Even in today’s digital era of fake news stories, conspiracy theories and misinformation, there are limits on copyright protection when asserting infringement against others.
Winkler v. Hendley, 2021 FC 498 reaffirms the long-standing Canadian legal authority that copyright does not protect facts (e.g. non-fictional events in history and persons). On a summary judgment motion, the case for the Court involved whether there is copyright infringement in copying details from a prior literary work – published and perceived to be historically factual – where these details were represented by the author as facts but later called into question.
In answer, the Court stated – in finding no genuine issue for trial – that where facts are presented as historically accurate, the author claiming infringement cannot later claim copyright in those facts in a copyright infringement proceeding.
More specifically, this case involves two competing original (literary) works. The first by Thomas P. Kelley entitled ‘The Black Donnellys’ in 1954 about the infamous Donnelly family of Lucan, Ontario, and the 1962 sequel entitled the ‘Vengeance of the Black Donnellys’. The second, literary work by Nate Hendley entitled ‘The Black Donnellys: The Outrageous Tale of Canada’s Deadliest Feud’ in 2004. The second published work is alleged to have infringed copyright under the Copyright Act, RSC based on facts and events (later shown to be untrue) in the prior works.
More to the point, the defendant prevailed by arguing that although they admitted using the plaintiff’s works, the plaintiff’s account of the events was factual as historical non-fiction, such that copyright cannot be claimed in them. Therefore, the defendant did not infringe upon any protected work in ‘The Black Donnellys…’, etc..
The Court reasoned that this is a balance between creators of original works and users that “requires that the rule that copyright does not extend to ‘fact’ must include those matters that are plausibly represented to be facts, even if they may subsequently be shown to be untrue.”
In general, copyright protection does not extend to facts or ideas but to their original expression. The principle that there is no copyright in facts is long-standing in Canada. This principle applies in cases where the author’s work is plausibly represented as non-fiction, historic facts, even if it later shown as untrue.
It is worth remembering the general rule that there is no copyright in facts, even if later determined to be untrue, embellished or fiction.
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