Re: odd copyright issue (medical diagnostic program)

On Wed, 29 Mar 2000, Cynthia Chapman <cbccin[_at_]proaxis.com> forwarded a message from Barbara B. Reitt:
>
> 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?

I am wondering how much the good doctor is prepared to spend on investigation and enforcement, given that his "warning" will doubtless be heeded to the same extent as the admonition againt copying which appears on every single CD ever issued. I wish I could say "good luck" but it's not quite what I was thinking.

In principle, copyright owners should not be disentitled to collect remuneration from commerical use of their propery and, in this context, medical use is certainly commercial. That said, this seems an exceedingly clumsy way to go about it and Mini Mental seems determined to become even mini-er as people and institutions turn away from its product in favour of other diagnostic tools.

I am wondering whether some "first sale" aspect could not arise but that is something on a US-law expert might have some thoughts.

Apart from that -- is this not an attempted unilateral variation of an existing contract between the previous owner/licensor and the users? The original licence seems to have included an actual or implied licence to reproduce the screen. If so, it's a bit late for an assignee (Mini Mental Corp) to try changing the contract at this late stage.

My, but we do live in interesting times.

CS

"Galvanising Ideas"

Colin Seeger, Consultant, Management of Intellectual Property. P.O Box 3227, Tamarama, Sydney, Australia 2026 Tel: (61) (02) 9365 1186, Fax (61) (02) 9365 1286 <seeger[_at_]ozemail.com.au> Received on Sat Apr 01 2000 - 13:43:11 GMT