[LosWochosWeek]

> In my country in Europe the solution is quite easy: I have the right to get all papers and images from my doctors within 10 years of creation.

This doesn't answer the question in the article tho. The question isn't "Who has the rights to a copy of my medical images". It's "Who owns the copyright to my medical images".

To answer that question, you'd first have to find out if your medical images are even protected by copyright in the first place. The answer to this question depends wholly on the picture itself.

Let's say a medical image of yours is indeed protected by copyright, then -- even in your country in Europe (regardless of which country it actually is) -- the copyright holder is the person who took the image. Not you. It may very well be that in your country this copyright is restricted by other laws (i.e. Persönlichkeitsrecht in Germany).

[chii]

> the copyright holder is the person who took the image.

only if you didn't contract that person to take the image for you. So it makes sense, imho, that the person who paid for the image to be taken to own the copyright.

[briandear]

Actually, absent a work for hire agreement, that isn’t true [in the US.] I used to be a contract photographer for Reuters, Time, and a bunch of other places you’ve heard of and my standard agreement was a day rate, and the client would have rights to the specific photo they published. All the outtakes were mine and I subsequently could sell those through an agency. On other assignments, specifically corporate and advertising, those would often be a work-for-hire agreement in which case they owned everything I shot. Of course I charged a lot more for those assignments because I wouldn’t be able to make residuals from agency sales. An example is I photographed Ken Lay for Enron as a work for hire. So when the Enron scandal hit, I couldn’t sell anything from that shoot. Another assignment was a Bush family portrait for Reuters in 1998. I was able to sell my outtakes and that made me a pile of money during the 2000 presidential campaign since there was no work for hire agreement. And the Bush’s didn’t have any rights to those photos despite being the subject even though I shot it in their family home.

The point is that work-for-hire has to be explicit. For medical imagery, it would seem that the creator of the images would have the rights, but HIPAA would preclude them using them unless there was a specific release (which is common in teaching hospitals.)

[blowski]

Photographer, software engineer, and restauranteur. That’s quite a career! Any stories?

[dctoedt]

Unfortunately it's not that simple under U.S. law: Under 17 U.S.C. § 201, the image-maker (more likely, his/her employer) is considered the "author," and thus will own the copyright. See https://www.law.cornell.edu/uscode/text/17/201.

Exception #1: The contract could provide for the image-maker to assign the copyright to the image subject. See 17 U.S.C. § 204, https://www.law.cornell.edu/uscode/text/17/204.

Exception #2: The parties could sign a written work-made-for-hire agreement before the image is created, IFF the work is specially ordered or commissioned for use • as a contribution to a collective work, • as a part of a motion picture or other audiovisual work, • as a translation, • as a supplementary work, • as a compilation, • as an instructional text, • as a test, • as answer material for a test, or • as an atlas. See 17 U.S.C. § 101, https://www.law.cornell.edu/uscode/text/17/101.

For the purpose of Exception #2 “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of • introducing, • concluding, • illustrating, • explaining, • revising, • commenting upon, or • assisting in the use of the other work, such as • forewords, • afterwords, • pictorial illustrations, • maps, •charts, • tables, • editorial notes, • musical arrangements, • answer material for tests, • bibliographies, • appendixes, and • indexes; and an “instructional text” is a • literary, • pictorial, or • graphic work prepared for publication and intended to be used in systematic instructional activities. See 17 U.S.C. § 101, https://www.law.cornell.edu/uscode/text/17/101.

[DigitallyFidget]

It actually is simple under US law. https://copyright.gov/comp3/chap300/ch300-copyrightable-auth... Medical imaging is not copyrightable. Bottom of page 21 to middle of page 22.

[dctoedt]

Good to know - thanks. I was aware of the human-authorship requirement — see, e.g., the "monkey selfie" controversy [0] — but I hadn't known that the Copyright Office took that position about medical imaging.

I can imagine that a court might see things differently, given that under Supreme Court precedent [1] it takes comparatively-little human creative effort to constitute an "original work of authorship" as required by the Copyright Act. But it's also likely that no one has ever cared enough about claiming copyright in a medical image to go challenging the Office's position — or that I''m simply not up to date on this area of the law (which isn't part of my day-to-day practice).

[0] https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...

[1] https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R....

[DigitallyFidget]

Oh yeah, in a courtroom, laws are bent, misinterpreted, and ignored all the time. But it's at least declared clearly to the extent that it would have to be ignored in order for a copyright claim to hold up. Courtrooms and lawyers are a unique thing.

I was originally thinking it would fall under the monkey taking a selfie as the technician (not photographer) is merely activating a machine that actually makes an image (and not photo, it's actually a radiograph), like a programmer executing code that has an AI generate an image. Particularly in the case of the auto-panning machines. But everything in this paragraph can be wildly misinterpreted by the eyes and lies of a lawyer, since the user of a camera isn't taking a photo, they're pressing a button and the camera generates an image.

So you're absolutely correct on the "in a courtroom" setting.

[dctoedt]

Radiology technicians do more than just press a button: Every time I've had an X-ray or other imaging, the tech has positioned me; told me to move my arms and/or legs and/or torso and/or head; had me turn just a bit this way or that; etc. I could easily see how a court would conclude that this involved sufficient creativity that the image would constitute an "original work of authorship."

Speaking as a (former) litigator, I think you have a misimpression about what lawyers and judges do in our common-law judicial system. In part, we deal with edge- and corner cases that simply aren't clearly addressed in the statute. (If you're a software developer, you're surely familiar with the phenomenon.)

It could be argued that in a civil case, if a statute doesn't clearly allow the plaintiff to recover, then the court should simply deny the requested relief. But that's not how the Anglo-American system works. Anciently, to help keep the peace, common-law judges tried to figure out, "what would the King do if he were here?" Likewise, in our modern system, they ask, "what was the intent of [Parliament | Congress | the state legislature] in an edge- or corner case like this?" and to grant or deny relief accordingly. Is that a perfect system? No. But it has worked reasonably well for centuries, and so there'd be a huge path-dependence problem in trying to change it.

[LosWochosWeek]

This depends on your country and specific copyright laws. These differences exist mostly between common law and roman law countries.

In Germany there is a distinction between copyright holder (Inhaber des Urheberrechts) and the entity that is allowed to act on the copyright (Inhaber des Nutzungsrechts). If I take a picture that you contracted me to take, I'm the former and you're the latter.

[GuB-42]

Same thing in France.

The one who took the picture has moral rights, no matter who hired whom. These rights are for life and not transferrable, you have them whether you want it or not. It also means you can't put your work in the public domain. These are "respect the author" rights that can be use if someone defaces you work for instance. Parody and satire are exceptions.

The one who hired the one who took the picture has patrimonial rights if the contract says so. Patrimonial rights are essentially the right to make money and the closest to US copyright. These are transferrable.

[wyldfire]

> the copyright holder is the person who took the image. Not you.

But it could be interesting to think about whether a dental X-ray is "your likeness". So even if the dentist holds the copyright, their copyright is burdened/encumbered by the fact that it's a "picture of you". Unless you sign away that right in exchange for treatment, the copyright might not be that useful.

[traceroute66]

> This doesn't answer the question in the article tho. The question isn't "Who has the rights to a copy of my medical images". It's "Who owns the copyright to my medical images".

Yes, but that's kind of the point .... the blog post was asking the wrong question.

In the context of the blog post, "but copyright" is BS and the staff member should have been pulled up on it.

Reason ? GDPR. In Europe access to "personally identifiable information" is basically a god given right, saying "no" is not an option. Therefore ..... X-Ray linked to Patient Record = clearly PII = access granted. End of story.

The providing entity has the right to charge a limited fee for "admin" but that's it.

ALSO From a legal perspective, what contract the provider has signed with the equipment manufacturer is IRRELEVANT. The patient's legal relationship is with the healthcare provider. The onus is on the healthcare provider to ensure they are covered downstream for GDPR release, but lack of downstream coverage IS NOT an excuse to withhold GDPR release.

[andix]

We don’t have the concept of copyright.

[technothrasher]

I don't know of any country in the world that doesn't at least have a concept of copyright, and the vast majority of them have signed international treaties. Maybe Eritrea, Iran, Iraq, Somalia are exceptions? But those aren't in Europe.

[sholladay]

That is... unlikely.

https://en.wikipedia.org/wiki/Copyright_law_of_the_European_...

[kevin_thibedeau]

This isn't a creative work so the applicability of copyright is dubious.

[LosWochosWeek]

How would you know? Whether or not something is protected by copyright is not something you can asses with a blanket statement. Medical images can definitely be protected by copyright.

[littlestymaar]

Can there exist medical images protected by copyright? Definitely I'm you can even find an image made by a photocopier that can be protected by copyright, but that doesn't mean photocopies are usually so.

You're gonna have a hard time convincing a court that your dental radio was in fact creative art.

[andix]

What I meant to say was, that we don’t have the concept of transferable copyright.

[LosWochosWeek]

How does that tie into what I explained?

[marvel_boy]

Yes, we have.