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The line between facts and expression in two recent copyright cases

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It is a basic tenet of copyright law that copyright does not protect facts or ideas. Data, information, facts, systems, opinions, or broad common themes cannot be anyone’s exclusive property.  Copyright does, however, protect the expression or compiling of facts in a fixed, original form. Recently, two cases were heard in Canada where litigants challenged the boundaries of what can be protected through copyright - with different results.  The decisions in Maltz v Witterick, 2016 FC 524 and Geophysical Service Incorporated v Encana Corporation, 2016 ABQB 230 both help to define the line between facts and copyright protectable expression.

In Maltz v Witterick, the applicant had produced a documentary about a woman who hid and saved Jewish families from the Nazis during the Holocaust. The respondent testified to seeing the documentary and being inspired to write a book called, “My Mother’s Secret”, that appropriated much of the historical content from the applicant's documentary. The applicant sued the respondent for copyright infringement, alleging that the respondent’s book copied personal stories and facts portrayed in the documentary in addition to narrative devices and the documentary’s structure.

Both parties relied on expert evidence in support of their arguments. Of particular note in this case was the respondent’s expert evidence which attempted to discern between "large facts" and "small facts" in opining that the "small facts" taken from the documentary such as the details from one’s diary entry were subject to copyright protection whereas the “large facts” such as commonly known historical events, were not. The Federal Court ultimately held that historical facts copied from the documentary, large or small, did not give rise to copyright infringement as the facts were not original and there had been no substantial taking of the work’s original elements. The Court held that “facts are facts; and no one owns copyright in them no matter what their relative size or significance” (at para 31). This case is quite clear that copyright does not subsist in facts themselves – no one can claim exclusive rights to the telling or retelling of history. These facts are nothing more than mere ideas that form the basis or foundation of expression.

On the other hand, the way that facts are compiled, conveyed and expressed can be the subject of copyright protection. In the recent Alberta Court of Queen’s Bench decision in Geophysical Service Incorporated v Encana Corporation, the Court held that raw and processed data collected from seismic surveys constituted protectable works under copyright law. In this case, the plaintiff carried out marine seismic surveys and licensed the data it collected. In order to carry out its surveys, the plaintiff required a government issued license to carry out its work. A condition of the license stated that data generated from the surveys was the exclusive property of the government for five years and would only then become public. The plaintiff argued that this regulatory regime infringed on its copyright in the data that it collected.

Among the many issues before the Court in this complex case, the plaintiff’s position raised the issue of whether the raw data collected was simply factual information and therefore not protectable under copyright law. The defendants in this case argued that the plaintiffs were seeking to obtain exclusive rights over facts, information, or knowledge to which copyright does not extend. The Court, however, disagreed, holding that the seismic data is not raw fact but an expression of the plaintiff’s view of what the subsurface of the surveyed areas represents. The raw data was found to have been carefully collected, selected through the exercise of a complex series of choices and arranged in a very particular fashion, rendering it a compilation of data which was expressed in an original fixed work and entitling it to copyright protection. In making this decision the Court was careful to uphold the important distinction between ideas and expression stating that the facts themselves, the rocks, are still at the bottom of the sea available for anyone else to survey.

Whether it is the underlying facts that make up our history or the rocks that make up our earth, these basic facts are not protectable by copyright. It is only when they are expressed in a fixed original work, a compilation, documentary or novel, that they become protectable through copyright.

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