[HN Gopher] Who owns the copyright to my medical images? (2018)
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Who owns the copyright to my medical images? (2018)
Author : jlund-molfese
Score : 112 points
Date : 2022-05-15 15:01 UTC (7 hours ago)
(HTM) web link (shkspr.mobi)
(TXT) w3m dump (shkspr.mobi)
| zugi wrote:
| The idea that every piece of trivially copyable information
| should have an "owner" is the root problem here. No one needs to
| "own the copyright" to these images at all. Copyright is for
| "creative works" and should not apply here at all.
|
| So the NHS can use them for their purposes like monitoring trends
| across patients, the manufacturer can use them for their purposes
| like testing their machine, and you can use them for your
| purposes - even post them to your social media if you're so
| inclined. Other rules like protecting patient confidentiality may
| apply to the NHS and the manufacturer, but copyright should not
| apply.
| [deleted]
| sixothree wrote:
| I want to point out that in the United States, patients have
| access to their health data via API using open standards that are
| free and accessible for developers.
|
| This is now.
|
| There is a huge lack of applications that make use of these APIs
| and the opportunities to improve patient's managing their own
| health are enormous.
|
| You can start here:
|
| http://hl7.org/fhir/
|
| (and maybe click on Resources to get an idea of what this is all
| about).
| kdtop wrote:
| U.S. doctor here. I think "ownership" is not the correct way of
| thinking about this. I would argue that "access" is the better
| concept. If a dentist creates an xray in his office, then she
| should have access to the image to be able to prove that she
| provide standard-of-care treatment should claims of malpractice
| be leveled. A patient of this dentist should also have ready
| access to this as it is their body and their information. And
| perhaps an insurance company may require that they have the right
| to access the image and ensure the dentist is no submitting
| fraudulent charges. And many more examples could be created.
| Throw in privacy considerations adds yet another wrinkle. Again,
| I think "ownership" or "copyright" is not the best concept.
| Teever wrote:
| At the end of the day property rights and the legal system
| deciding who has property rights are the way we solve all
| problems.
|
| I understand that there are complexities in these medical
| scenarios that aren't common place but I'm highly skeptical of
| the idea that we can't apply traditional ownership ideas to
| medical records.
| bee_rider wrote:
| I think this depends on how generalized and expansive you
| consider "traditional ownership ideas" to be. As GP notes,
| multiple people have different stakes in these documents. For
| example, the patient has privacy concerns which must be a
| pretty high priority, the doctor has a need to do business.
|
| This can exist in our legal system of course, in the sense
| that the legal system can host arbitrarily complicated
| licenses and contracts, but it isn't obvious (to me at least)
| that this is the best framework.
| zabaki wrote:
| Hi kdtop. I really appreciate your input, and I believe that
| both "right to access", "ownership to data" and "copyright" are
| 3 different concepts that are fairly interesting.
|
| Speaking from a health tech product manager perspective, then
| it has been interesting to see how must patient data was stored
| on local servers that the doctor purchased, and had stored at
| their clinic.
|
| One could argue, that since the doctor owns the server, wrote
| the data, then the doctor might also be the "owner" of the
| data.
|
| That does not mean the patients shouldnt have _access_ to the
| data, but traditionally then it was much harder, to get access
| to that data.
|
| With more services going online, the data is no longer stored
| on servers the doctor purchased, and even though the doctors
| (or the clinic) created the data, ownership might not be as
| easy to pin point.
|
| If journal notes (aka patient data) is copyrighted by the
| clinic, then the patient has no "right" to create copies of
| their medical data, nor do they have any right to share their
| medical data with others.
|
| In part, i agree with you that "access" is a important
| consideration, but it is ideally important for patients to
| understand if their medical data is copyright protected, as
| that limits the patients ability to legally share information
| about their medical history.
| joshvm wrote:
| A UK private dentist gave me both bitewings and the pano for my
| Antarctic medical. On the other hand I wasn't allowed my gall
| bladder ultrasound from a private hospital or my chest xray from
| the city hospital (but they gave me my ECG as a printout). I
| remember my gran always used to come home with her chest xray
| films. I can sort of understand the ultrasound as it's difficult
| to interpret, but could you GDPR it out of the hospital? I think
| the chest xray they just sent a summary to my doctor and not even
| the image. I assume they're worried about litigation.
| AlphaGeekZulu wrote:
| tl;dr:
|
| In Germany, the images are health data, not art, copyright does
| not apply, All health data belongs to the patient. Medical
| personal involved in the creation is authorized by the patient
| and bound by medical secrecy.
|
| I believe, in Germany, the images are not considered pieces of
| art to which copyright would apply.
|
| They are rather defined as patient's health information which is
| very rigorously protected by law, especially, but not only, by
| General Data Protection Regulation. The patient authorizes the
| doctor to create the images (a written consent that is secured
| during patient admission). All medical data, including the
| images, are object to medical secrecy! They are typically not
| even accessible for the health insurance - a clearing
| organisation ("Medizinischer Dienst") will resolve disputes
| between insurance and medical provider in an anonymized way.
|
| Any use of medical data for research, publication etc, needs to
| be authorized by the patient and anonymized. Any transfer of
| medical data from one medical provider to another (for example
| between hospital and GP) needs to be authorized. There are clear
| legal rules, how long the technical creator has to keep the data
| and who is allowed to access them for which purpose. Violation of
| medical secrecy is defined as felony and penalized accordingly
| under criminal law (copyright violations, in contrast, are
| considered delicts under civil law).
|
| The strict laws about medical secrecy are one of the major
| difficulties for digitalization of the German Health System. Any
| software that deals with medical data of any sorts is legally
| defined as "medical product", which has to apply to strict rules
| of security, secrecy and quality management. Failing this rules
| as a software developer/company or service provider can have
| severe legal consequences. Critical components - for example for
| the electronic exchange of medical data between providers of
| medical services - are therefore developed on a federal level
| with large complexity and endless delays.
|
| In any case, the patient is the sole owner of the data and can
| request it at any time from the medical provider. The handover
| might come with a fee, especially if the data has to be prepared
| in an elaborate way - like the production of Dicom-CDs or the
| like and this depends on the contract with the health insurance
| company. The patient is not paying for the data or the creation
| of it, though, but for the effort of the handover (could even be
| postage).
| lmc wrote:
| https://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Medic...
| sixothree wrote:
| We should also add
|
| https://www.healthit.gov/topic/information-blocking
|
| https://www.healthit.gov/topic/patient-access-health-records...
| [deleted]
| antihero wrote:
| Surely the dentist owns the copyright or has agreed to forfeit it
| through whatever contract they have with the equipment company?
| If a photographer takes a picture of people they have no claim on
| the copyright.
| grishka wrote:
| But taking a picture with a camera involves creativity, while
| medical imaging equipment merely lets the doctor look inside
| your body. It visualizes what's already there. I don't think
| copyright should apply here at all. (and I also think copyright
| is in a dire need of some serious reforms, like drastically
| shortening its term and making it non-transferable)
| makeitdouble wrote:
| Would it be copyrightable in the first place?
| sixothree wrote:
| No. Absolutely not.
|
| A clinician's ability to use medical data is governed by the
| patient (barring certain exceptions).
| stefan_ wrote:
| Careful, many places recognize a right to your own picture and
| while those do not confer copyright, they allow controlling
| redistribution (and in many cases, the very act of taking the
| picture requires consent).
| andix wrote:
| In my country in Europe the solution is quite easy: I have the
| right to get all papers and images from my doctors within 10
| years of creation.
|
| But I have to pay the doctor the expenses, if there is some work
| involved (like burning a CD or buying a flash drive - bc of
| security reasons they don't let you connect yours, you need to
| buy a new one).
|
| If you have some kind of 3d images (also dentists create them
| nowadays), there is usually some kind of licensed viewer software
| on the disk, where you can view just your own images. And as far
| as I know, the doctors don't have to pay a license fee for it.
| It's included with their software. And it is a feature they need,
| to comply with the law, that they have to give images to the
| patients upon request.
| dec0dedab0de wrote:
| Jimbo dicom viewer is pretty good at viewing different medical
| images
| LosWochosWeek wrote:
| > In my country in Europe the solution is quite easy: I have
| the right to get all papers and images from my doctors within
| 10 years of creation.
|
| This doesn't answer the question in the article tho. The
| question isn't "Who has the rights to a copy of my medical
| images". It's "Who owns the copyright to my medical images".
|
| To answer that question, you'd first have to find out if your
| medical images are even protected by copyright in the first
| place. The answer to this question depends wholly on the
| picture itself.
|
| Let's say a medical image of yours is indeed protected by
| copyright, then -- even in your country in Europe (regardless
| of which country it actually is) -- the copyright holder is the
| person who took the image. Not you. It may very well be that in
| your country this copyright is restricted by other laws (i.e.
| Personlichkeitsrecht in Germany).
| traceroute66 wrote:
| > This doesn't answer the question in the article tho. The
| question isn't "Who has the rights to a copy of my medical
| images". It's "Who owns the copyright to my medical images".
|
| Yes, but that's kind of the point .... the blog post was
| asking the wrong question.
|
| In the context of the blog post, "but copyright" is BS and
| the staff member should have been pulled up on it.
|
| Reason ? GDPR. In Europe access to "personally identifiable
| information" is basically a god given right, saying "no" is
| not an option. Therefore ..... X-Ray linked to Patient Record
| = clearly PII = access granted. End of story.
|
| The providing entity has the right to charge a limited fee
| for "admin" but that's it.
|
| _ALSO_ From a legal perspective, what contract the provider
| has signed with the equipment manufacturer is _IRRELEVANT_.
| The patient 's legal relationship is with the healthcare
| provider. The onus is on the healthcare provider to ensure
| they are covered downstream for GDPR release, but lack of
| downstream coverage _IS NOT_ an excuse to withhold GDPR
| release.
| wyldfire wrote:
| > the copyright holder is the person who took the image. Not
| you.
|
| But it could be interesting to think about whether a dental
| X-ray is "your likeness". So even if the dentist holds the
| copyright, their copyright is burdened/encumbered by the fact
| that it's a "picture of you". Unless you sign away that right
| in exchange for treatment, the copyright might not be that
| useful.
| [deleted]
| andix wrote:
| We don't have the concept of copyright.
| sholladay wrote:
| That is... unlikely.
|
| https://en.wikipedia.org/wiki/Copyright_law_of_the_European
| _...
| andix wrote:
| What I meant to say was, that we don't have the concept
| of transferable copyright.
| LosWochosWeek wrote:
| How does that tie into what I explained?
| kevin_thibedeau wrote:
| This isn't a creative work so the applicability of
| copyright is dubious.
| LosWochosWeek wrote:
| How would you know? Whether or not something is protected
| by copyright is not something you can asses with a
| blanket statement. Medical images can definitely be
| protected by copyright.
| littlestymaar wrote:
| Can there exist medical images protected by copyright?
| Definitely I'm you can even find an image made by a
| photocopier that can be protected by copyright, but that
| doesn't mean photocopies are usually so.
|
| You're gonna have a hard time convincing a court that
| your dental radio was in fact creative art.
| technothrasher wrote:
| I don't know of any country in the world that doesn't at
| least have a concept of copyright, and the vast majority of
| them have signed international treaties. Maybe Eritrea,
| Iran, Iraq, Somalia are exceptions? But those aren't in
| Europe.
| marvel_boy wrote:
| Yes, we have.
| chii wrote:
| > the copyright holder is the person who took the image.
|
| only if you didn't contract that person to take the image for
| you. So it makes sense, imho, that the person who paid for
| the image to be taken to own the copyright.
| dctoedt wrote:
| Unfortunately it's not that simple under U.S. law: Under 17
| U.S.C. SS 201, the image-maker (more likely, his/her
| employer) is considered the "author," and thus will own the
| copyright. See
| https://www.law.cornell.edu/uscode/text/17/201.
|
| Exception #1: The contract could provide for the image-
| maker to assign the copyright to the image subject. See 17
| U.S.C. SS 204,
| https://www.law.cornell.edu/uscode/text/17/204.
|
| Exception #2: The parties could sign a written work-made-
| for-hire agreement before the image is created, IFF the
| work is specially ordered or commissioned for use * as a
| contribution to a collective work, * as a part of a motion
| picture or other audiovisual work, * as a translation, * as
| a supplementary work, * as a compilation, * as an
| instructional text, * as a test, * as answer material for a
| test, or * as an atlas. See 17 U.S.C. SS 101,
| https://www.law.cornell.edu/uscode/text/17/101.
|
| For the purpose of Exception #2 "supplementary work" is a
| work prepared for a publication as a secondary adjunct to a
| work by another author for the purpose of * introducing, *
| concluding, * illustrating, * explaining, * revising, *
| commenting upon, or * assisting in the use of the other
| work, such as * forewords, * afterwords, * pictorial
| illustrations, * maps, *charts, * tables, * editorial
| notes, * musical arrangements, * answer material for tests,
| * bibliographies, * appendixes, and * indexes; and an
| "instructional text" is a * literary, * pictorial, or *
| graphic work prepared for publication and intended to be
| used in systematic instructional activities. See 17 U.S.C.
| SS 101, https://www.law.cornell.edu/uscode/text/17/101.
| LosWochosWeek wrote:
| This depends on your country and specific copyright laws.
| These differences exist mostly between common law and roman
| law countries.
|
| In Germany there is a distinction between copyright holder
| (Inhaber des Urheberrechts) and the entity that is allowed
| to act on the copyright (Inhaber des Nutzungsrechts). If I
| take a picture that you contracted me to take, I'm the
| former and you're the latter.
| GuB-42 wrote:
| Same thing in France.
|
| The one who took the picture has moral rights, no matter
| who hired whom. These rights are for life and not
| transferrable, you have them whether you want it or not.
| It also means you can't put your work in the public
| domain. These are "respect the author" rights that can be
| use if someone defaces you work for instance. Parody and
| satire are exceptions.
|
| The one who hired the one who took the picture has
| patrimonial rights if the contract says so. Patrimonial
| rights are essentially the right to make money and the
| closest to US copyright. These are transferrable.
| briandear wrote:
| Actually, absent a work for hire agreement, that isn't true
| [in the US.] I used to be a contract photographer for
| Reuters, Time, and a bunch of other places you've heard of
| and my standard agreement was a day rate, and the client
| would have rights to the specific photo they published. All
| the outtakes were mine and I subsequently could sell those
| through an agency. On other assignments, specifically
| corporate and advertising, those would often be a work-for-
| hire agreement in which case they owned everything I shot.
| Of course I charged a lot more for those assignments
| because I wouldn't be able to make residuals from agency
| sales. An example is I photographed Ken Lay for Enron as a
| work for hire. So when the Enron scandal hit, I couldn't
| sell anything from that shoot. Another assignment was a
| Bush family portrait for Reuters in 1998. I was able to
| sell my outtakes and that made me a pile of money during
| the 2000 presidential campaign since there was no work for
| hire agreement. And the Bush's didn't have any rights to
| those photos despite being the subject even though I shot
| it in their family home.
|
| The point is that work-for-hire has to be explicit. For
| medical imagery, it would seem that the creator of the
| images would have the rights, but HIPAA would preclude them
| using them unless there was a specific release (which is
| common in teaching hospitals.)
| blowski wrote:
| Photographer, software engineer, and restauranteur.
| That's quite a career! Any stories?
| _Algernon_ wrote:
| >CD or buying a flash drive
|
| I guess on the positive side, they're not faxing it anymore.
| db48x wrote:
| Works the same way over here, though the software is invariably
| Windows-only, and proprietary. I was able to find a viewer for
| the xrays I recently got, but I suspect that one day I'll be
| the one who has to write the viewer for others to download. I
| don't recall paying anything extra for the cdr it was burned
| onto, or for the receptionist's time.
| andix wrote:
| You're usually getting the standardized DICOM images too. I
| never managed to properly view them with open source
| software.
| figomore wrote:
| You can use InVesalius
| https://github.com/invesalius/invesalius3
| nick__m wrote:
| slicer.org is a great open source viewer, the learning
| curve is something but the results can be impressive.
| mlyle wrote:
| The data formats are largely standardized within DICOM and
| there's open source viewers that do a passable job of viewing
| the imagery. https://medevel.com/10-open-source-dicom-
| viewers/
| prepend wrote:
| This seems pretty dumb and an excuse for doctors to have
| expensive systems to retrieve and disburse records.
|
| It should be near zero to deliver these records. Or at least
| marginally zero.
|
| I'd rather records be free electronically and let healthcare
| providers plan for this.
|
| Having costs discourages information sharing, I think.
| andix wrote:
| The insurance anyway pays the doctor only the minimal amount
| of money for taking X-rays, I understand that they charge you
| for doing extra effort. If you get your X-rays done
| privately, it is included for sure.
| queuebert wrote:
| It's due to a lack of incentive ($$) to provide a service to
| easily deliver your electronic records. The standards and
| protocols exist, but no one yet has created a good one that
| has been widely adopted.
|
| We could vote with our feet, and only use providers that have
| electronic delivery available. Then they would feel the need
| to provide it.
| op00to wrote:
| In the ever expensive US health care system, I was able to
| get a free cd of my CT scan. Took 15 seconds to burn.
| peoplefromibiza wrote:
| > an excuse for doctors to have expensive systems to retrieve
| and disburse records.
|
| They are free in Italy, if you go through the National
| healthcare.
|
| to answer the question: the images are of the patient, the
| National health care (SSN) can use them for research purpose
| only by authorized personel, the distribution must be
| authorized by the patient.
|
| In some regions the patient can de-authorize them through a
| web app, but it's not very common yet.
|
| If you go to a private medical center, the scans are included
| in the price and are yours.
| helsinkiandrew wrote:
| I would guess the argument goes that very few people want or
| need their records so the cost of building and maintaining an
| online system that won't leak medical information to hackers
| is very high. If you want it, paying a small amount and
| proving you are who you say you are isn't that much of a
| burden.
| Topolomancer wrote:
| Living in Germany, I can state that the costs are very low:
| 10 EUR for a DVD/CD/other media are the typical ballpark. You
| are essentially just paying a fee for an administrative
| assistant to pull your files and give them to you.
| gambiting wrote:
| Same in UK. There is a fee but it's like PS20, it's
| minimal.
| lozenge wrote:
| PS20 is not a minimal fee (meaning, would pay without a
| second thought) for most people in the UK.
| gambiting wrote:
| What makes you think so?
| sorokod wrote:
| Perhaps the fact that some need to use food banks or even
| disconnect from electricity providers
|
| https://www.theguardian.com/society/2022/may/15/watchdog-
| urg...
| [deleted]
| gambiting wrote:
| Sure, of course those people exist. I mean specifically
| what makes you say that for "most" of people in the UK
| PS20 is not a minimal expense.
| tiagod wrote:
| Imagine I have a heart attack. I do an ECG, some CT,
| X-RAY, MRI. Suddenly its PS200 just for the DVDs.
| gambiting wrote:
| Really? Where did you get that quote? That's not how it's
| meant to work, not with NHS anyway. When I did that
| recently I rang my GP surgery, and they got _EVERYTHING_
| from my medical history. You don 't pay PS20 per result -
| it's PS20 to get hundreds of pages of medical history(if
| you have that much) all at once.
| TheOtherHobbes wrote:
| Do you get paper copies or PDFs?
| gambiting wrote:
| They sent me an email with a link to an encrypted archive
| with everything in it.
| bscphil wrote:
| This thread is a good example of a law of internet
| communication: when different people are responding
| consecutively to a single person in a thread, each person
| will subtly change the subject and misunderstand the
| foregoing argument, so the end of the thread will be
| discussing a completely different topic than the
| beginning.
| dicom_guy wrote:
| Yeah who owns a CD drive anymore. It should be a free web-
| based viewer that lets you login securely, manage temporary
| links to other providers, and download for offline use. It's
| not that hard to build and the government could provide it
| but instead we're stuck with expensive third party vendors.
| makeitdouble wrote:
| How long did it take for your government to have a site
| with an up to date list of all the places doing co-vid
| tests ?
|
| For me it took months to have a site, and it's been stale
| and broken every time I checked.
|
| Why should we trust it more to host such a critical service
| ?
| Max-q wrote:
| It took a few weeks, it work perfectly and I could book
| time for test. We also got a national EU Covid pass
| service where Covid tests and vaccines are show.
|
| It takes me a couple of minutes to do my tax return and I
| can deliver every form to any government organization
| from one single portal. All my health information is
| stored on another single portal (same one where I find
| the Covid pass).
|
| I don't think the rule that all government software is
| bad is universally applicable.
| tveyben wrote:
| Which is several orders of a magnitude more expensive than
| just adding a CD-burner. Or use the pre-existing USB
| interface to write the files to a 5EUR small memory stick
| (new as mentioned earlier)
|
| Ditto for the complexity regarding the security.
| dicom_guy wrote:
| What about the marginal cost of each CD, a technicians
| time to burn it and the extra time for a patient to
| receive their images in a CD before they can share it
| with other providers? I went through this problem trying
| to get the X-rays for my grandma that got COVID.
| unionpivo wrote:
| Our country has that.
|
| Not impressed with their security.
|
| There are supposed to be no intrusions, but honestly the
| systems is so bad/old( _1), that I am not sure they 'd even
| notice.
|
| _1 It futures latest and greatest security practices ...
| from year 2000. Better than nothing, but inadequate
| nowadays.
| okl wrote:
| I'd rather prefer my data not be available on the web.
| Snowworm wrote:
| It already would be, they have to transfer the data
| between hospitals somehow. The only difference is that
| you will have access to it, not just the doctors.
|
| The security depends entirely on the implementation
| though. I'm guessing that's why your concerned about it.
| makeitdouble wrote:
| Don't know andix's country, but for France for instance
| sharing data with patient is widely accepted and I got by
| default a copy of most of my check ups without having to ask,
| and I don't even noticed the price if there was any. For
| longer care history, it can be a bit more paperwork, but
| nothing complicated.
|
| One aspect to this is you are usually the one bridging the
| doctors dealing with your health, and might be hand handling
| the relevant data to whoever needs it (e.g. your family
| doctor can request an X-ray, but after taking you need to
| switch doctors for any reasons. As you have the actual
| X-rays, you can hand it to anyone else competent for the
| case)
| Vladimof wrote:
| I haven't had to pay here in the US for hospital images
| distributed on CD but my previous dentist was giving me shitty
| printed images and I could not get digital copies. But they
| probably charge you for it whether you get them or not.
| LightG wrote:
| Does anyone know the position on this for the UK since we ...
| you know ... fxcked it all up?
|
| Thanks
| limeblack wrote:
| There is an exception to this rule and that is mental health
| cases but otherwise yes this is true.
| bscphil wrote:
| > But I have to pay the doctor the expenses, if there is some
| work involved
|
| In the United States this would somehow be an excuse to charge
| you $300 for it. Some people might be lucky enough to have
| their insurance "cover" it, which means you still somehow end
| up paying $30 since the insurance only covers 90% for some
| reason.
| andix wrote:
| No, this doesn't mean that in Europe. They may charge you
| 5-10EUR for a CD or a flash drive. And maybe 2-3EUR for 10
| printouts. Maybe another fee of 20EUR if it was already
| archived, and they need to pull it from the archive. It's
| about covering their costs, and not about making money. 5
| minutes of their work doesn't cost 300 usd.
| newsclues wrote:
| I have a hard time accepting unknown people or organizations own
| any part of my health data.
| rullelito wrote:
| You don't own the copyrights to pictures you're in..
| mattl wrote:
| You do need a model release for photos of someone though.
| prepend wrote:
| That depends on how you commercialize.
|
| To just take someone's picture and store it, you don't need a
| model release.
|
| And I'm sure the pages of disclosure patients sign probably
| have something like this.
|
| My dentist tried to make me sign something saying they could
| take any pictures they want of me and use them For marketing
| and social media. Seemed pretty crazy and they were confused
| how to strike that part of the privacy doc.
| YPPH wrote:
| I see no reason to distinguish the position as between a medical
| image and any other image. (IANAL etc.)
|
| The person who shot it owns the copyright, except, as it was
| created during employment, copyright is probably owned by the
| employer.
|
| An analogous issue comes up in a more familiar context quite
| often, being wedding photography. Even if I hire a photographer
| for my own wedding, the person who takes the photographs owns the
| copyright. Even though I paid them to take the photos, they own
| the copyright, unless a release was expressly stated in the
| contract.
| DannyBee wrote:
| Correct on the theory but wrong on the answer.
|
| There is no distinguishing, but copyright only subsists in
| creative works, not non-creative works.
|
| As a result, in the US, the copyright office won't register
| copyright in medical images produced through most processes
| (registration is a pre-requisite to suing)
|
| As per Compendium: Chapter 300 by the US Copyright Office, "the
| Office will not register works produced by a machine or mere
| mechanical process that operates randomly or automatically
| without any creative input or intervention from a human
| author." including "Medical imaging produced by x-rays,
| ultrasounds, magnetic resonance imaging, or other diagnostic
| equipment."
| DANK_YACHT wrote:
| Certain images of art have been found not to be copyrightable
| because the goal of the photographs was to exactly reproduce
| other pieces of intellectual property. You might be able to
| make a similar argument for medical images as well.
| jstanley wrote:
| > Even though I paid them to take the photos, they own the
| copyright, unless a release was expressly stated in the
| contract.
|
| I think it's the other way around. If copyright assignment is
| not expressly stated in the contract, and you are paying
| someone to create the work, then it is considered a "work made
| for hire" and the copyright is assigned to the person who paid.
| sixothree wrote:
| Unfortunately there are plenty of laws and regulations that
| make your assessment just plain incorrect.
| YPPH wrote:
| Someone here linked a page which said in the US there is no
| federal case law on whether an X-ray is copyrightable. If
| that's wrong, what law do you refer to?
|
| In some of my other replies you'll see some of my thoughts on
| how an X-ray may or may not be distinguishable from another
| ordinary photograph.
| gpm wrote:
| The only potential wrinkle I see to this is whether or not
| there's sufficient creative input to create a copyright in the
| first place. If they're posing you for the picture according to
| a well defined algorithm, and then pressing a button, it's not
| clear to me that there is the necessary degree of
| arbitrariness. Two different technicians would have created the
| exact same work.
| YPPH wrote:
| That's an interesting point. I'm not a copyright lawyer, or a
| radiologist for that matter.
|
| Is lining up the X-ray equipment and hitting the go button
| perhaps sufficient? The radiologist must have some idea about
| the result they will get from kicking off the process. In
| relation to the two technicians point, couldn't you say that
| about _any_ photographic image where the camera is tripod
| mounted with a static target? Or is it the case that the
| choice of subject is what matters?
|
| Now I'm wondering: If A sets up an X-ray and B comes over and
| presses the shutter without having even seen what will be
| photographed, I wonder if that meets the intellectual effort
| requirement. Perhaps not.
|
| Having given it some more thought, a CAT scan could
| _certainly_ be more legally complicated. This process
| involves taking many photographs and computing them into a
| single work using a complex algorithm, with minimal human
| involvement.
| tzs wrote:
| When I had panoramic X-rays done, there really wasn't much
| opportunity for creativity for the person operating the
| machine.
|
| On the machine used for mine there was a chin rest that you
| rested your head on that held the head in a fixed position,
| in in front of that was a thing holding a disposable piece
| that you bit on. This was adjustable to get the right
| height for you to bite it.
|
| You then put your head on the rest, the operator put a new
| disposable piece on the bite thing and sets the height so
| you can bite it. Then they move the part that swings around
| while it is scanning to be near one ear--I'll call this
| part the scanner. They then hit the start button on the
| application running on the controlling computer.
|
| The software knows where the chin rest is, and from the
| height of the holder for the bite thingy it knows where the
| front of you mouth is relative to the chin holder. The
| initial placement of the scanner tells it how wide your
| head is. That gives it all it needs to do its thing.
| gopher_space wrote:
| > This process involves taking many photographs and
| computing them into a single work using a complex
| algorithm, with minimal human involvement.
|
| Well, the human involvement took place earlier. If you're
| building a system like this it's a mix of off-the-shelf
| software and plenty of creativity from the folks involved
| in each step. I can't imagine trying to pick a point where
| your involvement in the process wouldn't matter.
|
| I also can't imagine having this conversation with someone
| who doesn't appreciate beauty in code.
| littlestymaar wrote:
| Am I misunderstanding or are you implying that Adobe
| should get copyright for pictures edited on Photoshop?
| gopher_space wrote:
| I'm implying that there are a lot of steps in the process
| where point of view matters. Less saying that something
| "should" happen and more describing a can of worms nobody
| wants to open.
| pbhjpbhj wrote:
| >This process involves taking many photographs and
| computing them into a single work using a complex
| algorithm, with minimal human involvement. //
|
| Yes, so it's a technical process and not an artistic
| creative process. The correct IP law is patent law,
| copyright is for protection of artistic and creative works
| not for slavish production of images using technological
| means.
|
| _This is my own private opinion and not legal advice._
| YPPH wrote:
| What I'm curious about is how you distinguish this from
| ordinary photography. What sets an X-ray apart?
|
| For starters, without knowing, I suspect it is not
| necessary that you "preview" the result before taking the
| photograph, given this wasn't viable with early
| photography.
|
| It could be the fact that you can't see the underlying
| bone structure etc, whereas someone taking an ordinary
| photograph can look at what they will depict. By this
| logic, someone who closes their eyes, spins around and
| photographs something without any idea of what would
| result may not have used intellectual effort in creating
| the photograph, since they did not see the subject. On
| this logic you might also question whether a visually
| impaired person could ever own copyright in an image.
|
| Perhaps it is the predefined nature of what is being
| depicted. Imagine an autopsy room where the deceased is
| placed on a trolley and photographs are taken by a
| mortician from predefined angles. To make it even easier,
| imagine the cameras are already prepositioned and the
| mortician simply clicks a button. I wonder if copyright
| would subsist in the photographs that result from this
| scenario.
| killjoywashere wrote:
| I work in medical imaging and at least in my domain we
| consider the digital images facsimile copies.
| jacquesm wrote:
| They better be. If creative input as a big factor then
| medical images would be useless! Obviously not all
| radiologists are created equal and some may be able to
| work the equipment better than other enabling better
| diagnosis but the goal is the same for all of them.
| vmception wrote:
| I believe UK law is different and less streamlined than that
| Hermel wrote:
| In most countries, medical images are not subject to copyright
| at all as they lack a creative dimensinon and artistic
| expression.
| killjoywashere wrote:
| So, in the US, it's the patient's medical record. The
| healthcare provider has certain custodial responsibilities, so
| the patient doesn't have a 'right to be forgotten', but the
| provider does have to cough up a copy on demand. They are
| allowed to expect a certain cost, though they don't all impose
| a cost to the patient (they'd rather keep charging exorbitant
| rates to CMS than kick the sleeping dog with $10 out-of-pocket
| reproduction fees).
| jacquesm wrote:
| > I see no reason to distinguish the position as between a
| medical image and any other image.
|
| Fortunately various authorities do see such a distinction,
| resulting in a lot of countries having very specific laws on
| how medical data is set apart from say your own personal shot
| of mount Everest. The mountain does not have an interest in the
| images made of it but I certainly do have an interest in the
| images made of me. And depending on how much meta data
| accompanies those images that interest may go up considerably.
| ISL wrote:
| The existing rules also convey certain rights to the subject
| of an image, namely that, subject to various caveats, the
| image probably can't be used commercially (for the promotion
| of a product) without a release from the subject.
|
| The medical image _might_ be used in an editorial
| /documentary context without the consent of the subject, but
| for such an intimate image, the photographer would be wise to
| ask the subject for consent or ensure sufficient
| anonymization that the subject simply could not be
| identified. The rules of medical privacy/records also apply,
| and may prevent any publication/usage without consent.
|
| But, all that said, I suspect that the person who pushed the
| button on the X-ray machine has initial copyright and that a
| sufficiently-thoughtful IP agreement for the employee would
| generally see that copyright transferred to their employer.
| jacquesm wrote:
| I've been asked for and have given permission for the use
| of medical images of a close family member, and the whole
| process gave me good confidence that some hospitals are
| _really_ respectful towards their patients in this respect.
|
| > But, all that said, I suspect that the person who pushed
| the button on the X-ray machine has initial copyright
|
| They probably do not:
|
| https://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Medi
| c...
| ISL wrote:
| Whoa. I sit corrected.
|
| "the Office will not register works produced by a machine
| or mere mechanical process that operates randomly or
| automatically without any creative input or intervention
| from a human author." would appear to come pretty close
| to excluding school portraits from copyright, too.
|
| Interesting that it, per the linked article, hasn't yet
| been tested in US courts.
| YPPH wrote:
| You've raised a good point in relation to school
| portraits. Perhaps creative effort is a result of
| direction from the photographer (smile?).
| ISL wrote:
| Lighting, focus, posing, etc. matters too for school
| portraits -- my actual point is that, from a
| photographer's perspective, medical imaging seems like it
| would fall under copyright, too.
|
| There is direction and configuration that goes into
| arranging the patient, correctly operating the imaging
| system, and interpreting the results to verify that the
| medical-imaging needs are met. I'm surprised to hear that
| medical imaging is handled differently by the Copyright
| Office.
|
| Instagram's most popular images are frequently formulaic
| -- is that not a mechanical process, too?
| YPPH wrote:
| I guess we will only know when a court determines the
| issue. I am having a great deal of difficulty seeing how
| an X-ray differs from ordinary photography where the shot
| is pre-set but nevertheless subject to _some_ human
| decision-making. It 's just different photographic
| technology that enables transparency.
|
| I was under the understanding the creativity requirement
| was _very_ low, and that simply the choice of the area to
| X-ray would suffice. Clearly, the Copyright Office
| disagrees with that assesment.
| littlestymaar wrote:
| Nobody said it doesn't require any work, but the question
| is whether the said work is a creative process.
|
| School photographs would likely be given the benefit of
| the doubt, because most of their non-school pictures are
| creative work, but thr same cannot be said for
| dentists...
| jacquesm wrote:
| There are lots of things that haven't been tested in US
| courts, this may not necessarily be a signal of ambiguity
| though, it usually means the exact opposite: that all
| parties that might ever be involved in such a suit are
| all confident in the outcome leading the 'loser' to see
| the error of their ways without the court saying it is
| so.
| ezoe wrote:
| For a usual camera and the image produced by that camera, the
| person who operate the camera own the copyright of the image.
|
| So, the person who operated the X-ray machine own the copyright
| of X-ray images.
|
| But... in my country, it probably doesn't have a copyright in the
| first place. The Japanese copyright law said copyrighted works
| are the one which creatively express the thought or emotion.
| Medical images requires no creativity. Two fully-qualified X-ray
| machine operators are expected to produce the same images.
| pbhjpbhj wrote:
| >the person who operate the camera own the copyright of the
| image //
|
| Ordinarily _not_ if it's work for hire, eg
| https://en.wikipedia.org/wiki/Work_for_hire
| tzs wrote:
| Good point.
|
| Assuming such images are copyrightable in the US (which I
| have doubts about due to the limited if any creativity
| involved in them), work for hire probably would apply between
| the X-ray operator and the dental office or X-ray lab or
| whatever that employees them.
|
| It would be that employer that gets the copyright.
|
| The patient would not get copyright because even if one could
| argue successfully that the patient commissioned having the
| work made and successfully argue that it falls into one of
| the 9 categories of things that can be commissioned works for
| hire, commissions require a signed written instrument saying
| that the commission is a work for hire for them to become
| works for hire.
| alaricus wrote:
| makeitdouble wrote:
| Copyright requires creative work, so I find it hard to classify a
| medical image of a natural subject under that definition (skill
| is involved, but not creativity)
| DannyBee wrote:
| as an ip lawyer, this is the correct answer.
|
| In the US, the copyright office even has an FAQ answer about
| this: "As per Compendium: Chapter 300 by the US Copyright
| Office, "the Office will not register works produced by a
| machine or mere mechanical process that operates randomly or
| automatically without any creative input or intervention from a
| human author." including "Medical imaging produced by x-rays,
| ultrasounds, magnetic resonance imaging, or other diagnostic
| equipment." "
|
| Even an ultrasound operator will not get a copyright in the
| ultrasound, because their work is not creative. IE while they
| are manipulating the location of the image, they are doing it
| to find your kidney or whatever, not for creative reasons.
| bloak wrote:
| That sounds absolutely right to me. I would guess that there's
| more likely to be creativity, and therefore a copyright, in the
| brief medical notes written by an expert who has examined the
| image. So, if you want to worry about the intersection between
| copyright law and medical data ...
| littlestymaar wrote:
| Yeah, and I'm really puzzled to see this answer not being at
| the top.
| D13Fd wrote:
| Agreed. This is the copyright answer. The medical images are
| (probably) not an original work of authorship subject to
| copyright protection.
| ninesnines wrote:
| Not completely the same thing but I work at a research hospital
| where we often scan people. Our lab usually says that we will not
| give images to individuals because often people will become
| worried when looking at their own images.
|
| They sign off on this, and at the end of the day the data goes
| "owned" by the hospital. I believe the same is for the only
| clinical scans.
|
| It's an interesting question though, and one that's been argued a
| lot over at different institutions and countries
| ninesnines wrote:
| Also as a side note it is often times a pain to go and get
| clinical data for patients. You often have to extract the
| dicoms and find a encrypted usb. Then the patient would have to
| find a dicom viewer....
|
| A lot of clinical images come from very archaic systems that
| are often very idiosyncratic and it just makes for giving
| patients their own images not a small time thing.
| Urgo wrote:
| I haven't seen this with dental records yet, but at least in my
| area in the US a lot of these images (xrays, etc) are starting to
| be available from the hospital's patient portal.
| andrepew wrote:
| Would the person operating the equipment initially own the image?
|
| I say initially because they've likely signed some agreement with
| their employer that assigns copyright created through the course
| of employment to the employer...
|
| The employer may have then signed an agreement in purchasing that
| equipment that assigns some rights over the image to the
| equipment manufacturer...
|
| So I guess who knows? In the absence of a law explicitly giving
| the patient rights to their data, it is probably a super
| complicated, case-by-case answer.
| dehrmann wrote:
| But you're paying for the xray as part of the service. It might
| even be a line item on the bill.
| pxeger1 wrote:
| Merely paying for a service confers no implications about
| copyright.
| pbhjpbhj wrote:
| Absent any other agreement commissioning work implies
| ownership of copyright.
| Kerrick wrote:
| Not in the U.S. Work For Hire is not assumed to be the
| default for, say, a person who walks into a portrait
| studio and commissions a headshot.
|
| https://www.copyright.gov/circs/circ09.pdf
| tzs wrote:
| Not in the US. In the US the author of the work gets
| copyright unless it is a "work made for hire".
|
| A work made for hire is either:
|
| 1. a work prepared by an employee within the scope of
| their employment, or
|
| 2. a work specially ordered or commissioned for use in
| one of 9 particular ways [1] _and_ the parties expressly
| agree in a written instrument signed by them that the
| work shall be considered a work made for hire.
|
| The copyright office has a good explanation here:
| https://www.copyright.gov/circs/circ09.pdf
|
| [1] The 9 are contribution to a collective work, part of
| a motion picture or other audiovisual work, a
| translation, a supplementary work, a compilation, an
| instructional text, a test, answer material for a test,
| and an atlas.
| sixothree wrote:
| In the US, legality is clear. Not copyrightable. Not usable
| without the patient's authorization (barring exceptions). Not
| even identifiable unless you are actually caring for the
| patient.
| dicom_guy wrote:
| I know in the state of California, the imaging centers own the
| data. I think it's similar in other states which is why you see
| a lot of these institutions selling data to medical imaging AI
| startups.
| robert_tweed wrote:
| It's also possible that copyright does not apply to this kind of
| image, because it lacks the creative element required for
| copyright to apply.
| punnerud wrote:
| Could this fall under <<suis generis>> law in EU because it's a
| byproduct of the normal work? If that is the case there is no
| copyright.
|
| Your teeth could identify you so I would say that it is personal
| informasjon (under GDPR), so you get to decide if they can keep
| it and you have to explicitly except any other use of your data.
| [deleted]
| lr4444lr wrote:
| _I didn 't sign anything about copyright._
|
| You don't know that. There are various provisions that you might
| assent to as part of vague clauses on the forms about agreeing to
| use service providers the doctor deems necessary for carrying our
| your diagnostics and treatments.
| edent wrote:
| The UK doesn't have quite the same level of form filling as
| other, more litigious, countries.
| ineedasername wrote:
| I'm in the US and so experience may vary significantly. The one
| tine I had to deal with something of this sort was an MRI of my
| wrist. I automatically received a high res DVD w/ images and
| analytical report. My doctor automatically received a copy as
| well. I brought them to a second doctor for another opinion, the
| whole thing was pretty easy.
|
| On the other hand I do know people who have had more difficulty.
| I also don't know where the actual copyright is, but in my
| opinion it should be a clear case of Work For Hire. But, in
| general, patients have the right to copies of all of their
| records, though doctor's offices may charge a fee to cover
| administrative costs & physical media. Most doctors have not
| charged me for records copies. One of my current doctors charges
| a flat $10 for any request.
| quasarj wrote:
| Unsure about copyright, but in the USA you have an absolute
| right to get copies of all medical images, and you get to
| decide how they are used by anyone else (for the most part...
| there are some exceptions). And you are absolutely allowed to
| post them to any blog you please.... lol
| DannyBee wrote:
| The copyright answer does not vary. Various folks may try to
| get away with something, but no copyright exists.
| dehrmann wrote:
| It's like the Rebecca Black "Friday" ownership case.
| zabaki wrote:
| My gut tells me that this is a two part question.
|
| First, one has to understand what are required in order to get
| copyright.
|
| Secondly, one would have to decide if patient data is somehow
| excluded from the traditional copyright rules.
|
| I found some of my old notes from law classes at uni. This is
| part of the EU Copyright Directive (copied in 2012, but the main
| motives remain the same) says:
|
| " If authors or performers are to continue their creative and
| artistic work, they have to receive an appropriate reward for the
| use of their work, as must producers in order to be able to
| finance this work. The investment required to produce products
| such as phonograms, films or multimedia products, and services
| such as 'on- demand' services, is considerable. Adequate legal
| protec- tion of intellectual property rights is necessary in
| order to guarantee the availability of such a reward and provide
| the opportunity for satisfactory returns on this investment".
|
| I could probably copy the entire document here, but as i
| remember, and as others have pointed out, European law is focused
| on providing "protection" to those who put in an "effort" in
| creating something that can be considered "creative" or
| "artistic".
|
| This is interesting, because that essentially means that data can
| be created without being protected by law. I remember hearing
| examples of cases where photos weren't protected simply because
| the photographer didnt "put a effort" into taking the picture
| (read: anyone with a smartphone is essentially a photographer).
|
| My take on the original question about the medical images, is
| that the image itself, it not protected by copyright (but i am
| not a lawyer). I would pose that there isnt any creative or
| artistic process surrounding taking the picture.
|
| The second part I wonder about is, who "owns" patient data.
| Living in norway, I havent been able to find any legal
| documentation stating who owns patient data (journal notes,
| medical pictures, etc). There are lots of privacy laws protecting
| the data, and there are laws defining who has the right to access
| the data. But nothing really states anything about owning the
| data.
|
| I would argue that the doctor does not know the data he/she
| enters in a journal, since they are "only" writing down what the
| patient is saying, and documenting what treatment the doctor has
| given the patient. Measurement data, lab data etc, are all
| automatically created, and are tied to the patient, so i wonder
| if the patient "own" the data.
|
| Having worked in health tech a while, Ive never found any legal
| that clearly states ownership.
| zabaki wrote:
| Then there is another aspect to considering, which is what
| protection copyright actually provides.
|
| EU laws says that copyright owner has the sole right to
| "(re)produce" and make available to the public. (Paraphrasing).
|
| Considering that the image is medical, then there are in part,
| a lot of other laws that restrict any potential copyright owner
| (eg: the dentist) from making the image available to the
| public, due to the sensitivity.
|
| Which might mean the copyright owner might only have the
| "right" to create more copies, which one might ask what purpose
| it would have to create more copies of a piece of work that
| can't be viewed by anyone else than the patient, and other
| medical staff connected to the patient.
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