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.
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).
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)
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.
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.
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 £20 per result - it's £20 to get hundreds of pages of medical history(if you have that much) all at once.
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.
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.
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.
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.
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 5€ small memory stick (new as mentioned earlier)
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.
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)
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.
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.
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.
> 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.
> 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. Persönlichkeitsrecht in Germany).
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.
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.
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.
> 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.
Unfortunately it's not that simple under U.S. law: Under 17 U.S.C. § 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 #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. § 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. § 101, https://www.law.cornell.edu/uscode/text/17/101.
Good to know - thanks. I was aware of the human-authorship requirement — see, e.g., the "monkey selfie" controversy [0] — but I hadn't known that the Copyright Office took that position about medical imaging.
I can imagine that a court might see things differently, given that under Supreme Court precedent [1] it takes comparatively-little human creative effort to constitute an "original work of authorship" as required by the Copyright Act. But it's also likely that no one has ever cared enough about claiming copyright in a medical image to go challenging the Office's position — or that I''m simply not up to date on this area of the law (which isn't part of my day-to-day practice).
Oh yeah, in a courtroom, laws are bent, misinterpreted, and ignored all the time. But it's at least declared clearly to the extent that it would have to be ignored in order for a copyright claim to hold up. Courtrooms and lawyers are a unique thing.
I was originally thinking it would fall under the monkey taking a selfie as the technician (not photographer) is merely activating a machine that actually makes an image (and not photo, it's actually a radiograph), like a programmer executing code that has an AI generate an image. Particularly in the case of the auto-panning machines. But everything in this paragraph can be wildly misinterpreted by the eyes and lies of a lawyer, since the user of a camera isn't taking a photo, they're pressing a button and the camera generates an image.
So you're absolutely correct on the "in a courtroom" setting.
Radiology technicians do more than just press a button: Every time I've had an X-ray or other imaging, the tech has positioned me; told me to move my arms and/or legs and/or torso and/or head; had me turn just a bit this way or that; etc. I could easily see how a court would conclude that this involved sufficient creativity that the image would constitute an "original work of authorship."
Speaking as a (former) litigator, I think you have a misimpression about what lawyers and judges do in our common-law judicial system. In part, we deal with edge- and corner cases that simply aren't clearly addressed in the statute. (If you're a software developer, you're surely familiar with the phenomenon.)
It could be argued that in a civil case, if a statute doesn't clearly allow the plaintiff to recover, then the court should simply deny the requested relief. But that's not how the Anglo-American system works. Anciently, to help keep the peace, common-law judges tried to figure out, "what would the King do if he were here?" Likewise, in our modern system, they ask, "what was the intent of [Parliament | Congress | the state legislature] in an edge- or corner case like this?" and to grant or deny relief accordingly. Is that a perfect system? No. But it has worked reasonably well for centuries, and so there'd be a huge path-dependence problem in trying to change it.
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.
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.
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.)
> 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.
> 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.
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.
Horos/Osirix is - by far - the best open-source DICOM viewer, it's the only viewer I'd describe as being on-par with commercial PACS software. Unfortunately it's macOS only.
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.
> 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.
No, this doesn’t mean that in Europe. They may charge you 5-10€ for a CD or a flash drive. And maybe 2-3€ for 10 printouts. Maybe another fee of 20€ 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.
>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
I certainly can't speak for all software, but I work on one such and can confirm that there's no licensing or other cost for the doctors burning the disk with embedded viewer aside from the media itself, which can be any off the shelf stuff. Though I know there is some fuckery in related areas—there's at least one company that makes a DICOM printer that only accepts extremely pricy first-party, rfid-tagged paper.
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.
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.
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.
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.
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.
>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.
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.
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.
> 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.
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.
Fortunately for everyone, the question of whether the author of copyrighted software should get copyright about a creative work performed by a user of a software isn't a “can of worm nobody wants to open”, it is a clear an unambiguous “hell no”.
And that's quite fortunate actually, since otherwise Sony, Canon and Nikon would have copyright over the entirety of photographs since the invention of digital photography, shared with the authors of jpeg of course…
Copyright issues are complicated enough, no need to mix things up with your imagination.
We're missing each other a bit here. I'm not saying that copyright law is unambiguous functionally, I'm saying that from my point of view in the process there are a lot of issues that people simply haven't considered.
Think about the line between craft and art when it comes to something like woodworking, and you might see what I'm getting at a bit.
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).
> 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.
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.
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
"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.
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?
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.
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…
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.
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.
> 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.
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.
Additionally, clinicians are not allowed to share your data without your permission (barring exceptions such as self harm or unconscious). Your data must not be identifiable to persons other than care team members. And on top of that, you have a right to access that data.
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."
If this is so, could you approach the court if you disagree with their interpretation? I'd be surprised if the Copyright Office was the be all and end all of whether copyright subsists in a particular subject-matter.
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.
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.
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)
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 ...
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.
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
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.
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.
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.
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.
[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.
Either the court or the law is wrong; whether someone is an employee or commissioned to create something doesn't change that someone is obviously paying for whatever's created.
The linked doc might not apply in the case of medical images because the image was captured by a company, not an individual. Although I suppose the company is a corporate person...
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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[ 4.5 ms ] story [ 812 ms ] threadA clinician's ability to use medical data is governed by the patient (barring certain exceptions).
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.
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.
https://www.theguardian.com/society/2022/may/15/watchdog-urg...
The security depends entirely on the implementation though. I'm guessing that's why your concerned about it.
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 ?
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.
Ditto for the complexity regarding the security.
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.
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)
We could vote with our feet, and only use providers that have electronic delivery available. Then they would feel the need to provide it.
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.
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. Persönlichkeitsrecht in Germany).
https://en.wikipedia.org/wiki/Copyright_law_of_the_European_...
You're gonna have a hard time convincing a court that your dental radio was in fact creative art.
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.
Exception #1: The contract could provide for the image-maker to assign the copyright to the image subject. See 17 U.S.C. § 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. § 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. § 101, https://www.law.cornell.edu/uscode/text/17/101.
I can imagine that a court might see things differently, given that under Supreme Court precedent [1] it takes comparatively-little human creative effort to constitute an "original work of authorship" as required by the Copyright Act. But it's also likely that no one has ever cared enough about claiming copyright in a medical image to go challenging the Office's position — or that I''m simply not up to date on this area of the law (which isn't part of my day-to-day practice).
[0] https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
[1] https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R....
I was originally thinking it would fall under the monkey taking a selfie as the technician (not photographer) is merely activating a machine that actually makes an image (and not photo, it's actually a radiograph), like a programmer executing code that has an AI generate an image. Particularly in the case of the auto-panning machines. But everything in this paragraph can be wildly misinterpreted by the eyes and lies of a lawyer, since the user of a camera isn't taking a photo, they're pressing a button and the camera generates an image.
So you're absolutely correct on the "in a courtroom" setting.
Speaking as a (former) litigator, I think you have a misimpression about what lawyers and judges do in our common-law judicial system. In part, we deal with edge- and corner cases that simply aren't clearly addressed in the statute. (If you're a software developer, you're surely familiar with the phenomenon.)
It could be argued that in a civil case, if a statute doesn't clearly allow the plaintiff to recover, then the court should simply deny the requested relief. But that's not how the Anglo-American system works. Anciently, to help keep the peace, common-law judges tried to figure out, "what would the King do if he were here?" Likewise, in our modern system, they ask, "what was the intent of [Parliament | Congress | the state legislature] in an edge- or corner case like this?" and to grant or deny relief accordingly. Is that a perfect system? No. But it has worked reasonably well for centuries, and so there'd be a huge path-dependence problem in trying to change it.
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.
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.
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.)
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.
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.
Thanks
I guess on the positive side, they're not faxing it anymore.
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.
I certainly can't speak for all software, but I work on one such and can confirm that there's no licensing or other cost for the doctors burning the disk with embedded viewer aside from the media itself, which can be any off the shelf stuff. Though I know there is some fuckery in related areas—there's at least one company that makes a DICOM printer that only accepts extremely pricy first-party, rfid-tagged paper.
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.
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.
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.
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.
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.
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.
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.
And that's quite fortunate actually, since otherwise Sony, Canon and Nikon would have copyright over the entirety of photographs since the invention of digital photography, shared with the authors of jpeg of course…
Copyright issues are complicated enough, no need to mix things up with your imagination.
Think about the line between craft and art when it comes to something like woodworking, and you might see what I'm getting at a bit.
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.
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.
> 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_Medic...
"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.
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?
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.
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…
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.
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.
Search for medical imaging.
Additionally, clinicians are not allowed to share your data without your permission (barring exceptions such as self harm or unconscious). Your data must not be identifiable to persons other than care team members. And on top of that, you have a right to access that data.
https://www.healthit.gov/topic/information-blocking
https://www.healthit.gov/topic/patient-access-health-records...
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."
If this is so, could you approach the court if you disagree with their interpretation? I'd be surprised if the Copyright Office was the be all and end all of whether copyright subsists in a particular subject-matter.
The copyright office updated their guidance after the courts decided this one :)
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.
Ordinarily _not_ if it's work for hire, eg https://en.wikipedia.org/wiki/Work_for_hire
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.
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.
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
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.
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.
https://www.copyright.gov/circs/circ09.pdf
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.
The linked doc might not apply in the case of medical images because the image was captured by a company, not an individual. Although I suppose the company is a corporate person...
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.
https://www.healthit.gov/topic/information-blocking
https://www.healthit.gov/topic/patient-access-health-records...
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.
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).
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.
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.
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.
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.
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.
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).