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)

Interesting that this question arises today. I've been trying to research what I believe is a related issue: a client has a computer-driven device which is patented. The device isn't functional without using the software. He wants to sell the device, but license the software, charging a per-use fee for the software.

Does anyone see a problem with doing this? (Sounds like per-use fees are becoming interesting to rights holders.) I know there are first-sale issues with the patented device, but can he use copyright to get his per-use fee?

Richard A. Schafer
<schafer[_at_]mail.utexas.edu> Received on Sat Apr 01 2000 - 02:59:11 GMT