Re: copyright in x-rays?

Helen,

Being just up Swanston St. from you, it would only be polite to reply!

I thought this would be a simple question, but the more I delved the more I realized what a can of worms you have opened up for yourself!

On Mon, 21 Feb 2000, Helen Dunne <hdunne[_at_]mov.vic.gov.au> wrote:
>
> I have two questions; the first is whether x-rays are protected by
> copyright and the second is who, within a hospital system can/should
> legally sign permission for an x-ray to reproduced.
>
> I am part of a team at Museum Victoria in Melbourne, Australia, that
> request permission for several thousand *works* to be reproduce as part
> of our exhibit displays and multi media. One category of work are
> x-rays, reproduce for our Human Mind and Body program. A little whila
> ago I was informed by a copyright lawyer that x-rays are to be treated
> in the same category as photographs.
>
> Since then and given some of the opinions I have read on this list, I
> am wondering if I have been advised correctly regarding the x-rays. I
> would appreciate any opinion, particularly Australian ones, whether you
> understand x-rays to be protected by copyright or not.

That sounds pretty spot on to me. The rules for photographs are a little complicated. For photographs taken before 1 May 1969, copyright lasts 50 years from expiration of the year in which it was taken (if you have access to some older x-rays). For photographs taken on or after 1 May 1969, copyright lasts 50 years after the year in which it was first published (not really relevant to you) or indefinitely if unpublished.

BOTTOM LINE: if the x-ray was taken on or after 1 Jan 1949, copyright is an issue (I don't no much about X-ray technology but I presume it predates this). Note that the patient may still be able to prevent the hospital from disclosing such x-rays.

> Some of the hospitals we have been contacting to request their
> permission, find it difficult to find someone who will address and
> grant us permission. This reaction is not altogether unusual given
> how many people at large are unaware of copyright issues. If our
> procedure of requesting permission is unnecessary, it would be good
> to know so we can abandon it. If it is necessary, could anyone
> suggest a way to best address this situation of hospitals not knowing
> how to handle such a request, and who may be the appropriate person
> within the hospital system to grant the permission.

Determining who owns that copyright is complicated.

Under s 35(2), the owner of a photograph (artistic work) is the author. http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s35.html

Under s 10, this is the person who first reduced the work to material form (i.e. the person who took the photograph). http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html

But under s 35(5) (an x-ray is a portrait, commissioned by the patient and is therefore owned by the person taking the photograph), but the patient, if informed of the purpose of the work (the courts would almost certainly infer an implied expectation that the x-ray only be used for clinical purposes) the patient has a right to prevent any other use of the work (i.e. the public display of that work). http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s35.html

Except that the High Court in _Breen v. Williams_ has (wrongly, in my opinion in a throw away line) interpreted this section to mean that the patient owns the photograph!!!!
http://www.austlii.edu.au/au/cases/cth/high_ct/unrep277.html

This case also affirms that the medical practitioner is under an obligation not to disclose confidential information of the patient without their consent and discusses broader issues than copyright (all of which are relevant to this issue in my opinion).

The weaknesses of _Breen_ were recognized in _Health Services for Men v D'Souza_ [1999] NSWSC 969

 "Observations relating to ownership of medical records were made in  the judgments in the Court of Appeal and also in the High Court in  Breen v. Williams (1994) 35 NSWLR 522 and (1996) 186 CLR 71, and in  my unreported judgment at first instance. That case was principally  concerned with the right of a patient to have access to the patient's  medical records, and ownership questions were considered only  incidentally. This is not a field in which there is a large or clear  body of judicial opinion and regard must be paid to expressions of  opinion even though they were not grounds for decision."

_D'Souza_ supports the notion that the patient owns x-rays explicitly at Para 26 and by approval of the quoted text, Para 36 (despite the clear wording of the legislation).

S.35(5) appears to have been correctly interpreted (but without having regard to the High Court dicta!) in _Matthews v. ACP_ http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/1122.html

This case also supports the view that s35(5) operates to the exclusion of the other provisions and gives rise to a right to prevent unanticipated uses of the portrait. This means that the radiographer not the hospital owns the x-rays (except that the High Court has conveniently confused this issue).
http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s35.html

To get technical, _Matthews_ is binding on a Victorian court but _Breen_ and _D'Souza_ are not. Having said that, _Matthews_ did not cite _Breen_ and it is a brave judge that disregards dicta from the High Court so a judge can go either way on this one. Even with the _Matthews_ interpretation, you still need permission from the patient, but you need permission from the radiographer as well.

Note also that under 127(1), I would presume that the name of whoever made the x-ray as it appears on the x-ray will be presumed to be that of the author for the purposes of copyright law. http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s127.html

BOTTOM LINE: To be safe, you certainly need permission from the patient no matter how old the x-rays are. Given how badly the courts have actually interpreted the legislation, I would also recommend getting permission from the actual radiographer who pressed the buttons (and, to be really sure, from the radiographer's employer at the time the x-rays were taken - this would probably have to be somebody pretty high up in the hospital's administration, an officer with the ability to bind the hospital as a corporate entity).

Sorry to be the bearer of bad news.
Regards,
Tim

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| Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons)
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