Who owns the copyright to my medical images?
By @edent
· health NaBloPoMo · 20 comments · 650 words · read ~6,611 times.
I popped round to an NHS dentist a few months ago - and they stuck my head on one of these contraptions. 
The Kodak 8000C takes a panoramic X-ray, giving a superior view of your teeth. Nifty. The dentist showed me where my wisdom teeth were and I was impressed with how high resolution the image was.
Afterwards, I asked the dentist if I could have a copy of the scan. She wasn't terribly sure. She thought that she had to charge me for it. Then wondered if there was a data protection problem. Then started talking about copyright and the licence that they had signed with the machine's manufacturer.
As I'm disinclined to argue with anyone wielding a syringe and bone-saw, I asked if I could take a photo of the screen. That was acceptable to her. 
(I have a higher resolution image, but feel weird about posting it online.)
So - who owns the copyright on medical images? Some points to consider:
- The NHS is free at the point of use - but I pay a small fee for dentistry. So am I the customer?
- The dentist and assistant posed me correctly, but left the room and let the machine take my photo. Who created the image?
- I didn't sign anything about copyright.
- Could a manufacturer claim copyright of images created with their tool? What about the data they derive from analysing the image?
- Can a patient be trusted not to do anything stupid with their medical data - like post it on their blog?
As medical technology gets more sophisticated - and more Internet connected - this will become an increasing problem.
Comments from Tweeps:
Viewing my CT Scan in 3D using Linux
Are they exempt from GDPR? A high res dental xray is definitely personally identifiable information... If the manufacturer owns the rights then that would put it outside the NHSs exemption right?
Privacy and copyright are not the same. You can be entitled to get information under the Data Protection Act (pre-2018, or GDPR compatible) but that doesn't mean that you get a copyright interest in it.
patently says:
s9(3), Copyright Designs& Patents Act 1988 says the dentist is the author and hence the default first owner of copyright. If they have a prior agreement with th machine supplier then that may transfer copyright.
Either way, the patient doesn't own copyright - just like you don't (by default) own the copyright in a photo of you taken by a photographer.
I'm not sure s9(3) applies. An x-ray isn't "computer generated": it is now produced digitally because nobody wants to faff around with film-based x-rays if they can avoid, but it isn't "computer generated" any more than a visible light image taken with a digital camera is "computer generated". I just checked Hansard and the House of Lords inserted that clause specifically to deal with "works to which it would not be possible to ascribe human authorship" with a nod towards "artificial intelligence" (which is surprisingly forward-looking for the Lords in the late 80s).
Authorship exists under s9 of CDPA regardless, and it'll be either the dentist (or the NHS trust, if it were done in a dental hospital, or someone with a contractual relationship to the dentist) and certainly not the patient.
Under UK law, the starting point is s4 of the Copyright, Designs and Patents Act 1988 which 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". Legally, x-rays and other medical radiographic imagery ought to be treated the same as a photograph taken with a camera.
Whether a copyright exists at all when you face is basically scanned in a machine is a debatable point. The current test under European law whether there is an "intellectual creation" is from the Infopaq case. The British courts helpfully explicated the test in SAS v World Programming:
"The essence of the term is that the person in question has exercised expressive and creative choices in producing the work. The more restricted the choices, the less likely it is that the product will be the intellectual creation (or the expression of the intellectual creation) of the person who produced it."
Has there been expressive and creative choices? It is certainly arguable that putting someone's head in a big machine and flicking a switch doesn't quite amount to an "expressive and creative choice". Traditional radiography generally does involve some choices based on skill: often an x-ray technician may have to spend some time getting a person to be positioned in exactly the right way to photograph their particular injury, but the machine depicted above seems to have solved that problem for the dental case—you put your head in the position that the design of the machine indicates and then the machine does the rest. Ultimately, we don't really know whether copyright exists on this until a court gives us a determination on it.
If copyright does exist, it'll belong to the dentist, not the patient. It isn't work-for-hire or anything like that.
The US is an interesting contrast: the US Copyright Office's Copyright Compendium states that "the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author", and specifically notes that they believe this category includes "medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment".
(That's an agency determination though and hasn't been tested in court, and so rests on Chevron deference, which may not be around for much longer since the newest Supreme Court justices don't seem so keen on the idea.)
Nicholas Oughtibridge says:
This is an excellent reply Tom. Copyright (if its a creative work) is with the photographer or their employer unless assigned through a contract, but Terence has a legal right to require a licence to use the work through DPA / GDPR subject access request.
Alex says:
Perhaps a stupid question, but why isn't it a work for hire? In private dentistry at least I specifically pay a charge for the dentist to create an x-ray of my mouth, is that not enough to define it as a work for hire?
Maybe different with private dentists, but with the NHS, you are paying a fee for a variety of services bundled together - namely a checkup or a type of treatment. The production of the X-ray is incidental to that end.
Chris Rusbridge says:
Work for hire is a different concept from who pays. If you get a portrait photo made, you pay the photographer, but that doesn't make it a work for hire. The copyright in the photo will belong to the photographer, unless the photographer was employed by a portrait photography company, in which case it would be a work for hire, and the copyright would belong to the company. There are obvious caveats to that, eg there might be an agreement between the photographer (or company) transferring copyright to the subject. There are also weird cases, eg in academia. It seems clear to me that academic staff are employed by their universities to teach and do research, and therefore the copyright in what they write to those ends should belong to the university. When I raised this at one university, I was told, this hasn't been a problem, forget about it!
Nick Mullen says:
Two relevant links from the NHS: 1. https://www.nhs.uk/using-the-nhs/about-the-nhs/your-health-records/ "The information in your records can include your: ... tests, scans and x-ray results"
https://www.nhs.uk/using-the-nhs/about-the-nhs/how-to-access-your-health-records/ which states right at the top of the page... "There are a number of different types of health record, accessing them is free, and healthcare professionals have a legal requirement to allow you to see them."
Copyright isn't mentioned, but I think the above is enough to ensure you to have access next time you visit.
Alex says:
That mentions access and seeing, it doesn't mentioning copying (and by implication onward transmission).
Not an X-ray, but when I had a camera in my bladder (and wasn't that fun!) the consultant, who knew I worked as a Wikimedian in Residence, printed me off a glossy colour picture "for Wikipedia". Due to the lack of clarity over copyright, indicted above, I never uploaded it.
But I took this gruesome (you have been warned!) pic of my surgically-extracted molar myself, so it is on Wikipedia:
https://en.wikipedia.org/wiki/File:Molar_cut_up_during_extraction_-2018-08-29-Andy_Mabbett-.jpgHmm. I had an MRI of my hip done recently under private medical insurance. I was told that I could get a copy of my MRI if I wanted to get a second opinion (diagnosis is immaterial here).
I've tried a number of times to get the radiology department to send me what are essentially the scans of the inside of my own body. They were initially really worried due to data protection, but I did point out that, it's essentially data about me, and that I am requesting it, so that shouldn't be an issue. However, I still haven't actually received the data from them (we're talking weeks now).
They have said they would be "much happier" sending it directly to another medical professional. That's ok, to a point, but I have medical professionals in my family and close friends who are experts in the field (lucky me!) so having access to the actual images would be of personal use.
I am not asserting a copyright here, simply asserting a right to have access to and privately distribute this data for my personal medical needs.
Honestly, I think there could be some clarification needed. I think it's a similar issue. Until the advent of technology allowed the patient to be able to move and store that much medical data around (Dropbox etc... and think about medical records sitting on iCloud?), I don't think this would have been a problem, but I think it will become more and more and issue over time. What happens if private medical data is stolen due to the patient's negligence? Will a waiver have to be signed on release?
Who owns the copyright to my medical images? Link: shkspr.mobi/blog/2018/11/w… Comments: news.ycombinator.com/item?id=313879…
Nathan Middleton says:
If copyright dictates use and my private parts are between me and my physician, dentist, and anyone else I deem essential to disclose to then copyright should be to me. Access to my own material should be given upon payment of service, whether that be through my government provided insurance and co-payment or through personal private insurance, or rather through personal payment.
Medical information is private unless chosen to be disclosed to someone else. The only other copyright involved might be on the methods used for getting the image, or the processes used in acquiring and processing the data (ie. digital code/programming). I don't see how a doctor or medical device supplier could claim ownership or proprietorship over my private data in this case. Unless bizarrely there is an agreement beforehand that this will be the case.
I would think payment for services rendered would be sufficient to give ownership. An artist doesn't own a commissioned photograph anymore than the doctor owns an x-ray.
好問題誒，醫院裏拍的 X 光照片著作權算誰的？🤔
shkspr.mobi/blog/2018/11/w…
Anthony UK says:
My view - as it is your medical data you have a right to access under GDPR but you are not the owner so cannot publish them or excercise any other copyright claims but neither can the dentist or NHS without your consent.
Nik says:
I may be the outlier here then but ive never had any trouble accessing copies of my medical information either dental or cardio, and ive had a lot of cardio in the past few years. I dont bother asking at the time but instead write to the respective data controllers or patient liason teams and ask them for a complete copy of my records, emails, images etc. So far ive had success with each interaction seeing me receive a copy of my records as requested; no question as to ownership or license. Ive even been provided with viewing software for the MRI data.
Now none of this answers the question who owns the copyright; just highlights I think you hit on someone who didnt want to do an extra step and got a lot of fluff responses in return.
Not sure who owns the copyright, but I recently had an MRI scan and when I asked for the images I was asked to fill out a simple form (can't remember what it said, but don't recall anything about GDPR being mentioned.) Once that was done they burned me a CDROM complete with DCOM viewing software and sent me on my way.