Re: CR in X-ray works- More of fireworks than opinions

I don't have the scientific expertise to decide whether an x-ray uses 'light' but if it doesn't, its copyright may be questionable. The wording and history of the Berne Convention provides some insight into the meaning of ‘a process similar to photography’. Article 2(1) of the Berne Convention refers to photographs and works produced by ‘analogous processes’. The emphasis here is on the word ‘processes’ and it seems clear that it is not sufficient to claim that the image produced is similar to a photograph because the wording ‘works producing visual effects analogous to photography’ was specifically rejected during the negotiation of the relevant version of the Berne Convention.[1] <#_ftn1> Consequently, it may be argued that any photograph must use a process that relies on light.[2] <#_ftn2> In addition, s4(2) of the Copyright Designs and Patents Act 1988 (UK) defines a photograph as ‘a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film.” This suggests that older definitions that refer to light but not other radiation may not encompass x-rays. Again, I don't have the scientific background to answer that question.

[1] <#_ftnref1> S Ricektson The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (Kluwer, London, 1988) at 266.

[2] <#_ftnref2> Ibid. See also G Karnell “Photography- A Stepchild of International Conventions and National Laws on Copyright” March 1988 132 at 138 where he clearly states that sound generated pictures are not photographs and casts doubt on the suggestion that a photograph could be other than an image produced by the use of light.

Raza Ahmed Siddiqui wrote:

>Dear Friends.
>
>I could count upto 21 replies to my query..but most of which ended up
>in exhibiting oneupmanship...
>
>Anyways I have some further input to the issue..
>
>The Copyright Act, 1957 of India states :
>
>CATEGORY :
>As per Section 2 (c) of Copyright Act, 1957, which defines ‘artistic
>work’ , photographs are treated as artistic works entitled to
>protection irrespective of its artistic quality.
>
>DEFINITION
>As per Section 2 (s), “photograph” includes photo-lithograph and any
>work produced by any process analogous to photography but does not
>include any part of a cinematograph film.
>
>( So this implies that x-ray's are protected at par with photographs )
>
>AUTHOR
>As per Section 2 (d) (iv) , “author” means , in relation to a
>photograph, the person taking the photograph.
>
>OWNERSHIP
>As per Section 17, proviso (b),
>Subject to provisions of clause (a), in the case of a photograph taken,
>or a painting or portrait drawn, or an engraving or a cinematograph
>film made, for valuable consideration at the instance of any person,
>such person shall, in the absence of any agreement to the contrary, be
>the first owner of the copyright therein.
>
>## So coming back to our discussion..here the patient pays for the x-
>ray..and he usually doesnt sign any agreement with the hospital
>relinquishing his rights..the patient very much should own copyright in
>x-ray taken..
>
>my question was : because here the doctor paid on behalf of the poor
>patients..and preserved the work for research sake..and subsequently
>puts such collection for publishing a book..is the doctor entitled to
>claim rights ? or can other publishers use the same without prior
>permission..as here technically speaking..the patient cannot be
>identified or located after so many years..so as to seek
>license/permission from him..
>
>Has there been any infringment by the second publisher when he uses
>certain x-ray images from the book of the first publisher..wherein the
>first publisher himself doesnt own copyrights..and the true owners
>cannot be identified/located???
>
>Hoping to get some simple answers without further fireworks :)
>
>Regards,
>
>Raza Ahmed Siddiqui
>B.Com(H),LLb,PGDIPR,GCIP
>ADVOCATE
>RAZABHAI (SM)
>INTELLECTUAL PROPERTY LAW ATTORNEYS
>HYDERABAD, INDIA
>Mob : 091-9246531923
>Email : razabhai[_at_]yahoo.com
>URL : http://www.razabhai.com
>
>
>#############################################################
>This message is sent to you because you are subscribed to
> the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
>To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
>To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
>To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
>To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
>Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
>
>Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
>
>
Received on Wed Mar 23 2005 - 04:20:01 GMT