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

Mark Davison wrote:
> 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.

Both X-rays and visible light are electromagnetic radiation that differ only in wavelength-frequency-energy. In a vacuum they travel at c, "the speed of light", so I think one would be on shaky scientific ground trying to argue that they were different. The UK's CDPA88 reference to "other radiation" might include electron beams, which are not light but can create images.

IMO, this debate is really missing the point. In the UK, I think the copyright analysis would be that the radiographer (xray technician) is the author, and the first owner would be the radiographer's employer, the hospital.
However, and this is the important bit, the images are part of the patient's medical records, and as such the doctor and hospital have an overriding duty of confidentiality to the patient, under both law and medical ethics. Using them in any way not directly related to the patient's care is arguably a breach of that duty.

-- 
Edward Barrow
Copyright Consultant
edward[_at_]copyweb.co.uk
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