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Commons medical diagnostic images under threat from unresolved ownership

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By James Heilman
James Heilman edits as Jmh649 or "Doc James" on Wikipedia. In real life, he lives in Canada and works as an academic professor and emergency room doctor.
The views expressed in this op-ed are those of the author only; responses and critical commentary are invited in the comments section. The Signpost welcomes proposals for op-eds at our opinion desk.
The featured medical image that is up for deletion on Commons

Medical images have transformed many aspects of modern medicine. Over the past two decades the increasing sophistication of MRI, CT-scanning, and X-ray techniques has made these technologies the cornerstone of diagnosing a range of conditions, replacing what used to be largely guesswork by doctors. They can be the difference between life and death for a patient, and their importance is underlined by the tens of billions of dollars spent on them annually just in North America. For Wikimedia Foundation projects, advanced images are now a powerful tool for describing and explaining, and educating our worldwide readership of medical articles.

But somehow these images have fallen through the copyright crack because each image potentially involves a raft of stakeholders—both individuals and institutions ...

This legal fuzz was brought home with a thud on September 16 on Commons, when User:Eleassar nominated for deletion a featured image of the human brain, generated by a CT scanner. The image had been uploaded by a long-standing Wikipedian who is the subject of the image. Eleassar’s argument is that copyright for the scan belongs with the X-ray technician. If this position is upheld by Commons it may result in the deletion of the great majority of radiological imaging, which has been contributed by the patients or the physicians involved in their creation. To make matters worse, open-access publishers do not require release by the X-ray technologists, so we would likely lose those images as well.

This nomination for deletion has brought up a fundamental question: are diagnostic images copyrightable, and if so, who owns the copyright? Is it the patient, the technician, the radiologist (a medical specialist), the doctor who ordered the creation of the image, the hospital, the first person who publishes the image, or are such images by default in the public domain.

The law says very little on the question and a bunch of us have been playing amateur lawyer now since this case arose. A WMF legal intern provided an opinion which was more or less "the law has no idea": "The copyright office takes the position that X-rays are not copyrightable". Complicating matters further, some degree of creativity is required not just in the United States but in nearly all countries, yet "Anyone who has prepared a photographic picture has an exclusive right to make copies of that picture".

Wikimedians have put a number of arguments, including:

1) Diagnostic X-rays are the same as photos, and thus the person who presses the button owns the image. 2) Copyright requires "intellectual creativity". Radiological images are created on the basis of strict guidelines. No creativity is allowed. And thus they are not copyrightable. 3) Similar arguments used to support the deletion of X-rays can be made for ECGs—both types are created on the basis of electromagnetic waves at the press of a single button. Will we need to delete the thousands of ECGs on Commons? 4) What about the sculpture your plumber has created under your sink or your electrician within your walls? Are you allowed to take and upload a picture of that without his or her consent? Or do you need copyright release?

So what does the publishing world do? I have asked multiple publishers and academics from many countries. They all agree that copyright is not owned by the tech. Publishers state that they just assume that the author has "taken care of it". Authors state that they simply publish and do not feel they needed permission from either tech or hospital as long as the images were anonymized.

Is it country-dependent? Some are arguing that the laws pertaining to this in Sweden and Germany are different from those in the US and the UK; so while images might be allowed from some countries, they might not from others. The experts I asked from Sweden, however, viewed the laws the same as those from the US and UK. More opinions are being sought.

A number of radiological images have been deleted on the basis of the precautionary principle over the years.

  1. File:Foot_xray.jpg
  2. Image:Sacrococcygeal-teratoma-001.jpg

With tens of thousands of images at stake, representing thousands of volunteer hours of time, the discussion has become heated, with a few insults beginning to fly. To solve the dilemma, I have started a request for comment on Commons to bring more voices to the table. Having asked at least a dozen lawyers and getting an even greater number of opinions, the question is: how do we resolve the unknown?

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In the U.S., patients have a clear right to physically possess their medical records including images. I've always assumed that these records are a work for hire, so if anybody owns the copyright, it is the patient. If the US copyright office say that the images are not copyrightable, then who on Commons has the standing to say they are wrong? In either case, it looks like the patient in the US has a clear right to upload them and claim that they are his or her "own work." Smallbones(smalltalk) 04:36, 6 October 2013 (UTC)[reply]

In the US, patients pay for their imaging, don't they? Or their health insurance does, which patients pay for. Tony (talk) 06:05, 6 October 2013 (UTC)[reply]
Paying for something is very different from employing a person to do it. Work for hire applies only to the latter. (In the US, it also applies to certain specific types of works performed under contract, where the contract so specifies, but these do not generally include radiological images.) --Avenue (talk) 11:13, 6 October 2013 (UTC)[reply]

Thanks for bringing this to our attention. This article needs an illustration - preferably of one of the images proposed for deletion... they are still ok to use :) --Piotr Konieczny aka Prokonsul Piotrus| reply here 06:06, 6 October 2013 (UTC)[reply]

Added Doc James (talk · contribs · email) (if I write on your page reply on mine) 06:11, 6 October 2013 (UTC)[reply]

Somewhat off-topic, but re: "Will we need to delete the tens of thousands of ECGs on Commons?", why do we have tens of thousands of ECGs on Commons? Is there really that much variation among ECGs that a couple of hundred isn't enough? --Guy Macon (talk) 08:10, 6 October 2013 (UTC)[reply]

I organized the donation of 3000 or so ECGs here [1]. There may only be thousands not 10,000 thus changed. ThanksDoc James (talk · contribs · email) (if I write on your page reply on mine) 08:12, 6 October 2013 (UTC)[reply]

Does the Signpost have any guidelines they follow for providing balanced views on a subject, especially while it's the focus of an ongoing RFC? One-sided calls to arms like the above don't seem terribly helpful. --Avenue (talk) 08:33, 6 October 2013 (UTC)[reply]

I am sure they would be happy to have you publish an op-ed next week. We could have a whole series of these. Doc James (talk · contribs · email) (if I write on your page reply on mine) 08:41, 6 October 2013 (UTC)[reply]
As marked on the top, this is an opinion piece and therefore not beholden to the traditions of journalistic balance. We can publish a rebuttal, but that's something to discuss off-wiki. Thanks, Ed [talk] [majestic titan] 22:01, 6 October 2013 (UTC)[reply]

This is a complex issue and one cannot invent a legal argument based on common sense and analogies with other laws. The law doesn't work that way. The medics (including those who have published such images in articles in journals) are generally surprised that such images may be copyright or have mixed opinions over who owns them. There are a number of "rights" involved. The rights requiring patient consent for publishing images are quite different to copyright (and anyway, most radiographic images don't require patient consent as they are anonymous). A common-sense argument about the artistic or originality of medical x-rays would seem to indicate they are not copyrightable. However, some countries (like the UK) have a ridiculously low threshold of originality. And other countries have "related rights" that provide similar protection for "photographs and images similar to photographs" even if purely mechanically generated (such as a passport photo machine, or CT scanner). Ownership of one's patient notes or the sense of ownership a physician (including a radiologist) may have over the images they have requested for their patients is irrelevant. The image is taken by a radiographer who is the equivalent of the photographer. In some circumstances and countries that may mean the radiographer is really the copyright owner. In most countries, however, work-for-hire rules mean copyright goes to the employer: the hospital. What is interesting is that we have as yet found nobody at a hospital who appreciates they own these assets or who has ever signed a document transferring such ownership to a medical journal for publication.

The publishers certainly believe these images are copyright and many of them believe they have the copyright for the images they have published. How they have achieved this is as yet unclear: they ask the authors of a medical paper for all relevant permissions, but these author's don't then appear to follow through and so sign as though they have the permission or own the rights themselves. This convenient situation has gone on happily and unchallenged for years without anyone minding. After all, if the owners of the images don't care, then they'll never sue. But now users at Commons have started to question it. Rather than come to some pragmatic solution, we have a situation where potentially thousands of images representing hundreds of hours of work by medical professionals could be deleted. Commons' "precautionary principle" is a hazard here because it tends towards deletion where there is any doubt.

I think the discussion on Commons could well do without more amateur lawyers piling on their opinions. Nor does it need people !voting. The WMF have said now that they are investigating this. That is essential IMO. But also Commons needs people to consider whether their policies are working for them or against them. Commons is in the same boat as Open Access publishers. We require images to have the same licence terms as them. I think there is a problem with their procedures just as there is with ours. I hope perhaps together Commons and the Open Access publishers can work out the legal situation and a practical solution to getting permissions where required. -- Colin°Talk 08:34, 6 October 2013 (UTC)[reply]

Yes that is sort of my reading of the situation. Thanks Colin. Doc James (talk · contribs · email) (if I write on your page reply on mine) 08:41, 6 October 2013 (UTC)[reply]
Thanks for your thoughtful post, Colin. There's much I agree with there. --Avenue (talk) 08:59, 6 October 2013 (UTC)[reply]

First off, if the images are copyrightable, they are decidedly not so for the technician who took them. Any copyright, at most, would devolve to the employer of the technician only, just as a movie cameraman does not have copyright to a film. That publishers assert copyright on their own suggests that the hospital did not assert copyright, so we have that as a pretty clear precedent. I would note that a publisher asserting copyright to a book does not mean the copyright properly applies to every image in such a book, so that argument is quite weak, and the fact that authors of a paper waive copyright does not mean they actually ever held a copyright on the material themselves. Thus - if a specific patient is in possession of the images, and waives their own copyright to such images, that should be more than sufficient. If Open Access attests that the authors of articles obtained such waivers from patients (providing the patient is alive) or their assigns, then that also is sufficient. Most of the rest is counting angels on a pin. The fact that the US law does not appear to treat the images as copyrightable may well be salient, as if they are not copyrightable, then they can not be subject to copyright provided they were obtained lawfully. Collect (talk) 12:31, 6 October 2013 (UTC)[reply]

This sort of amateur lawyering is really unhelpful. It doesn't reflect the law (or scholarly legal opinion) in any country let alone considers that there are other laws that matter beyond the US. The image that started this recent debate was taken in Sweden. -- Colin°Talk 16:27, 6 October 2013 (UTC)[reply]
I Just noticed the "amateur lawyering" barb -- as I had to be aware and cognizant of copyright law for two decades per contract, and I had earlier taken courses regarding patent and copyright law, and I also participated in discussions about the Internet and copyright with such total amateurs as Jonathan Zittrain, I appreciate that you are absolutely aware that I am an "amateur" LOL! Cheers. Collect (talk) 20:01, 22 October 2013 (UTC)[reply]
The speculation of editors counts for nothing on Wikipedia. Please cite reliable sources that confirm your interpretation of copyright law wrt medical radiographic imaging. That's all that matters and what I'd expect a professional would do. -- Colin°Talk 21:59, 22 October 2013 (UTC)\[reply]
Huh? You made a claim which I refuted, now you say that anyone with decades of work in the trenches of the Internet and Copyright issues from the early 1980s is "just an editor" whilst you are clearly the one who knows the facts. Perhaps you should doubt your own infallibility here? Collect (talk) 22:07, 22 October 2013 (UTC)[reply]
You haven't refuted the claim at all. That doesn't make you a lawyer with specialism in international image copyright any more than an paramedic can claim to be cardiologist. If you haven't got some reliable source to cite on the issue then please -- we need this sort of speculation like a hole in the head. It doesn't help our uploaders and it doesn't help our re-users. It is time for WMF to get their wallet out and pay for some proper consulting on the issue. Or else forget having any radiology images because the folk on Commons have already started deleting them. Colin°Talk 07:31, 23 October 2013 (UTC)\[reply]
First of all -- this is not an article hence your requirement for reliable sources is sans valeur. Second, I worked in the field for a good number of years, and had to read up on the law, had to discuss this with legal counsel, had lengthy discussions with peers on a private forum which dealt substantially with such sues, and I was contractually obligated thereof. I find your suggestion that this discussion is like a "hole in the head" quite ill suited here, and suggest that the overwhelming consensus here is clear, even if you know everyone else is wrong. I also suggest you read Zittrain's works on the Internet and copyright law, and suggest that he does, indeed, have the credentials you seem to assert that you alone have here. Cheers. Collect (talk) 11:47, 23 October 2013 (UTC)[reply]

The only rational position is to presume that X-rays are in the public domain unless and until someone wins a law-suit by claiming that he owns the rights. If that happens, then there would be a legal precedent which we could use to formulate a standard for licensing the images. JRSpriggs (talk) 13:53, 6 October 2013 (UTC)[reply]

  • The stance that the "copyright for the scan belongs with the X-ray technician" is incorrect. The licensed technician is an employee performing a service for which they are usually compensated. The CT scan,CAT scan etc is in theory the patients only in that they have a right to copies, which have identifying information on them. Patients have a right to copies of all medical records but in the US but the physical records actually belong to the medical provider or medical institution. [2]. --Theda 23:29, 9 October 2013 (UTC).[reply]

  • When a photographer wishes to take photographs that are to be placed in a portfolio meant to be displayed in a public forum such as a museum, said photographer must first have his subjects sign a waiver stating their permission for their image to be used, even when the name of the subject is not used.

The argument that the employer owns the copyright to these MRI photos cannot be correct, as the patient does not sign a waiver for his or her images to be used. Only a liability form explaining the procedure and any possible side effects or possible damage the patient may incur or sustain is signed by the patient. If a study is being conducted on patients that have a certain disease, a patient must first sign a waiver giving the study group permission to use his or her data, even when the data is used anonymously.

This is part of HIPPA, and is meant to keep a person's information within the control of that person. In the course of individually authoring a paper which uses patient data, the doctor must inform a patient that he/she is researching a subject, and must have the patient sign a release form in order to include that person's data even if the person's name is not used in the research paper. Also, if a doctor is shadowing another doctor to fulfill educational requirements, the patient must give verbal consent to both doctors before the student doctor is allowed to view patient background or observe the examination of said patient.

As the above are already covered by Federal law (which I have read), even though I am not a lawyer, I know that HIPPA guarantees that a patient's files belong to him or her, and may not be used for any purpose without explicit legal consent from said patient.

Again, even though I am not a lawyer, I would suggest that the person who gave those images to be used open-source is well within their right to do so. I would also suggest that the person sue the facility that has brought that copyright claim, asking that the consent form giving specific access to use their images (thereby waivering their copyright) to said facility be produced. If this specific form cannot be produced, I would further suggest that the facility be sued for attempted theft of copyright and for attempted violation of HIPPA.

Additionally, as an author, I know that in order to include images I myself have not produced in any article or book that I have written, I must first ask for explicit written permission to use these images, pictures, or photographs. If I fail to do so, I may be sued by the person or persons who first published these images, pictures, or photographs. Even if said items have not been registered with the Bureau of Copyrights and Patents, the ownership of said items lies with the individual(s) that produced these items, even if these items have not yet been published. The copyright mark [(c)] does not have to be used, as copyright law attaches copyright to the above referenced person(s), even without the mark being used, if that person or persons can provide proof of ownership prior to my usage.

This is why sealing a manuscript in an envelope and sending it to yourself via registered mail is referred to as "the poor man's copyright". As long as that envelope bears the "registered" form or stamp and remains unopened, the Court will allow that unopened envelope to be entered into the Court records as an exhibit of proof of copyright. Lakewolf Whitecrow (talk) 06:53, 10 October 2013 (UTC)[reply]

If you do this, send it registered mail and use a tamper-evident envelope. I like the Armorite Security Bags from PolyPak America. They have a security closure that leave a “VOID” pattern on the tape surface when opened, frozen, or heated, and they are designed to be tamper-evident if you try to get in from the sides or bottom. You wouldn't want some lawyer to be able to claim that you steamed the envelope open and switched documents. --Guy Macon (talk) 07:49, 10 October 2013 (UTC)[reply]
You are confusing several rights. The copyright is an automatic thing and is assigned to the photographer (or their employer if work-for-hire is applicable) whether they are taking a picture (or x-ray) of a person or a cat or a museum exhibit. It most certainly does not belong to the subject, the patient. The patient has personality rights for which consent to use the photographs in certain circumstances will be required. However, it is generally agreed that radiographic images do not need patient consent provided any identifying details are removed (such as patient details). I don't know about US HIPPA legislation but this would be in addition to and quite separate from any copyright issues. In addition, I think your description of how copyright works is out of date, but I'm not a lawyer. In our situation, nobody is bringing any copyright claims or suing anybody. This is theoretical amateur lawyering by some editors on Commons. Now if the WMF want to do some theoretical professional lawyering and state clearly what their requirements-to-host are, then that would be a great help. So far, their advice on such images has not be useful, but they are now re-investigating the issue. Colin°Talk 07:50, 10 October 2013 (UTC)[reply]


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