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Who owns the copyright to my medical images? (2018)
- zabaki 4y agoMy 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 4y agoThen 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.
- deleted 4y ago[deleted]
- antihero 4y agoSurely 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.
- makeitdouble 4y agoWould it be copyrightable in the first place?
- sixothree 4y agoNo. Absolutely not. A clinician's ability to use medical data is governed by the patient (barring certain exceptions).
- stefan_ 4y agoCareful, 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).
- grishka 4y agoBut 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)
- andix 4y agoIn 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.
- prepend 4y agoThis 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.
- Topolomancer 4y agoLiving 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.
- newsclues 4y agoI have a hard time accepting unknown people or organizations own any part of my health data.
- rullelito 4y agoYou don't own the copyrights to pictures you're in..
- mattl 4y agoYou do need a model release for photos of someone though.
- prepend 4y agoThat 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 4y agoI 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.
- DANK_YACHT 4y agoCertain 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.
- gpm 4y agoThe 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 4y agoThat'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.
- ezoe 4y agoFor 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 4y ago>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 https://en.wikipedia.org/wiki/Work_for_hire
- tzs 4y agoGood 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.
- makeitdouble 4y agoCopyright 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)
- bloak 4y agoThat 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 4y agoYeah, and I'm really puzzled to see this answer not being at the top.
- D13Fd 4y agoAgreed. This is the copyright answer. The medical images are (probably) not an original work of authorship subject to copyright protection.
- DannyBee 4y agoas 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.
- ninesnines 4y agoNot 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 4y agoAlso 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 4y agoI 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 4y agoWould 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 4y agoBut you're paying for the xray as part of the service. It might even be a line item on the bill.
- pxeger1 4y agoMerely paying for a service confers no implications about copyright.
- pbhjpbhj 4y agoAbsent any other agreement commissioning work implies ownership of copyright.
- Kerrick 4y agoNot 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 https://www.copyright.gov/circs/circ09.pdf
- tzs 4y agoNot 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 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.
- robert_tweed 4y agoIt's also possible that copyright does not apply to this kind of image, because it lacks the creative element required for copyright to apply.
- deleted 4y ago[deleted]
- ineedasername 4y agoI'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 4y agoUnsure 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 4y agoThe copyright answer does not vary. Various folks may try to get away with something, but no copyright exists.
- dehrmann 4y agoIt's like the Rebecca Black "Friday" ownership case.
- deleted 4y ago[deleted]
- lmc 4y agohttps://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Medical_Imaging https://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Medic...
- sixothree 4y agoWe should also add https://www.healthit.gov/topic/information-blocking https://www.healthit.gov/topic/information-blocking https://www.healthit.gov/topic/patient-access-health-records/patient-access-health-records https://www.healthit.gov/topic/patient-access-health-records...
- alaricus 4y ago
- lr4444lr 4y agoI 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 4y agoThe UK doesn't have quite the same level of form filling as other, more litigious, countries.
- kdtop 4y agoU.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 4y agoAt 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 4y agoI 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 4y agoHi 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.
- sixothree 4y agoI 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/ http://hl7.org/fhir/ (and maybe click on Resources to get an idea of what this is all about).
- joshvm 4y agoA 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.
- punnerud 4y agoCould 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.
- zugi 4y agoThe 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.
- AlphaGeekZulu 4y agotl;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).
- stakkur 4y agoMedical imaging is not copyrightable (in the US, and I would be surprised if it were anywhere else). This explains a bit: https://blog.photoshelter.com/2018/01/who-owns-the-copyright-to-your-x-ray/ https://blog.photoshelter.com/2018/01/who-owns-the-copyright...
- mro_name 4y agothere may not be no copyright in the sense of meaning. It's no creative work. So: nobody. But they are personal, so you have personality rights. It's images about you so you are to decide what happens with them.