There
has been a lot of news lately about Holocaust remembrance and a proposed Polish
law that would criminalize references to “Polish death camps” and complicity of
the Polish nation in atrocities carried out against the Jews during that
period. As the Washington Post reports
on February 2, 2018: “The law would essentially
ban accusations that some Poles were complicit in the Nazi crimes committed on
Polish soil, including in the Auschwitz-Birkenau extermination camp,
where more than 1.1 million people died. Germany operated six
camps in Poland where Jews and others that the Nazis considered enemies were
killed.”
Despite
the extremely dark side of what happened in in Poland before and during the
Holocaust, there are many stories about incredibly and extraordinarily brave
Polish people who risked everything to save Jews from the Nazis and Nazi sympathizers
in Poland. Many of these heroes have
been honoured as Righteous Among the Nations by the Israeli Holocaust memorial
institution, Yad Vashem. One such particularly poignant story concerns
Franciszka Halamajowa and her daughter Helena, two Polish-Catholic women who
saved 15 Jews and a German defector. Eight of them were family members of Judy
Maltz, who, together with Barbara Bird and Richie Sherman, made a wonderful
documentary about this story. They were my clients in an unsuccessful copyright
infringement lawsuit in the Federal Court of Canada alleging copyright and
moral rights infringement of their documentary.
I get asked a lot about the controversial case
of Maltz v. Witterick and Penguin,
2016 FC 524 (CanLII), http://canlii.ca/t/gr8mf. I’ve been asked to speak about it at a
law school. After this judgment of the Honourable Mr.
Justice Keith M. Boswell of the Federal Court, which was devastating to my clients,
and the substantial costs award against them of $39,200, they decided not to
pursue an appeal – though I did serve and file a Notice of Appeal (see below),
which outlines in some detail what would have been argued on appeal. For the
reasons discussed below, the appeal was subsequently discontinued.
In
response to this ruling, my clients decided to make their documentary freely
available online and indicate their rationale for doing so on Ms.
Maltz’s Facebook page, which provides a link
to the free video. The DVD can also be purchased online via Amazon, if you
want a higher quality version. Here’s the official website for the film.
In
a nutshell, my clients created an acclaimed film documentary in 2009 about a
very brave Polish woman, Francisca Halamajowa, who at enormous risk hid and
cared for three Jewish families and a defecting German solider in the pig sty,
attic, and a hole dug under the kitchen of her tiny little house in the village
of Sokal during WWII. A Toronto investment fund manager named Jennifer
Witterick saw the film at a screening in Toronto in 2012 and then wrote a book
called “My Mother’s Secret”, which was self-published in early 2013. It was
subsequently published by Penguin in several languages and several countries. The book was described by the author as a work
of fiction. However, it appeared for a long time on the Globe and Mail’s
non-fiction bestseller list. My clients alleged that Witterick’s book infringed
their copyright and moral rights. I will
not comment on the case or the decision any further at this time. I may do so
one day in greater detail. Meanwhile, interested readers may wish to refer to
documents provided below.
The
Notice of Appeal spells out in considerable detail why my clients believe that
the case was wrongly decided. Nonetheless, my clients chose not to pursue the appeal,
already having incurred the significant costs award for their loss in the Federal
Court. Unlike Ms. Witterick, my clients are not wealthy. Penguin obviously has huge resources. After their experience
in the Federal Court, my clients did not wish to risk further losses in terms
of costs payable to the other side in the event that the appeal might not have
succeeded. Because much of the trial judgment would likely have been argued to
be in the nature of fact finding, there was a real risk that an appeal might
have failed based upon the usual great reluctance of the Federal Court of
Appeal to second-guess the trial judge on findings of fact.
In
the meantime, it may be useful to those who are interested in the case,
including copyright law professors and their students, to have convenient access to the
following documents which have filed with the Federal Court and Federal Court
of Appeal and are on the public record:
Amended Notice of Application
dated September 23, 2014 which includes in
detailed chart form the 30 instances of what was alleged to be verbatim or
nearly verbatim copying. Note that this was an “application”, in contrast to an
“action”, and there was, accordingly, no document such as a statement of
defence responding to it directly.
The
above, of course, is by no means the entire record, which includes many volumes
of affidavits, transcripts of cross-examination, expert affidavits and
cross-examinations, and countless exhibits which are referenced in the
memoranda. However, these documents
provide further information for those interested in this case.
HPK
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