Thursday, February 15, 2018

How a Polish Holocaust Story Became the Basis of a Controversial Copyright Case in Canada’s Federal Court

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), 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.