No Infringement Through Rehashing Facts Taken from a Book Marketed as True Crime

The Federal Court recently provided us with a note-worthy decision relating to copyrights, in Winkler c. Hendley (2021 FC 498). This judgment relates to infringement proceedings as to a recent book that was written in large part by taking facts from an other book written about 70 years ago and entitled The Black Donnellys.

The main issue dealt with in this case involved determining whether borrowing facts from another book may, under Canadian law, amount to infringement if, say, the resulting narrative is basically the same. Though we know the answer to the foregoing question is that YES, similarities may amount to infringement if the structure and organization of a 2nd work is sufficiently similar to the original (including the sequence of events, etc.), this only goes for works of fiction. Indeed, whenever dealing with works of fiction, courts will generally be somewhat more critical of attempts by third-parties to copy facts and sequences of events, potentially finding infringement even when there has been no literal copy of text.

On the other hand, works which relate scientific or historical facts, for example, are treated somewhat differently by Canadian courts when assessing copyright infringement. Indeed, for these types of works, courts are generally opposed to allowing the original author from claiming exclusivity to the facts (included in his/her work), even if he/she may have been the first to publish about them. After all, human knowledge is built on reusing and discussing scientific or historical facts, for example -something Canadian courts have recognized over the years. In short, any author who pens something spelling out what may be described as scientific or historical facts should generally forget about any hope of claiming these very facts as his/her exclusive property; they basically become part of the common collective -essentially becoming part of the public domain.

The recent Winkler decision which we’re discussing in this post dealt with a work that was published years ago and thereafter promoted as part of the “True crime” genre, because it purported to tell the actual story of an specific Ontario family’s tribulations, at a certain time and place. Indeed, for 70 years during which the book at issue remained in print, its author and the publisher maintained it reflected actual events that really occurred during the XIXth Century, etc.

However, once the holder of the copyrights to the original book realized another author had seized upon the story of the Donnellys, litigation ensued in the context of which it soon became clear the book at issue may not have been as factual as one might think given how it has been marketed and promoted. Indeed, it turns out The Black Donnellys was not entirely factual; a large part of the events and “facts” described in the book having been invented by the author.

This lead the Federal Court in the decision at issue to refuse to entertain the notion that a 2nd author may have infringed the copyrights to the original book, under the circumstances of this case. Even though it was essentially a work of fiction, the court refused to consider the content of the original book as we would factual or historical works. Here, given how the original book was willingly presented and marketed, for so long, it simply did not make sense to allow the holder of the copyrights to suddenly claim that this book was really a work of fiction and, thus, deserving broader protection.

In effect, the Federal Court held here that the objective truth of what is contained in a book is not determinative, when it comes to ascertaining whether we should consider that specific work as being factual or fiction. It may suffice that the author held his/her work as being fact, to be able to rely on this, so as to be allowed to liberally borrow facts and narrative from such a work of authorship.

No, you can’t have your cake and eat it too.