Wikilegal/Copyright of Medical Imaging

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When determining whether a given person holds copyright for medical imaging such as x-rays, there are two questions to answer. First, one must determine whether copyright law even protects the image. If a valid copyright exists, then one must figure out who holds that copyright, and whether any other parties might also have rights to the image.

Assuming copyright exists, then the person who holds the copyright to the image has the authority to license it however they please (including CC BY-SA). If no copyright exists in the image at all, then anyone may copy and distribute the image. In both cases, however, additional doctrines, such as privacy law, right of publicity law, and patient confidentiality laws (for example HIPAA in the United States), may restrict the publication of the image.

Works created in the United States[edit]

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." This position differs from the broad copyright protections afforded to photographs. While the Copyright Compendium is an agency statutory interpretation and not legally binding, courts are likely to give deference to it if they find it reasonable.[1] Yet, there is no U.S. federal case law directly addressing the issue of the copyrightability of x-ray images. Nevertheless, it can be regarded as justified to mark any work of medical imaging created in the United States as Public Domain.

It is advisable to have informed consent from the subject whose medical imaging is published, although US law does not explicitly require it for all cases (see Privacy protection section below). Also, added graphics such as annotations may be copyrightable (see Derivatives section below).

Privacy protection[edit]

X-ray images may be protected from unauthorized reproduction, publication, or retention by health privacy laws, most notable among them the 1996 Health Insurance Portability and Accountability Act (HIPAA). HIPAA sets restrictions for health care providers on utilizing Protected Health Information (PHI), which is any individually identifiable information relating to the past, present, or future physical or mental health of any individual.[2] While there has not been any definitive legal authority on this topic as yet, at least one study has indicated that x-ray images may contain biometric information that can uniquely identify a person, and so may qualify as PHI.[3] Individual institutions may have differing policies on sharing x-ray information, so it is advisable to check affiliated institutions' social media or privacy policies to determine appropriate use limitations and consent requirements, if any.[4] Neither HIPAA nor the policies used as examples here specifically address x-rays.

Derivatives[edit]

In a derivative of a medical image created in the U.S., added annotations and explanations may be copyrightable, but the medical image itself remains Public Domain.

An extensive definition of the term is given by the United States Copyright Act in 17 U.S.C. § 101:

A “derivative work” is a work based upon one or more preexisting works, such as a translation...[note 1] art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

17 U.S.C. § 103(b) provides:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

From books, journals and websites[edit]

Works including Public Domain images, such as books, journals and websites, are generally copyrightable as a whole, but this doesn't change the status of each individual Public Domain image.[5] Therefore, it is arguably legal to use medical images from books journals and websites if it is otherwise in line with the aspects presented in sections above, if there is evidence that those medical images were acquired in the United States (which may not necessarily be the case even if the work is published in the U.S.).

Nevertheless, there is no precedent court decision in the matter, so publishers may still possibly start a legal process against such usage from their works. Therefore, the safest method is to ask the publisher for permission (through OTRS) for such usage, or find an image with a compatible license instead.

Non-medical radiography[edit]

A non-medical radiograph.

Compendium: Chapter 300 may not apply for non-medical radiography.

As with all copyrighted works, for someone to copyright a photograph, that photograph must contain “a degree of originality.”[6] In clarifying this requirement, the Supreme Court explained that, in order for works to have a copyright, the work must possess “at least some minimal degree of creativity.”[7] Yet this creativity does not have to pass a very high threshold, as the court held that copyright existed “no matter how crude, humble, or obvious” the particular spark of creativity.[7]

The Supreme Court specifically applied these principles to photographs in a late 19th century case, Burrow-Giles Lithographic Co. v. Sarony. At the time, courts had not definitively determined if photographs could be copyrighted, and Burrow-Giles argued that in distributing photographs of Oscar Wilde, they had not violated any copyrights, as the photographs were mere reproductions of Wilde’s physical features.[8] The Court however, held that, to the extent a photographer contributed original elements above the mere reproduction of Wilde’s countenance, that photographer could claim copyright in the resulting picture.[9] A photographer’s contributions could include posing the subject, selecting the backdrop and surroundings, using different lighting and camera settings to achieve a particular effect, or getting the subject to take a particular pose or expression.[9] Despite the multiple factors the Court used in Burrow-Giles to analyze the photograph, there is no definitive test to determine the copyrightability of a given photo.[10] Nevertheless, for medical imaging, originality/creativity could possibly include image annotations.

Although these cases provide a good overview of the types of elements that a court would consider in determining the copyrightability of x-ray images, they unfortunately do not provide a hard rule to follow. The circumstances of each x-ray will have to be examined, and the amount of creativity and original input provided by the person taking the image will determine whether copyright protection exists.

Works created in Germany[edit]

In Germany x-ray images as well as MRT, ultrasound, PET and scintigraphy images are protected by (copyright-like) Related rights or neighbouring rights per §72 UrhG [1] like “simple images” (Lichtbild). This protection does not require creativity (as would be necessary for regular copyright protection) and lasts only for 50 years after image creation, if not published within 50 years, or for 50 years after the first legitimate publication.
This position is supported by scholarly legal literature (Schulze, in: Dreier/Schulze, 2013, §72 Rdnr. 6 w. reference to Schricker/Vogel §72 Rdnr. 18 and Wandtke/Bullinger/Thum §72 Rdnr. 10[2] and Thum, in: Wandtke/Bullinger, UrhG, 32009, §72, Rn. 15.), by legal commentaries, such as K. Hartung, E. Ludewig, B. Tellhelm: Röntgenuntersuchung in der Tierarztpraxis. Enke, 2010[3] or T. Hillegeist: Rechtliche Probleme der elektronischen Langzeitarchivierung wissenschaftlicher Primärdaten. Universitätsverlag Göttingen, 2012[4] or S.C. Linnemann: Veröffentlichung „anonymisierter“ Röntgenbilder. Dent Implantol 17, 2, 132-134 (2013)[5], and indirectly by a ruling of a German 2nd-level court (LG Aachen, Urteil v. 16. Oktober 1985, Az. 7 S 90/85[6]), which mentions copyright in x-ray images, and by the Röntgenverordnung of Germany, a federal regulation about the protection against damages by x-rays, which in §28 Abs. 5 twice mentions the “Urheber” (author/creator) of x-ray images[7].
The letter of the law grants this right to the "Lichtbildner"[8], i.e. the person who created the image. The literature seems to uniformly consider the medical doctor, dentist or veterinary physician as the rights holder, which may result from the circumstance that in Germany many x-rays are performed in ambulatory setting and that the doctor prescribes the settings for the individual imaging.

Works created in the United Kingdom[edit]

Medical images created in the United Kingdom will normally be protected by copyright due to "the high level of skill, labour and judgement required to produce a good quality x-ray, particularly to show contrast between bones and various soft tissues".[11] The Society of Radiographers believe this copyright is owned by employer (unless the radiographer is self-employed -- though even then their contract might require them to transfer ownership to the hospital). This copyright owner can grant certain permissions to whoever they wish, without giving up their ownership of the copyright. So the hospital and its employees will be given permission to use such radiographic images for the various purposes that they require for medical care. Physicians employed at the hospital will, in their contracts, be given the right to publish patient information in journal papers or books they write (providing they are made anonymous). Patients may also be granted permission to "do what they like with" their own image -- whether this is informal or formal doesn't much matter -- nobody is going to be suing the patients if they upload their MRI to Facebook.

The UK General Medical Council's ethical guidelines indicate that the Council does not require consent prior to secondary uses of x-ray images.[12]

Works created in Sweden[edit]

The Cyber Law in Sweden (pg. 96) states: "Pictures can be protected as photographic works or as photographic pictures. The former requires a higher level of originality; the latter protects all types of photographs, also the ones taken by amateurs, or within medicine or science. The protection requires some sort of photographic technique being used, which includes digital cameras as well as holograms created by laser technique. The difference between the two types of work is the term of protection, which amounts to seventy years after the death of the author of a photographic work as opposed to fifty years, from the year in which the photographic picture was taken."

Medical imaging may possibly be included in the scope of "photography", similarly to a U.S. statement that "MRI images, CT scans, and the like are analogous to photography."[13]

Ownership in X-Rays[edit]

Generally speaking, the person who takes a photograph holds any copyright in the photograph.[14] Copyright accrues to the photographer because the photographer provides the necessary originality. The subject of the picture, while they may have legal rights under the doctrine of the right of publicity, does not generally have any claim to the photograph’s copyright.[14]

Unfortunately, the situation of x-rays will not necessarily conform to a simple solo photographer model. The necessary creativity and originality could arguably come from a physician who orders an x-ray taken at a particular angle or for a certain length of time, rather than the technician who carries out the orders. If multiple people provide original elements with the goal of producing a common design, then these people might share the copyright as joint authors.[15][note 2]

The situation gets more confusing when the doctrine of work for hire comes into the picture. Works prepared by employees within the scope of their employment qualify as works for hire, and in these cases the employer holds the copyright, not the employee.[16][note 3] Furthermore, contracts between hospitals, radiology technicians, and physicians might explicitly assign copyrights to a particular party.

Given these complications, any analysis of who holds the copyright in a particular x-ray will have to consider the specific facts of the place where the x-ray was taken. Depending on the circumstances, a radiology technician, radiologist, consulting physician, physician group, hospital, or some combination thereof, may hold any copyright that exists.[note 4]

See also[edit]

Notes[edit]

  1. , musical arrangement, dramatization, fictionalization, motion picture version, sound recording,
  2. This summary considerably simplifies the joint authorship doctrine, and any question of whether joint authorship exists for a given x-ray will require a detailed examination of the facts and circumstances of the x-ray’s creation.
  3. The work for hire doctrine is more complex than the simple analysis presented here. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) the Supreme Court established a multi-factor test for determining whether a given work qualifies as work for hire. Any work for hire analysis should apply this test to the facts of the case.
  4. Some hospitals and medical associations have licensing information available on their websites, and there are online compilations of freely licensed medical images, such as http://web.archive.org/web/20120324070305/http://toby.library.ubc.ca/webpage/webpage.cfm?id=518

Public Domain tags at Wikimedia Commons[edit]

References[edit]

  1. Craigslist Inc. v. 3Taps Inc., 942 F.Supp.2d 962, 976 (N.D. Cal. 2013) (“Interpretation of copyright law in the Compendium II is ‘entitled to judicial deference if reasonable.’). Available at http://www.dmlp.org/sites/dmlp.org/files/2013-04-30-Order%20Granting%20in%20Part%20and%20Denying%20in%20Part%20Motions%20to%20Dismiss,%20Granting%20Motion%20to%20Bifurcate.pdf; Accessed Sept. 25, 2014.
  2. HIPAA 45 CFR Part 160.103 (2013). Available at http://www.hhs.gov/ocr/privacy/hipaa/administrative/combined/hipaa-simplification-201303.pdf, Accessed Sept. 17, 2014.
  3. Lior Shamir, et al., Biometric Identification Using Knee X-Rays, Int. J. Biom. Jan. 1, 2009; 1(3): 365-370. Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2748324/, Accessed Sept. 17, 2014.
  4. Hospitals' social media policies range from requiring express written consent from the affected patient before posting any material deemed private or personally identifiable, to vaguely not permitting posting photos that violate a patient's privacy. See e.g., Social Media Policy, Yakima Memorial Hospital, Available at http://www.yakimamemorial.org/media-center-social-media-policy.asp, Accessed Oct. 1, 2014; Social Media Policy, Whidbey General Hospital and Clinics, Available at https://www.whidbeygen.org/about-wgh/social-media-policy, Accessed Oct. 1, 2014; Social Media Policy, Cleveland Clinic, Available at http://my.clevelandclinic.org/about-cleveland-clinic/about-this-website/social-media-policy, Accessed Oct. 1, 2014.
  5. "Welcome to the Public Domain". Stanford University Libraries. Retrieved 2017-10-07. 
  6. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991).
  7. a b Feist, 499 U.S. at 345
  8. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884)
  9. a b Burrow-Giles, 111 U.S. at 60.
  10. See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 309 (S.D.N.Y. 2000) (citing examples of cases where other factors were considered)
  11. The Law of Photography and Digital Images (2004)
  12. Recordings for which separate consent is not required, General Medical Council, Available at http://www.gmc-uk.org/guidance/ethical_guidance/7840.asp, Accessed Oct. 1, 2014. None of the aforementioned sources are legally binding and court outcomes may vary.
  13. "Laser Bones: Copyright Issues Raised by the Use of Information Technology in Archaeology" (PDF). Harvard Journal of Law & Technology 10 (2). 1997.  (pg. 296)
  14. a b 1 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 2.08[E][1] (Matthew Bender, Rev. Ed.) (citing Landau v. Cosmetic & Recon. Surgery Ctr., Inc., 158 F.R.D 117, 119 (N.D. Ill. 1994).
  15. 17 U.S.C. § 201(a), 17 U.S.C. § 101 (“A ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”) See also Nimmer on Copyright § 6.03.
  16. 17 U.S.C. § 101