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.
> 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).
> 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.
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.)
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.
> 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.
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.
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.
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.
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.
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)
> 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.
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.
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.
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.
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.
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.
>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.
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.
> 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.
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 (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.