In Maltz v Witterick, 2016 FC 524, the applicants alleged that a novel written by the respondent copied personal family stories featured in a documentary they created about a Polish woman, Ms. Francizska Halamajowa, who harboured and hid three Jewish families during the Holocaust. As such, they filed a Notice of Application pursuant to s 34(4) of the Copyright Act for infringement of their copyrights.

The applicants’ s 34(4) application was dismissed. Boswell J, of the Federal Court, found there to be no substantial taking or use by the respondents of anything owned by the applicants. In their submissions, the applicants stressed the distinction between “small facts” and “large facts.” Though they noted that “large facts,” such as “the Second World War began when Germany invaded Poland” do not hold copyright, they claimed that “small facts,” such as diary entries that are not publically documented, deserve copyright protection. Boswell J found this argument to lack merit, noting that “facts are facts; no one owns copyright in them no matter what their relative size or significance.”