Re: odd copyright issue (medical diagnostic program)

On Wed, Mar 29, 2000, Cynthia Chapman <cbccin[_at_]proaxis.com> wrote:
>
> A fellow editor of biomedical literature has posted the following query
> to me for advice from the members of this listserv; I have promised to
> forward your answers on to her.
>
> Thank you for your responses.
>
> =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
>
> I've encountered a requirement from a copyright owner from whom I have
> sought permission to reprint something which appalls me. Briefly: my
> client is being asked to warn readers that they may not make clinical
> use of a diagnostic screen that is under copyright and that we are
> reprinting without first getting permission and paying a fee to the
> copyright owner. (The screen in question is the widely used Mini-Mental
> State Examination, and the owner of the copyright is a corporation set
> up by the screen's original author, Dr. Milton Folstein.)
>
> I should emphasize that my objection is not to the normal operation of
> copyright law and the need for my client, in this instance, to obtain
> permission before reprinting the MMSE screen. My objection is to this
> author's attempt to control the CLINICAL use of his screen and to derive
> income from its application in medical care generally. I see this as
> both a greedy over-reaching misapplication of copyright law and a move
> that, unopposed, could stifle scientific and medical progress. (Will
> every practitionaer have to pay a fee before making clinical use of
> techniques and treatment approaches described in copyrighted medical
> literature? What a prospect!)
>
> Are any of you aware of anyone's contesting this proviso by the
> Mini-Mental LLC (Folstein's corporation)? Or of any hospital or
> clinic that has agreed to pay the fee before allowing clinicians on
> staff to administer the MMSE to patients? Or of any court cases
> challenging this?
>
> Barbara B. Reitt, PhD, ELS(D)
> Reitt Editing Services
> 560 Nall Farm Road
> Highlands, NC 28741
> (828) 526-9138 (voice & fax)

It is quite clear that copyright protects against the unauthorized reproduction of a copyrighted work, and not against the clinical use of an authorized reproduction. This is overreaching by the copyright owner, pure and simple. It also probably constitutes copyright misuse, which would justify non-enforcement of the copyright.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Mar 31 2000 - 22:27:11 GMT