witterick offered to acknowledge and/or include Ms.
Maltz's views in future printings of the Book?° Ms. Maltz never responded, leading
Ms. Witterick to believe that she did not want the Documentary to be associated with
the Book.2L Ms. Witterick's belief that Ms. Maltz was upset about the Book was
confirmed by Eli Rubenstein, spiritual leader of Congregation Habonim anal National
Director for March of the Living Canada, in the summer of 2013.22 Mr. Rubenstein
attempted to broker a resolution to the situation and suggested that 6,000 copies of
the Documentary be disti-ibuted to the North American participants in the 2014 March
of the Living, along with the Book.23 Ms. Witterick agreed with Mr. Rubenstein and
offered to purchase and donate 6,000 copies ofthe Documentary along with the 6,000
copies of the Book she had already donated.24 Ms. Maltz responded by saying that
she did not wish for Mr. Rubenstein to be involved and the matter was not pursued
further.25 Even after Ms. Maltz complained to G.P. Putnam's Sons, a renewed offer to
acknowledge the Documentary in the Book went unanswered26
17 Maltz Affidavit, para 22, Applicants' Record, Vo12,Tab 8,p 174.

18 Maltz Affidavit, para 26, Applicants' Record, Vo12,Tab 8,p 176.
19 Amended Notice of Application, p 6, Applicants' Record, Vol 1, Tab 3, p 75.
20 Witterick Affidavit, paras 77-78, Respondents' Record, Vol. 1, Tab 1, p 18; Maltz Affidavit,
Exhibit 7, Applicants' Record, Vol 2,Tab 8-7, p 369.
21 Transcript of Cross-Examination of Jennifer Witterick("Witterick Cross") held on January 20,
2015, p 560(lines 6-8), Applicants' Record, Vo17, Tab 13, p 1737.
22 Affidavit of Eli Rubenstein, sworn July 10, 2014, paras. 14-17, Respondents' Record, Vol 1, Tab 2,
pp 107-108["RuUenstein Affidavit"].
23 Ibid, paras. 14-17. See also Ms. Maltz's notes about lier conversation with Mr. Rubenstein about
the potential resolution: Applicants' Record, Vo13, Tab 8-15B, p 753.
24 Witterick Affidavit, para 80, Respondents' Record, Vol 1, Tab 1, p 19; Rubenstein Affidavit, para
15, Respondents' Record, Vol 1, Tab Z, p 107.
25 Rubenstein Affidavit, para 17, Respondents' Record, Vol 1, Tab 2, p 108; see also Applicants'
Record, Vo13, Tab 8-iSB, p 753.
26 Witterick Cross, January 20,2015, pp 562-563, Applicants' Record, Vol. 7, Tab 13, pp 1739-1740.
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28. Despite the Applicants' spni on the facts, Ms. Witterick's evidence on her
conduct and writing process27 is clear and has always been consistent:(1)she learned
about the Franciszka Halauiajowa rescue story from viewing the Documentary and
wanted to tell a fictionalized version of that true story in her own young adult novel;
and(2)as with authors of all fictional stories, as part of her creative process, she drew
on her imagination, her own experiences and various sources she had been exposed to
over the years,28 including facts she learned fiom the Documentary.29
29. Ms. Witterick wanted to develop a narrative that would appeal to young
adults30 and communicate the inspn~ing message that is central to Franciszka's
heroism, which she describes in the following way: "you do not have to be
extraordinary to make a difference; you can become extraordinary by making a
difference."31
30. The Applicants continually attack Ms. Witterick for her use of non-Jewish
names for her Book's characters. Ms. Witterick chose specific names for her
characters based on her personal view that the names she selected represented traits
she imagined her chazacters to have 3Z
31. Ms. Witterick did not vv~-ite the Book for profit and has donated all proceeds
to various charities.33 She wished to spread the heroic story of two very courageous
women,34 and, to this end, she has discussed the Book at numerous schools and
27 Witterick Affidavit, paras 44-73, Respondents' Record, Vol. 1, Tab 1, pp 11-17.

28 Witterick Affidavit, paras 11-13,42-48, Respondents' Record, Vol 1, Tab 1, pp 2-3, 10-12; Exhibit
C to Witterick Affidavit, Respondents' Record, Vol 1, Tab 1C, pp 32-35.
29 Ms. Witterick wrote most of the Book's manuscript in the months after she viewed the
Documentary in November 2011. In July 2012, she downloaded the Documentary and watched
sections ofit to confirm certain details for historical accuracy counter. See Witterick Affidavit, paras
65-67, Respondents' Record, Vol. 1, Tab 1, pp 16-17.
30 Witterick Cross, January 19, 2015, p 103 (line 13)- p 105 (line 2), Applicants' Record, Vol. 5, Tab
12, pp 1115-1117.
31 Witterick Affidavit, para 21, Respondents' Record, Vol. 1, Tab 1, p 4.
32 Witterick Cross, January 20, 2015, p 353(line 5)- p 354(line 22), Applicants' Record, Vo17, Tab
13, pp 1530-1531.
33 Witterick Affidavit, paras 101-102, Respondents' Record, VoI 1, TaU 1, p 24.
34 Witterick Affidavit, paras 19-21, 24, 100, Respondents' Record, Vol. 1, Tab 1, pp 4-5, 24.
700
Iibraries.35 The Book has been used as an educational tool, including as part of the
material distributed to Maxch ofthe Living pai-ticipants.36
Penguin Canada Books Inc.

32. In or around May and June 2013, G.P. Putnam's Sons, an imprint of Penguin
Group and based in the United States("Putnam"), expressed interest in publishing the
Book.37 In July 2013, Putnam acquired worldwide publishing lights to the Book from
Ms. Witterick.38 The Canadian publishing rights were then sublicensed by Putnam to
Penguin Canada Books, Inc.39 The Book was published separately in the US by
Putnam and in Canada by Penguin Canada Books,Inc. in September 2013.40
33. Penguin Canada has no role other than as asub-licensee of Putnam to publish
the Book in Canada. Contrary to the Applicants' assertion,~1 Ms. Witteiick did not
secure her contract with Putnam through the aegis of Penguin Canada.42 Despite
being US citizens with no apparent ties to Canada, the Applicants elected not to sue
the lead publisher ofthe Book located in the US,and instead sued only asub-licensee
in Canada.
PART II — POINTS IN ISSUE

34. The issues to be determined in this Application are as follows:
ISSiTE 1: Is there copyright in "small facts"?
ISSUE 2: Have the Applicants established that a substantial part of
their original expression has been reproduced in the Book?
ISSUE 3: Have the Applicants' moral rights been infringed?
ISSUE 4: Have the Applicants established entitlement to any
damages?
35 Witterick Affidavit, para 97, Respondents' Record, Vol 1, Tab 1, pp 23-24; Witterick Cross,
January 20,2015, p 363(line 14)— p 364(line 12), Vo17,Tab 13, pp 154Q-1541.
36 Witterick Affidavit, paras 53-55, 80, Respondents' Record, Vol 1, Tab 1, pp 13, 19.
37 Witterick Affidavit, para 72, Respondents' Record, Vol 1, Tab 1, p 17.
38 VJitterick-Putnam Publishing A~eement, dated July 18,2013, Respondents' Record, Vo13,Tab 8.
39 Ibid, para 37, Respondents' Record, Vo13,Tab 8, p 690.
40 Witterick Affidavit, para 73, Respondents' Record, Vol 1, Tab 1, p 17.
41 Applicants' Memorandum, para 32.
42 Witterick Cross, p 511 (lines 13-24), Applicants' Record, Vo17, Tab 13, p 1638.
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PART III — SUBMISSIONS

ISSUE 1: Is there copyright in "small facts"?
Convri~ht law protects only eznression
35. The Applicants allege that their copyright has been infi-inged through the use
of so-called "small facts", but none of their allegations involve a taking of their
on final expression. Copyright law protects originality and expression, not ideas or
facts. As the Supreme Court has explained, expression is defined by the exercise of
skill and judgment to produce something that is original:
The Act protects original literary, dramatic, musical, and artistic works. It
protects the expression of ideas in these works, rattier than ideas in and of
themselves. An original work is the expression of an idea through an exercise
of skill and judgment. Infringement consists ofthe unauthorized taking of that
originality.43
36. To succeed in an allegation of copyright infringement, it must be proven that
"tlie work or a substantial part thereof' has been reproduced without authorization.
The notion of substantial part is a flexible one, and a matter offact and degree:
"Whether a part is substantial must be decided by its quality rather than its
quantity." What constitutes a substantial part is determined in relation to the
originality ofthe work that warrants the protection of the Copyright Act. As a
general proposition, a substantial part of a work is a part that represents a
substantial portion ofthe author's skill and judgment expressed therein.4'
37. Whether the pant of a work alleged to have been taken is "substantial" must be
decided holistically and qualitatively. "Quality" is tied to the fundamental tenet of
copyright law that only original expression is protected.46 Infringement consists ofthe
unauthorized taking of originality,47 but unprotected elements, like facts or ideas, are
free for all to use and incorporate into new and original works48 The balance that the
Copyright Act seeks to strike "between promoting the public interest in the
encoluageinent and dissemination of works of the art and intellect and obtaining a
43 Cinar Corporation v Robinson, 2013 SCC 73 at para 24 (emphasis in original)["Cinar"],

Applicants' BOA,Vol. 9, Tab 20-3.
44 Copyright Act, s. 3(1).
45 Ci~zar, supra note 43 at para 26, Applicants' BOA,Vol.9, Tab 20-3.
46 Ibid.
47 Ibzd at para 24.
48 Ibid at para 23.
702
just reward for the creator" must give due weight to the "limited natice" of the
creator's rights 49
There is no copyright in facts, whether "large" or "small"
38. The Applicants argue that one ofthe most basic and long-established tenets of
copyright does not apply in this case. It is bite law fliat there can be no copyright in
facts, whether "large" or "small" and whether or not effort went into theû discovery.
This legal principle has been expressed in different ways by courts over the decades:
All human events are equally open to all, who wish to add or improve the
materials, already collected by others; making an original work. No man can
monopolize such a subject.so
There can be no copyright in ideas or information, and it is no infringement of

copyright to adopt the ideas of another or to publish information derived from
another, provided there is no copying of the language in which those ideas
have, or that information has, been previously embodied si
There can be no copyright in the facts of history or in their cluonological

sequence. Had "The Web" been published, the defendant Wells was as free to
consult and use it in the preparation of his work as the plaintiff was to consult
and use "The Encyclopaedia Britannica" or any other publication as a source
of information. Infringement of copyright in such cases must, as a general
rule, consist of the copying of the words of another in the order in which he
has used them. The use ofthe same historical facts or ofthe same ideas is not
enough.sZ
It is ... an elementary principle of copyright law that an author has no

copyright in ideas but only in his expression of them. The law of copyright
does not give him any monopoly in the use ofthe ideas with which he deals or
any property in them, even if they are original. His copyright is confined to
the literary work in whiçh he has expressed them. The ideas are public
property, the literary work is his own. Every oiie may freely adopt and use the
ideas but no one may copy his literary work without his consent.'3
...the protection afforded the copyright holder has never extended to history,
be it documented fact or explanatory hypothesis. The rationale for this
49 Galef•ie d'art du Petit Champlain i~ac v Théberge, 2002 SCC 34 at paras 30-32, Respondents' BOA,
Tab 5.
50 Matthe~vson v Stockdale(1806), 33 ER 103 at 104, Respondents' BOA,Tab 7.
51 Deeks v Wells, [1931] 4 DLR 533, 1931 CarswellOnt 247 (CA), at 3 (Carswell), per Riddell JA
(citations omitted), affd [1933] 1 DLR 353(JCPC), Respondents' BOA,Tab 3.
52 Ibid at 10(Carswell), per Orde JA.
53 Moreau v St Vincent, [1950] Ex. C.R. 198, [1950] DLR 713, 1950 CarswellNat 4 at para 8,
Respondents' BOA,Tab 8.
-12-
703
doctrine is that the cause of knowledge is best served when history is the
common property of all, and each generation remains free to draw upon the
discoveries and insights ofthe past.s~
39. The Applicants' submissions purport to sweep away decades ofjurisprudence

not with case law or legal treatises, but with a s~-page affidavit sworn by Professor
J.L. Granatstein, an expert in 20~' century Canadian military history, in which he
piuports to create a legal theory relating to "small facts" out ofthin airs'
40. Despite Prof. Granatstein's complete lack of expertise in — or even knowledge
of — copyright law,56 the Applicants claim that his opinion is "crucial" evidence57 No
reliance should be placed on it whatsoever.
41. The Applicants' case hinges on Prof. Granatstein's distinction between so-
called "large facts" and "sma11 facts". The Applicants argue that the 30 items
collected in a chart appended to Ms. Maltz's affidavit are protected by copyright law
because they are "small facts" as opposed to "large" ones.58 No such distinction exists
in law, as the Applicants' reliance on a military historian confines. Facts are facts and
no one owns copyright in them no matter their relative "size".
42. Not oiily is there no legal basis for the Applicants' claim of infiingement,
Prof. Granatstein does not cite any authority in support of his theory, instead
explaining that:
historians...are trained to distinguish between what must be cited in notes and
what need not be. The large facts are the commonly understood facts. The war
started on September 1St, when Germany invaded Poland. The small fact is Joe
Doakes did something on July 2°d, 1942.s9
43. Prof. Granatstein's comments about historians' training have absohrtely no
relevance to copyright law.60 His views regarding conventions related to plagiarism
54Hoehling v Universal City Studios Inc,618 F.2d 972 at 974(2d Cir.1980), Respondents' BOA,Tab 6
55 Affidavit of JL Granatstein, sworn May 14, 2015, Applicants' Record, Vol 4, Tab 11-A
("Granatstein Affidavit').
~6 Transcript of Cross-Examination of Jack Granatstein, held July 9, 2015, p 47 (lines 12-23),
Respondents' Record, Vol 3, Tab 5, p 541("Granatstein Cross").
57 Applicants' Memorandum, para. 9.
59 Granatstein Cross, p 50(lines 7-17), Respondents' Record, Vo13, Tab 5, p 544.
60 Prof. Granatstein's Affidavit should be liven no weight for a host ofother reasons: it is not a proper
responding expert report as it does not directly respond to the substance of Dr. Horowitz's expert
report (Granatstein Affidavit, paras. 20, 25; Granatstein Cross, p. 39-44); it opines on what
-13-
704
and source citation in an academic setting have no application either to copyright law
or to works of fiction.61 As the Applicants point out in their argument, the concept of
plagiarism includes the "wrongful appropriation or purloining ... of the ideas, or the
expression of ideas... of another."62 In contrast, copyright protects o~ expression
and does not protect ideas or information.
44. The Applicants directly concede that their claim amounts to an assertion of
copyright in facts,63 in contravention of one of the most basic principles of copyright
law. The Applicants' heavy reliance on Prof Granatstein's affidavit and on principles
relevant only to academic honesty —which are directly conhary to the principles of
copyright law — indicates strongly that theû Application has no foundation in law.
The Applicants' Convri~ht Adheres Only to Their Original Expression —Not to

The Underlvin~ Facts
45. The Applicants' original expression lies in the medium and manner of
storytelling they chose to use. Ms. Maltz is an award-winning print journalist64 and
researcher; Ms. Bird and Mr. Sherman are accomplished documentary filrnmakers.6s
They collaborated to make a documentary film. Ms. Maltz, who had experience only
as a print journalist until she made the Documentary,66 has emphasized how
important it was to use film as a platform and to tell the story of Franciszka
Halamajowa and ofthe people she saved "visually".67
46. The product of the Applicants' exercise of skill and judgment consists largely
of the composition of the elements of the Documentary: the footage of archival
consritutes "original work" deserving of copyright protection, assumes that Ms. Maltz's allegations
of copying are correct and concludes that there has been copyright infringement (Granatstein
Affidavit, paras. 19, ZO & 25; Granatstein Cross, p. 66 (line 347)); overall, it is a work of advocacy
(Granatstein Affidavit, paras. 19, 20, 23, 25); parts of it were drafted by the Applicants' counsel
(Granatstein Cross, p 30 (line 5) — p 31 (line 10). See Applicants' Record, Vol 4, Tab I1 and
Respondents' Record, Vo13, Tab 5).
61 In fact, he acknowledged that he does not cite sources in many of his own writings, all of which are
non-fictional, factual works: see Granatstein Cross, p 57 (linel l) — p 62 (line 22), Respondents'
Record, Vo13,Tab 5, pp 551-556.
64 Maltz Affidavit, para 3, Applicants' Record, Vo12, Tab 8, p 168; Maltz Cross, p 20 (lines 18-24),
Respondents' Record, Vo12, Tab 4, p 200.
65 Exlûbits 10 & 11 to Maltz Cross, Respondents' Record, Vo12, Tabs 4-10 & 4-11.
66 Maltz Cross, ~ 14 (line 25)— p 15 (line 7), Respondents' Record, Vo12, Tab 4,pp 194-195.
67 Maltz Affidavit, para 9, Applicants' Record, Vo12,Tab 8, pp 169-170.
-14-
705
material and family photographs, of the survivors and descendants in the US and
Israel and Sokal as they recall and encounter their shared past, the footage of
interviews with Sokal residents and Holocaust lûstorians, the recorded narrations
from Moshe Maltz's diary, the use of"B-roll", the use of music and cinematographic
and editing techniques, etc. Tluough their skill and jud~nent, the Applicants
compiled, selected and arranged these elements to give their film a distinct feel.~~ The
way in which they combined these elements achieves their original vision for the
theme ofthe film: the intersection of history and contemporary memory.
47. In advancing their claim, the Applicants ignore completely the very elements
and expression that make their Documentary an original work protected by copyright.
Instead theû aboument hinges on the demonstrably false premise that they can own
copyright in the facts ofthe story of Franciszka Halamajowa.
Cumulative Use of Facts Does not Establish Copyri6ht Infringement

48. The Applicants allege that the cumulative effect of the alleged similarities
amounts to the reproduction of a substantial part of their Documentary.69 However,
the only elements of the Documentary that the Applicants allege are similar in the
Book are facts, which are unprotected.
49. On a qualitative and holistic view, and in consideration of the significant
differences in expression, content, form, feel, and experience from the Documentary,
it is obvious that the Book is not a mere ûnitation and that it constitutes a new and
original work that does not infringe the Applicants' copyright. The Documentary is a
non-fiction film set in the present that reflects on the past to tell a story visually,
while the Book is a fictional work targeted to young people, told in the first person
from the perspectives of four characters, and emphasizing a theme of love. Both
works tell some of the facts of the story of Franciszka Halamajowa, but those facts
are all that they have in corrunon. There is no taking or use of anything owned by the
Applicants; use ofcommon facts is not copyright infringement.
68 Maltz Cross, pp 23-41, Respondents' Record, Vol 2, Tab 4, pp 203-221.

-15-
706
50. The Applicants draw particular attention to the Supreme Court's holding in
Cinar that the substan#ial similarity analysis must be a "truly holistic assessment."70
In that case, the defendants advocated the "abstraction" of Mr. Robinson's work "to
the essence of what makes it original" at the outset ofthe analysis.71
51. In this case, it is the Respondents who are urging a qualitative and holistic
approach, while the Applicants axe asking this Cotu-t to adopt an analysis that is at
odds with longstanding and well-established principles of Canadian copyright law.
Not only does the Applicants' argument neglect the context ofthe Documentary "as a
whole", it particularly ignores, minimizes and suppresses any and all features that
make it an original work. Their approach is just as incorrect as the one rejected by
McLachlin CJC. It is contrary notjust to Cinar but to the entire purpose of copyright
law to exclude from the substantial similarity analysis any consideration of what
makes a claimant's work original in the first place. The Applicants' argument
depends on the adoption ofthis distorted view ofthe law.
52. The use of information and facts, or other unprotected material, has no
bearing on the substantial similarity analysis. The substantial similarity analysis must
be conducted with a view to determining whether a substantial part ofthe Applicants'
protected original expression has been taken. This is exactly what McLachlin CJC
meant when she concluded that "the cumulative effect ofthe features copied from the
work must be considered, to determine whether those features amount to a substantial
part of Robinson's skill and jud€?ment expressed in his work as a whole."72
53. Copyright infringement cases typically involve the comparison of works that
are either both fictional, as in the case of Cinar, or both non-fiction or factual, as in
the cases of Hager or Slumber-Magic or CCH.
54. In a case in which the copyright in anon-fictional work was alleged to have
been infrûiged in Dan Brown's bestselling novel The Da Vinci Code,the England and
Wales Court of Appeal explained the importance of ensuring that only protectable
expression is counted in assessing substantial similarity:
70 Applicants' Memorandum, pa~•a 56, citing Cinar, at para 36.

71 Cinar,supra note 43 at paras 35-36, Applicants' BOA,Vol. 9, Tab 20-3.
721bid at para 36(emphasis added).
-16-
707
[155]Of course, it takes time, effort and skill to conduct historical research, to
collect materials for a book, to decide what facts are established by the
evidence and to formulate arguments,theories, hypotheses, propositions and
conclusions. It does not, however,follow...that the use ofitems of
information, fact, and so on derived from the assembled material is, in itself,
"a substantial part" of HBHG sim~ly because it has taken time skill and effort
to carry out the necessal-v research.
[156] The literary copyright exists in HBHG by reason of the skill and labour
expended by the Claimants in the oi7ginal composition and production of it
and the original manner or form of expression of the results of their research.
Original expression includes not only the language in which the work is
composed but also the original selection, arrangement and compilation of the
raw research material. It does not, however, extend to clothing information,
facts, ideas, theories and themes with exclusive property rights, so as to
enable the Claimants to monopolise historical research or knowledge and
prevent the legitimate use of historical and biographical material, theories
propounded, general arguments deployed, or ~;eneral hypotheses suggested
(whether they are sound or not or general themes written about.73
55. The distinction between expression and facts was also applied as part of a
substantial similarity analysis in a decision of the US District Court that is of
particular relevance to this Application. T'he court was asked to determine whether
one work of historical fiction about the life of Euphemia "Effie" Gray infringed the
copyright in two other works of historical fiction about the same person.
56. In CCH,the Supreme Court noted that in some instances American copyright
cases "may not be easily hansferable to Canada". However, this was immediately
followed by,"This said, in Canada, as in the United States, copyright protection does
not extend to facts or ideas but is limited to the expression ofideas."74
57. The basic legal principles applied in Effie Film are similar or identical to those
that apply in Canada. Many of these are set out at the beginning of the court's
analysis, including the fact that:
73 Baigent v The Random House Group, 2007 EWCA Civ 247 at pazas 155-156, per Mummery LJ
(emphasis added), Respondents' BOA,Tab 1.
74 CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 22, Respondents' BOA,
Tab 2[CCH"]_
-17-
~•
...coiu-ts "have disavowed any notion that `we are required to dissect [the
works] into their separate components, and compare only those elements
which are in themselves copyrightable." Rather,"we are principally guided by
comparing the contested [work's] total concept and overall feel with that of
the allegedly infringed work..."75
58. Of particular relevance to this case is the court's analysis and discussion of
originality and expression in a context that required consideration of works of
historical fiction. The court in Effie Filna engaged in a detailed analysis of the law and
how it should be applied in cases involving fictional works that incorporate or are
based on factual material. Consistent with the principle that facts and ideas are not
protected by copyright law, the court took particular care to ensure that substantial
similarity is shown through reference to elements, features and aspects that are
properly protected in copyright law.76
59. This analysis meant ensurin; that the elements that counted toward substantial
similarity did not include historical facts or interpretations. The court held that
infringement could be demonstrated through reference to fictional plot developments,
scenes, settings, and character traits; or to pace, theme, and narrative structure; or to
the arrangement of facts in the works —but that the use of the same or similar
historical facts does not count toward a finding of substantial similarity.~~
60. This Court must take a similar approach in this Application. The only
similarities between the Documentary and the Book that the Applicants can point to
are non-protestable facts. This cannot result in a finding of infringement.
ISSUE 2: Have the Applicants established that a substantial part of their

original expression has been reproduced in the Book?
The Applicants' Dressed Up Claims Fail to Establish Copying of Expression
61. Apart from their untenable assertion of copyright ownership in "small facts",
the Applicants attempt to dress up their allegations as copying of something other
than facts. In particular, they allege:
75 Effe Fib~7, LLC v Ponzerance, 909 F.Supp.2d 273 at 292(SD NY 2012), Respondents' BOA,Tab 4
(citations omitted)["Effre Filni"].
76 Ibid at 293-298.
77 Ibid at 298. The substantial similarity analysis beginning at 303 concenh•ated on comparing
protestable elements of the works ûi issue, with particular care taken with a number of central
scenes, pace and nan•ative structure, themes and central literary references, and characterizations.
- lg -
709
a. verbatim or neaxly verbatim copying;

b. copying of"real-life characters"; and
c. copying of"storytelling devices.".
Yerbatina or nearly verbatim copying
62. While their primary claim is that the 30 items listed in Ms. Maltz's chart~g are
"small facts" in which, contrary to all established law, they can somehow hold
copyright, the Applicants also make the sweeping allegation,79 including in the
chart's title, that they constitute instances of"verbatim or nearly verbatim copying."
63. "Verbatim," as English language dictional-ies record in nearly exactly the
same words, means "in exactly the same words" or "word for word."80
64. The 30 items in Ms. Ma1tz's chart are not illustrations of"verbatim or nearly
verbatim" copying. Rather, they are illustrations of the legitimate use of facts also
conveyed in the Documentary.
65. The Applicants' claim of 30 instances of "verbatim or nearly verbatim
copying" is frivolous and the title given to Ms. Ma1tz's 19-page chart("Passages
from Work copied verbatim or nearly verbatim in Book")is misleading. Ms. Maltz
herself appears to acknowledge the exaggeration ofthese claims, when she states that,
"All told, roughly 350 words were copied verbatim or nearly verbatim in the Book",81
representing a small fraction ofthe number of words in her chart.
66. Further, the Applicants do not attempt to identify which 350 words have been
copied verbatim., beyond pointing to three of the 30 items in their chart:$Z a fraction of
a fraction. None of these contains original expression protectable by copyright.83
67. The fast example amounts to a dictionary definition of Volksdeutsche and
nothing more.84 Obviously,the Applicants do not own the meaning of a word.
78 Applicants' Record, Vo13,Tab 8-1 I.

79 Applicants' Memorandum, para 2; Maltz Affidavit, para 26, Applicants' Record, Vol 2, Tab 8, p
176.
80 Shorter Oxford English Dictionary, 5th ed. sub verbo "verbatim", Respondents' BOA,Tab 15.
81 Maltz Affidavit, para.26, Applicants' Record, Vo12,Tab 8, p 176.
82 Maltz Affidavit, para 26, Applicants' Record, Vol 2,Tab 8,p 176.
83 Even apart from the fact that the words in the examples were not even authored by the Applicants,
but were taken verbatim from the translated and adapted diary of Moshe Maltz.
84 See Item #13 in the Respondents' Chart, Eachibit F to the Witterick Affidavit, Respondents' Record,
Vol 1, Tab 1-F, pp 86-87.
-19-
710
68. The second and third are examples of the legitimate use offacts that can only
be expressed in a limited number of ways.85 Ms. Witterick has given clear evidence
that she viewed sections of the Documentary after learning that it was available for
download for the purpose of adding certain details for historical accuracy.86 The two
examples of factual details she took from the Documentary at this time discussed in
her davit align with the second and third examples of allegedly "verbatim"
copying provided by Ms. Maltz: a list of commodities that Franciszka's son brought
to her every four weeks to trade for food and the specific reward for turning in Jews
to the authorities in Sokal. These are nothing more than statements of pure fact with
no expressive quality at all and are therefore not protected in copyright.
69. The only other possible example of similar language spoken or otherwise
appearing in the Documentary relates to seven words. Iii the Documentary, Fay
Mallcin states, "And the German said, `It doesn't matter. We'll get the mother later
anyway."87 In the Book, in a scene told from Bronek's perspective, the following
passage appears: "`Doesn't matter,' says the soldier. `We'll get the mother later."'88
In addition to comprising a common, everyday phrase("it doesn't matter")and being
de minimis, these words are not the Applicants' original expression, but the repetition
of words spoken by a German soldier in Sokal during the War 70 years ago.
70. The above examples constitute the Applicants' best evidence of "verbatim"
copying. Other items in the chart reinforce the unfounded nature of their claim. For
example, the Applicants extract a partial sentence from the Book("She feeds my
father with day-old news...")and allege that it is an instance of verbatim copying of
Herb Maltz's recollection that, "Mrs. Halamajowa brought him up newspapers, old,
some a week old, some a few days old, and he was able to see what's going on." This
is not use of Applicants' expression. Furthermore, when one looks at the text
surrounding the partial sentence in the Book, which the Applicants oruit, the
contextual and expressive differences are enlarged. Ms. Witterick's expression
85 D. Vaver, Intellectual Property Law, 2nd ed (Toronto: Irwin Law Inc, 2011) at 60, Respondents'
BOA,Tab 17.
86 Witterick Affidavit, paras 66 & 67, Respondents' Record, Vol 1, Tab 1, pp 16-17. See also Items
#12 and #19 in the Respondents' Chart, Respondents' Record, Vol 1, Tab 1-F, pp 85-86 & 92.
87 Amended Dialogue List, Timecode: 0127:59, Respondents' Record, Vo13,Tab 6, p 612.
88 Book, p 92, Applicants' Record, Vol 3,Tab 8-9B, p 572.
-20-
711
"feeds...with day-old news" is a metaphor that reflects her invented scenario of

Franciszka (whom she imagines to be illiterate in the Book) cleverly buying food
wrapped in newspaper so as to provide Dr. Wolenski with information about the War
without attracting suspicion by buying a newspaper herself.89
71. The Applicants rely on Hage~in support of an axgument that "interview
material" is subject to copyright protection.90 The analysis in Hager, a 1998 decision,
appears to be at odds with the Supreme Court's 2004 rejection of the "sweat of the
brow" doctrine. In addition, Hager would not help the Applicants establish
infringement, even if its outdated analysis were applied. Unlike in that case, there has
been no verbatim copying of an interviewee's dllect quotes.
72. The court in HageY held that the `'most valuable" parts of the plaintiffs book
were reproduced verbatim by the defendant in his own book:
the parts of[the plaintiffs] book that are most valuable to her were taken: the
dûect quotes from Shama Twain. I conclude that qualitatively a very valuable
and significant part of her work was taken.91
73. A significant reason why the numerous direct quotes copied verbatim were of
such qualitative value was that they were spoken by Ms. Twain, a celebrity at the
height of her fame. In addition to this, the court held that, in relation to the plaintiff
author's own written expression, there were several instances of "rearranging of
sentences, with additional material interspersed, while following the same concepts,
thought patterns and sometimes sentence structure.s92
74. The defendant author in Hager was held to have taken more than one third of
the plaintiff's chapter about Ms. Twain. That taking consisted of actual verbatnn
copying of Ms. Twain's quotes as lranscribed and published in a literary work by the
plaintiff and partly very close paraphrasing of the words written by the plaintiff
herself.93 In addition, a reader of the infringing parts of the defendant's work might
be given the impression that he had sat down to interview Ms. Twain, when that was
89 See Item #14 in Respondents' Chat,Respondents' Record, Vol 1, Tab 1F, pp 87-88.
91 Hager v ECW P~~ess Ltd(1998), 85 CPR (3d)289 at para 16, Applicants' BOA, Vol. 9, Tab 20-4
["Hager„]-
921bid.
931bid.
-21 -
712
not the case; not only did he repeat the direct quotes from the plaintiff's interviews,
he repeated details such as the plaintiffls observation of Ms. Twain's smile as she
recalls a particular memory as though ii were his own.94
75. There is no parallel to the facts of this Application. There has been no
verbatim copying of any interviewees' quotes, whether spoken by a celebrity or not.
76. However,there axe more fundamental reasons to treat the Hager decision with
caution. The White Paper written by counsel to the Applicants on behalf of the
Documentary Organisation of Canada expressed this caution in the following terms:
There is a problematic decision in Canadian case [sic] that held that the
copying of portions of an interview with Shama Twain constituted copyright
infringement [citing Hager]. That decision relied — perhaps too heavily — on
English law that has long conferred copyright protection to "sweat of the
brow", including the work of a short hand stenographer in setting someone
else's speech to paper. This is not consonant with Canada's overall stance on
the tlueshold of originality re~uûed for copyright protection as enunciated by
the Supreme Court of Canada.
77. The Respondents concur. The Supreme Court has rejected the "sweat of the
brov~' doctrine.96 Older rulings like Hager, in their focus on factors not relevant to
the expressive quality of works, do not reflect the canent state of Canadian law.97
Copying of"real-life characters"

78. The Applicants' allegations of similarities between "real-life characters" in
the factual Documentary and the characters in the fictional Book are nothing more
than a repetition of the Applicants' assertion of copyright in facts. They ignore the
crucial reality that the Documentary portrays real people, real facts, and real events in
a wholly factual way. In the guise of an assertion that "characters" have been copied,
as though there is no difference between fiction and non-fiction, the Applicants list a
seizes offacts that they claim to own,but wlûch, at law, they cannot.98
94 Ibid, see samples provided at para 14 ofthe decision.

95 K. Knopf,supra note 3 at p 19, Respondents' BOA,Tab 14.
96 CCH,supra note 74, Respondents' BOA,Tab 2.
97 In a recent landmark decision of the Canadian Copyright Board regarding provincial ~oveinment
tariffs, the Board held that to the extent that previous cases had evaluated criteria not related to the
expression of"skill and judgment, these were "not good precedent," with explicit reference to both
HaQe~• and U&R Tax Services. See discussion of "the current law" at paras 185-190 of Re
Reproduction in Litermy Works, 2015 CarswellNat 1792, Respondents' BOA,Tab 11.
-22-
713
79. The Applicants must be able to prove not that certain facts recounted in the
Documentary have been used in the Book, but rather that the Applicants' original
expression of those facts has been reproduced. A list of facts about or involving
actual people conveyed in the Documentary has no bearing on a copyright
infringement claim.
80. As the Applicants point out, courts have found that copyright can subsist in
fictional characters like Anne Shirley, where they are "cleaxly delineated, distinctive,
thorough, and complete."99 The case cited.by the Applicants provides examples ofthe
"detailed","vivid, unique and complete" descriptions of Anne's physical appearance
and character traits that appeaz in Anne of Green Gabtes.too Anne's physical
appearance and character traits were the product of LM Montgomery's imagination,
and the detailed descriptions in her novel were the product of her skill and judgment
as a writer. Together, and because the descriptions of this fictional character were so
detailed and complete,lol these constitute protectable expression.
81. The finding of substantial similarity in Cinar was based on a finding of
similarity between numerous fictional characters, as well as their fictional settings,
vehicles, and several "scriptwriting elements" present in two works, each constituting
fictional, animated children's television shows.102 In paz-ticular, several fictional
characters were found to have similar graphic appearances, similar names, similar
combinations of personality traits, and similar relationships among them;lo3 the house
on the island in which the shows were set104 and several vehicles that the characters
used were found to be similar in appearance in respect of unique features (for
99 Anne ofGreen Gables Licensing Authority Inc v fivonlea Ti~aditions Inc(2000),4 CPR(4th)289 at
para 121, Applicants' BOA,Vo19,Tab 20-2.
100 Ibid at paras 112-115.
101 It is also noted that "[a] requirement for copyright of characters in a literary work is that the
description in the work be sufficiently clearly delineated such that the character subsequently
becomes well known and widely recobnized." See ibid at para 111.
102 A review ofthe trial coT.ut's lengthy substantial similarity analysis (available in French only) is the
best way to appreciate the degree of the similarity in Cinar. That analysis spans nearly 50 pages,
however. The Court of Appeal's decision has a brief summary of the main similarities at para 100
(Robinson c Films Cinar i~c, 2011 QCCA 1361, Respondents' BOA,Tab 13).
103 See Robinson c Fib~is Cinar inc, 2009 QCCS 3793 at paras 502-61 i, Respondents' BOA,Tab 14.
1041bid at para 612.
- 23 -
714
example, in each, there was a submarine with a periscope that had two eyes};IOS in
addition, several scriptwriting elements, including the shows' logos and them use,
were found to be similar.~o6
82. Ms. Witterick wrote a story based on the actual facts that during the Holocaust
members of several Jewish families were hidden on a property in Sokal and saved by
aPolish-Catholic woman named Franciszka Halamajowa. "[S]toiytellers throughout
time have used history as source material for works of imagination,i107 and all works
of historical fiction consist of the interweaving of real and invented details, events
and people. Ms. Witterick has done what countless other fiction writers have always
done by incorporating facts into her own fully developed fictional characters los
83. For example, there have been dozens of works created about Anne Frank,
both fictional and non-fictional, but unless direct quotes constituting a substantial part
of her diary are reproduced (and for non-exempted uses), copyright permission from
the owner of copyright in the diary is not necessary. Words and passages in the diary
do constitute expression, but all are free to use facts about Anne Frank, including the
emotions and wishes and thouâhts she expressed in her diary.lo9
84. The Applicants have cited no authority that supports the unprecedented
proposition that one can copyright a real person in the same way that fictional
characters like Anne Shirley or Popeye or Robinson Curiosité might be protected by
copyright law.

107 Na~•ell v Freeman, 872 F.2d 907 at 915(9th Cir. 1989), Respondents' BOA,Tab 9.
108 For example, Dr. Wolenski, like Dr. Kindler, Kvas a prominent doctor in Sokal whose position
helped to save the hidden Jews from being caught. But in developing Dr. Wolenski's character and
the scenes in which he appears, Ms. Witterick drew on several other sources, including her own
husband. Ms. Witterick was inspûed by a scene in the film, Unforgiven, where the main character
takes control ofthe situation, when portraying Dr. Wolenski confronting Leszek the deliverymau.
109 See for example Horowitz Transcript, pp 37-38, Applicants' Record, Vol 8, Tab 14, pp 1943-
1944. The widely-laiown facts both that the copyright in Anne Frank's diary has been "vigorously
enforced" and that permission is necessary to "quote from the diary" were put to, and a~eed with
by, Dr. Horowitz in her cross-examination. See also allusion to this in Leshu Torchin, "Anne
Frank's Moving Images" in B. Kirshenblatt-Gimblett & J. Shandler eds, Anne Fra»k Unboz~nd
(Bloomington,IN: Indiana University Press, 2012)at 107, 118, Respondents' BOA,Tab 16.
-24-
715
Copying of"storytelling devices"

85. The Applicants argue that various "storytelling devices" have been copied
from the Documentary. These allegations are also groundless.
86. First, the Applicants allege that Ms. Witterick has copied the "device" of
telling "the story through the perspectives ofseveral different characters experiencing
the events rather than just one narrator."llo This framing is at such a level of
abstraction and vagueness as to render "similarity" meaningless. It is difficult to
overstate the differences between the means of "storytelling" employed in the two
works: one being a documentary film in the tradition of cinéma véritë,111 with
interviews with many of the persons involved in the events and use of archival
material and family photographs, and the other a work of literary fiction separated
into five distinct parts, four of which are largely concurrent with each other, and in
the first person voice offow~ different characters narrated as events are occurring.
87. Second, the Applicants allege that the Book and the Documentary end with
the same question. Professor Sara Horowitz provided expert evidence confirming that
almost all stories and accounts of Holocaust rescuers pose the question of why the
rescuers risked their lives to save Jews.112 Contemplation of this question is why we
share these stories and why it is so important that they be told.113 In any event, the
Documentary does not end by posing this question. Rather, it concludes by showing
photos and footage of Franciszka Halamajowa and her family, and of the survivors
and their descendants, interspersed with short synopses of the lives they went on to
lead after the end of the War, noting that the 15 survivors have more than 100
descendants, Tlùs conclusion is congruent with the Applicants' overall vision for
theû film as an exploration of the intersection of history and contemporary memory,
and of how the past informs the present.

111 E~chibit 6 to Maltz Cross, p 4, Respondents' Record, Vo12, Tab 4-6, p 437.
112 Affidavit of Sara R. Horowitz, affirmed March 19, 2015, Respondents' Record, Vol 1, Tab 3-1, p
144. Note that at para 14 oftheir Memorandum, the Applicants incorrectly suggest that this question
did not appear at the end of the Book's manuscript before Ms. Witterick downloaded the
Documentary from iTunes in July 2012. The draft dated June 19, 2012 clearly shows that this is not
true(see Applicants' Record, Vo16,Tab 12-10, p 1497).
113 See Witterick Affidavit, para 42, Respondents' Record, Vol 1, Tab 1, pp 10-11.
-25-
716
88. In contrast, the Book ends full circle with Helena, a young girl when the Book
begins just before the War,now as an adult, married and living a tranquil life after the
War in Switzerland with the man slle has always loved.
89. Third, the Applicants allege that the assignment of symbolic value to an apple
tree is copied. This allegation appears to be the result of a concerted effort to find
similarities between the works no matter how tenuous. In the Documentary, Herb
Maltz is shown pointing out the spot under a tree where his aunt Chaya Dvora Maltz
was buried after she died of tuberculosis.11a Immediately following this scene,
Franciszka's granddaughters are shown picking apples from their grandmother's
tree.t is Combined, these two scenes —which could not possibly be relevant to any
aspect of the story in the Book —make up less than one minute of the 90 minute film
and there is no other reference to an apple tree anywhere in the Documentary.
90. In contrast, the apple tree is used as a symbol of love, sacrifice, beauty and
goodness throughout the entire Book including at the following points:
• the Book opens with Franciszka bringing apples to the children from herjob,
a treat she hides from her husband, and Damian gives Helena his half ofthe
apple as a show of brotherly love (pp.4-5);
• Damian always brings Helena apples when visiting theû Sokal home(p 14)
and Damian surprises her on her 17`~ birthday with an apple tree(p. 14);
• Helena goes to the tree to grieve upon hearing ofDainian's death(p. 54; 98);
• the tree is associated with Helena and Casmir's blossoming romance: Helena
states that the fragrance from the apple blossoms makes it feel like only good
things can happen that day, which is followed by the start ofthem romance (p.
19); she later encloses an apple blossom in one of her love letters(p. 47);
• Helena gives apples to Bronek's family as a treat and Bronek remarks that he
knows it is very special (p. 96);
• Walter likes to count the apples to pass the time and Walter and Bronek spend
hours comparing and verifying their apple counts(pp. 96-97);
• Helena is upset when the German tanks break some ofthe tee's branches and
Franciszka reassures her that the broken branches will grow back(p. 157);
114 Amended Dialo?ue List, Tnnecode: 01:56:07, Respondents' Record, Vol 3, Tab 6, p 61
11~ Ibid. Timecode: 01:56:29.
-26-
717
• in the end, Helena plants an apple tree from the seeds kept from Damian's tree
at her home in Switzerland (p. 183).
91. The Applicants also allege that two events act as "storytelling devices" in both
works: a massacre at a brick factory and a raid on the ghetto. Again this amounts to
nothing more than an assertion of copyright in facts. None of the Applicants'
expression has been copied at all. In addition, there are several fundamental
differences between the brick factory and ghetto raid scenes in the Book and these
events as recounted in the Documentary. Ms. Witterick recalled these events fiom
watching the Documentary and weaved certain of the actual facts she recalled into the
scenes she imagined and porhayed in the Book. These differences are highlighted in
the Respondents' Chart.116
92. Finally, the Applicants amplify the fact that Franciszka Halaivajowa kept her
heroic acts a secret throughout her life after the end of the War into an "overriding
theme" ofthe Documentary as part of an attempt to claim some ownership in the title
of the Book.11~ It is not difficult to discern that the Book's title has nothing at all to
do with Franciszka's post-War reticence and humility, which is not even alluded to in
the Book. My Mother's Secret is the perfect title for the Book, given that it is told
primarily from the viewpoint of the fictional Helena, a young woman who was
helping her mother keep secret that she was hiding several Jews on her property
during the Holocaust, for fear of death. As a title to the Documentary, on the other
hand, it would have made no sense at all, given that the real-life Helena is only
mentioned in passing a handful oftimes during its 90 minutes.
No infi°ingement of copyright in compilation

93. The Applicants cite two decisions involving infringement of copyright in
original compilationsl~g but their relevance to this Application is not clear. Iii these
decisions, the works at issue were commercial or technical in nature, contained
elements found in many other similar types of work, and were almost exactly
116 Exhibit F to Witterick Affidavit, Items #2 & #5, Respondents' Record, Vol 1, Tab 1F, pp 71-79.
118 Slzu~zbe~•-~Yfagic Adjustable Becf Co Ltd vSleep-King Adjustable Bed Co Ltd(1984), 3 CPR (3d)
81, Applicants' BOA, Vol 9, Tab 20-6["Slarnaber-Magic"] and U cPc R TcLC Services Ltd v K & R
Block Ca~iada Inc(1995), 62 CPR(3d)257, Applicants' BOA,Vo19, Tab 20-7["U & R"].
-27-
718
identical to each other in even the minutest detail of theû elements and arrangement.
In this Application, the two works —one literary and fictional and the other
cinematobaphic and factual —are vastly and obviously different in their expression.
94. In Slumber-Magic, McLachlin J. compared two advertising brochures of
competitor businesses. She held that the plaintiff had copyright in the brochure and
the defendant's brochure was "identical" to the plaintiff's brochure, with only very
minor alterations.119 The slogans, list of ailments, testûnoiûals, diagrams, and tear-off
mail card, including the sizes and fonts of text used and the layout of the elements of
the brochures were all identical. Similarly, in U & R, the defendant's tax form was
found to be identical to the defendant's tax form "with only a very minor deletion"
and the addition of the defendant's logo.l'0 In both cases, in addition to being in
exactly the same foam, the infringing work was used in exactly the same way for
exactly the same purpose.
95. The Applicants appear to argue that because they have conducted research and
made choices about what facts to include and not include in their Documentary,
anyone else who uses the facts or elements they included in any way in another work
will have violated their copyright in an "original compilation". At paragraph 26 of
their Memorandtun they provide a list of what they call "elements"(in an attempt to
avoid using the word "facts", which is a more accwate label) that are all conveyed in
the Documentary. The mere inclusion in the Book of any or even all of these facts
does not equate to infringement in a "compilation''.
96. What is relevant in Slumber-Magic is the point that to infiinge the copyright
in a compilation, the claimant must go beyond showing that two works share
elements in common; rather, the specific way in which these are compiled and
ailanged and presented —their expression —must be substantially similar:
Copyright protects originality of forni or expression. A compilation takes
existing material and casts it in a different form. The arranger does not have
copyright in the individual components. However, the arranger may have
copyright in the foam represented by the compilation. "It is not the several
119 See Sh~naber-Magic, ibid at 83-84, 86. Apart fiom substituting the defendant's name at the top,
and replacing two words with synonyms, the only alteration the defendant made was to use a
different photograph— but one in which the plaintiff also owned copyright.
120 U & R,szsp~•a note 118 at 269, Applicants' BOA, Vo19, Tab 20-7.
- 28 -
719
components that are the subject of the copyright, but the over-all arrangement
ofthem which the plaintiff through his industry has produced."~21
97. The "over-all arrangement" of facts (or '`elements")has not been copied in the
two works in this Application. The way in which they are expressed in each work
could hardly be more different. The facts that Ms. Witterick has adopted and
incorporated into the Book are conveyed in different words, in different voices, in
different contexts, as part of different and often entirely fictional storylines, at
different times, and for different puiposes.122
Issue 3: No moral rights infringement
98. The Applicants seek $2 million in moral rights damages. They claim that their
rights to attribution — to be associated with the Book —and to the integrity of the
Dociunentary have each been infringed. The Applicants cite no case law in support of
their claim of moral rights infringement.
99. The trial decision in Cinar is directly on point on the issue of moral rights.123
In that case, because the plaintiff disagreed with and was offended by certain
alterations made by the defendants to a few of his original characters, the trial judge
held that his claim of a right to attribution had to fai1.12a
100. It is clear from the evidence of Ms. Maltz that she is openly hostile to several
aspects of the Book.
101. The Applicants' claim to the right of intebity is equally uiûounded. Indeed,
there appears to be no evidence in support of any aspect of this claim and the
Applicants' Memorandum does not even mention it. In any event, the holdings in the
trial decisiôn in Cinm°12' and in Prise de parole inc126 exclude any possibility that the
Applicants' claim can succeed.
121 CCH,supra note 74 at para 33, Respondents' BOA,Tab 2.

122 It is not even the case that the 30 "small facts" alleged to have been taken appear in the same order
in the two works.
123 Though the plaintiff was éntirely successful in his claims of copyright infringement at every level
of covet, his moral rights were found not to have been infiinged at trial uid he did not appeal.
124 Ci~zar Films inc c Robinson, 2009 QCCS 3793 at paras 946-949, Respondents' BOA,Tab 12.
125 Ibid at pa~•as 951-958.
126 Prise de Parole Inc v Gttéri~~, Édzteur Gtée (1995), 66 CPR (3d) 257 (FC TD) at paras 24-28,
-29-
720
Issue ~: No Entitlement to Damages

102. The Applicants have sued only Ms. Witteiick and Penguin Canada Books,
Inc., the sub-licensee of the Canadian publishing rights, for infi-ingement of the
Canadian copyright in the Documentary. Even ifthey were to succeed on the question
of infringement in this Application, they would not be entitled to any damages or
profits from any publisher of the Book in any other territory, including in the United
States, and they would not be entitled to any royalties earned by Ms. Witterick that
relate to the publication ofthe Book outside of Canada.12~
103. The Applicants have not established any entitlement to damages. There is no
credible evidence that the publication of the Book had any negative effect of any kind
on the public's interest in the Documentary or on its sales.128 There is also no
evidence that the Applicants were prevented fiom publishing their own book,
fictional or otherwise, about the Halamajowa rescue story.
104. The Applicants' implication that the Respondents are somehow hiding
documentation relating to sales of the Book is false.129 As ordered by Case
Management Judge Justice Locke, the proper time for such disclosure is at the
reference, if necessary.13o There is simply no basis for the Applicants' statement that
"it can be assumed there were signiûcant sales in Canada."131
127 The Applicants' reliance on ABKCO Music &Records Inc v Music Collection International Ltd,
[1995] RPC 657 shows a profound misunderstanding of that decision, which stands only for the
proposition that authorization of infiingement need not take place in the UK for a foreign
authorizing party to be sued in the LTK in respect of damaees incurred in the iJK. Further, as Prof.
Vaver points out, given the vastly different language of the LTK legislation, ABKCO should not be
followed in Canada even iu respect of its actual holding. See Vaver,supra note 85 at 152-i53, 177,
128 The only evidence is a claim that they have received far fewer invitations to screen the
Documentary since the publication of the Book in March 2013 (Maltz Affidavit, para 71,
Applicants' Record, Vol 2, Tab 8, p 198). However, this assertion is directly contradicted by the
very documentary evidence they say supports it. Exhibit 3(d) to the Maltz Affidavit (Applicants'
Record, Vol 2, Tab 8-3D, p 314) clearly shows that the number of screenings dropped off
dramatically well before die publication of the Book: there was only a single screening in all of
2012, after snore than 15 in each of the three previous years.
130 See Order dated May 5, 2015, para 8, Applicants' Record, Vol 1, Tab 5, pp 144-145.
131 Applicants Memorandum, para 44. For example, Ms.Witterick has testified that sales in Caziada
have not been significant. Witterick Cross, January 20, 2015, pp 469-470, Applicants' Record, Vol
7, Tab 13, pp 1645-1646.
-30-
721
105. The facts of this case simply do not call for any award of punitive damages,
even if infringement is proved. The contrast between the facts of this case and those
of Cinar is stark.
106. This Application is without basis. The position advocated by the Applicants is
not the law of Canada or of any other jurisdiction in the world known to the
Respondents. There is no doubt that copyright law protects the Documentary as an
original cinematographic work, but this does not grant them a monopoly over the
factual information conveyed in it.
PART N- ORDER SOUGHT

107. The Respondents request an Order:
a. Dismissing this Application; and
b. Requiring the Applicants to pay the costs of this Application.
AI.L OF WHICH IS RESPECTFULLY SUBMITTED THIS 15th day of

SEPTEMBER,2015. ..~
,,
~ __ _.._~
Peter M.Jacobsen
Tae Mee Park
Andrew W. MacDonald
Bersenas Jacobsen Chouest Thomson
Blackburn LLP
Lawyers for the Respondents

-31-
722
PART V- LIST OF AUTHORITIES

Case Law
1. ABKCO Music &Records Inc v Music Collection International Ltd,[1995]

RPC 657(CA), Applicants' BOA,Vo19,Tab 20-1.
2. Anne ofGreen Gables Licensing Authority Inc v Avonlea Traditions Inc
(2000),4 CPR(4th)289, Applicants' BOA,Vo19,Tab 20-2.
3. Baigent v The Random House Group,2007 EWCA Civ 247, Respondents'
BOA,Tab 1.
4. CCHCanadian Ltd v Law Society of Upper Canada,2004 SCC 13,
5. Cinar Corporation v Robinson, 2013 SCC 73, Applicants' BOA,Vo19,Tab
20-3.
6. Deeks v Wells,[1931]4 DLR 533, 1931 CarswellOnt 247(CA),afPd [1933]
1 DLR 353(JCPC),Respondents' BOA,Tab 3.
7. Effie Film, LLC v Pomerance,909 F.Supp.2d 273, Respondents' BOA,Tab 4.
8. Galerie d'art du Petit Champlain inc v Théberge, 2002 SCC 34, Respondents'
BOA,Tab 5.
9. Hager v ECW Press Ltd(1998), 85 CPR(3d)289, Applicants' BOA,Vol. 9,
Tab 20-4.
10. Hoehling v Universal City Studios Inc,618 F.2d 972(2d Cir. 1980),
11. Matthewson v Stockdale (1806), 33 ER 103(Ct Chanc), Respondents' BOA,
Tab 7.
12. Moreau v St Vincent,[1950] Ex. C.R. 198,[190]DLR 713, 1950
CarswellNat 4 at para 8, Respondents' BOA,Tab 8.
13. Nar-ell v Freeman, 872 F.2d 907 at 915 (9th Cir. 1989), Respondents' BOA,
Tab 9.
14. Prise de Parole Inc v Guérin, Éditeur Ltée (1995),66 CPR(3d)257(FC TD),
15. Re Reproduction in Literary WoYks,2015 CarswellNat 1792(Canadian
Copyright Board), Respondents' BOA,Tab 11.
16. Robinson c Films Cinar inc, 2009 QCCS 3793, Respondents' BOA,Tab 12.
17. Robinson c Films Cinar inc, 2011 QCCA 1361, Respondents' BOA,Tab 13.
18. Slumber-Magic Adjustable Bed Co Ltd vSleep-King Adjustable Bed Co Ltd
(1984),3 CPR(3d)81, Applicants' BOA,Vo19,Tab 20-6.
19. U& R Tax Services Ltd v H& R Block Canada Inc (1995),62 CPR(3d)257,
Applicants' BOA,Vol 9, Tab 20-7.
-32-
723
Secondary Materials
20. H. Knopf,"The Copyright Clearance Culture and Canadian Documentaries: A
White Paper on Behalf ofthe Documentary Organisation of Canada("DOC"),
(November 22, 2006), online:
http://www.macerajarzyna.com/pages/publications/HPK white~aper.pdf
21. Shorter Oxford English Dictionary, 5th ed,sub verbo "verbatim".
22. Leshu Torchin,"Atuie Frank's Moving Images" in B. Kirshenblatt-Gimblett
& J. Shandler eds, Anne Frank Unbound(Bloomington, IN: Indiana
University Press, 2012).
23. D. Vaver,Intellectual Property Law,2"d ed (Toronto: Irwin Law Inc, 2411).
-33-
724
APPENDIX A — STATUTES &REGULATIONS
- all relevant statutory provisions are provided in the Applicants' Memorandum of

Fact and Law
Court File No. T-500-14
FEDERAL COURT
NDY MALTZ,BARBARA BIRD and RICHIE SHERMAN

Applicants
-and-
JENNIFER L. WITTERICK and PENGUIN CANADA BOOKS

INC.
Respondents
RESPONDENTS'RECORD
(VOLUME 4 OF 4)
MEMORANDUM OF FACT AND LAW
(Filed this 15th day of September,2015)
BERSENAS JACOSSEN CHOUEST

THOMSON BLACKBURN LLP
Barristers, Solicitors
33 Yonge Street
Suite 201
Toronto, Ontario MSE 1G4
PETER M.JACOBSEN(LSUC#17803P)
TAE MEE PARK(LSUC#50851N)
ANDREW W.MACDONALD(LSUC #55589C)
Tel: 416-982-3800
Fax: 416-982-3801
Solicitors for the Respondents

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Court File No.

JUDY MALTZ,BARBARA BLRD and RICHIE SHERMAN

JENNIFER L. WITTERICK and PENGIJIlV CANADA BOOKS INC.

MEMORANDUM OF FACT AND LAW

BERSENAS JACOBSEN CHOUEST

Tae Mee Park(LSUC#50851N)

Solicitors for the Respondents

AND TO: NAGERA & JARZYNA LLP

Solicitors for the Applicants

JiJDY MALTZ,BARBARA BIRD and RICHIE SHERMAN

JENN~ER L. WITTERICK and PENGUIN CANADA BOOKS INC.

TAB DESCRIl'TION PAGE

lA Ex. A CD containing WPSU's Take Note probam dated 2~

1D Ex. D Email exchange between Ms. Maltz and Ms. 36

1F Ex.F Respondents' Chart 69

2. Affidavit of Eli Rubenstein,sworn July 10,2014 105 .

2A Ex. A Eli Rubenstein Bio 110

3. Affidavit of Sara R.fIorowitz, affirmed March 19,2015 116

3-1 Ex.l Expert Opinion of Sara R. Horowitz, dated 118

3-1B Ex. 1B Letter of instruction 174

3-1C Ex. 1C Certificate of Conduct of Expert Witnesses 178

PART I — STATEMENT OF FACT 2

PART I — STATEMENT OF FACT

"No. 4 Street of Our Lady" —the Documentary

3 H. Knopf,"The Copyright Clearance Culture and Canadian Documentaries: A White Paper on

that re-examines historical experience through a contemporary point of view."~ In an

My 1Vlother's Secret —The Book

7 Exhibit 6 to Maltz Cross, p 4, Respondents' Record, Vol 2, Tab 4-6, p 437.

The Evidentiary Record

17 Maltz Affidavit, para 22, Applicants' Record, Vo12,Tab 8,p 174.

27 Witterick Affidavit, paras 44-73, Respondents' Record, Vol. 1, Tab 1, pp 11-17.

Penguin Canada Books Inc.

PART II — POINTS IN ISSUE

PART III — SUBMISSIONS

43 Cinar Corporation v Robinson, 2013 SCC 73 at para 24 (emphasis in original)["Cinar"],

There can be no copyright in ideas or information, and it is no infringement of

There can be no copyright in the facts of history or in their cluonological

It is ... an elementary principle of copyright law that an author has no

39. The Applicants' submissions purport to sweep away decades ofjurisprudence

The Applicants' Convri~ht Adheres Only to Their Original Expression —Not to

Cumulative Use of Facts Does not Establish Copyri6ht Infringement

68 Maltz Cross, pp 23-41, Respondents' Record, Vol 2, Tab 4, pp 203-221.

70 Applicants' Memorandum, pa~•a 56, citing Cinar, at para 36.

ISSUE 2: Have the Applicants established that a substantial part of their

a. verbatim or neaxly verbatim copying;

78 Applicants' Record, Vo13,Tab 8-1 I.

"feeds...with day-old news" is a metaphor that reflects her invented scenario of

Copying of"real-life characters"

94 Ibid, see samples provided at para 14 ofthe decision.

105 Ibid at paras 625-631.

Copying of"storytelling devices"

110 Applicants' Memorandum, para. 16.

No infi°ingement of copyright in compilation

121 CCH,supra note 74 at para 33, Respondents' BOA,Tab 2.

Issue ~: No Entitlement to Damages

PART N- ORDER SOUGHT

AI.L OF WHICH IS RESPECTFULLY SUBMITTED THIS 15th day of

Lawyers for the Respondents

PART V- LIST OF AUTHORITIES

1. ABKCO Music &Records Inc v Music Collection International Ltd,[1995]

APPENDIX A — STATUTES &REGULATIONS

- all relevant statutory provisions are provided in the Applicants' Memorandum of

NDY MALTZ,BARBARA BIRD and RICHIE SHERMAN