Doctors fear copyright crackdown on medical procedures 

click to enlarge Treatment: Dr. John Newman of UC San Francisco meets with his patient Arnold Zolotorow; the written tests Newman administers are part of a copyright dispute. - MIKE KOOZMIN/THE SF EXAMINER
  • Mike Koozmin/The SF Examiner
  • Treatment: Dr. John Newman of UC San Francisco meets with his patient Arnold Zolotorow; the written tests Newman administers are part of a copyright dispute.

Arnold Zolotorow repeated after his doctor: “Apple, table, penny.” The 85-year-old then drew a picture, as instructed. When asked to repeat the words he had memorized, he said the first two, but couldn’t recall the third.

That three-minute memory exercise is one of thousands of basic tests that may soon cost more to administer, after a company that holds the copyright for one such test started enforcing its claim.

In March, an elder care organization removed a questionnaire-style mental health exam from its website, citing problems with the copyright holder of another test that uses basic questions, including “What is today’s date?” to test for early signs of cognitive illnesses such as Alzheimer’s disease.

Some experts worry that the medical industry is on the cusp of a copyright nightmare, saying that such copyright enforcement could cripple hospitals’ operations and the future of medical advancement.

“There’s no other way to ask someone, ‘What’s today’s date?’” said Dr. John Newman of UC San Francisco Medical Center and the San Francisco VA Medical Center, who co-authored an article on the topic in the New England Journal of Medicine. “If someone has a copyright that allows them to prevent anyone from developing another test that asks that, there’s no way to avoid that — you either need a license or you get sued.”

Newman said copyrighting also could discourage medical advancement. Traditionally, advancements build on existing procedures and research, but the threat of copyright lawsuits could prevent researchers from improving existing techniques, he said.

Yet the issue may not be that cut and dried, said copyright lawyer Mitchell Zimmerman of Fenwick & West LLP. Copyright protects the written word, but not the idea behind it, he said. For example, a copyright could protect a written test, but does not give the copyright holder a monopoly over tests for that particular medical condition and shouldn’t dissuade others from pursuing new ideas, he said.  

“It is a borderline issue when you have a work that involves ideas like how do you diagnose a mental condition,” Zimmerman said. “It’s borderline whether a particular way to do that is protected by copyright.”

Zimmerman said it’s also questionable whether tests so basic they may lack alternatives can be protected under a copyright.

Newman and co-author Robin Feldman, a law professor at UC Hastings College of the Law, agree the area is uncharted. Until recently, copyrights haven’t been enforced in medicine, either because medical professionals were unaware of their rights or they declined to enforce them in the interest of medical advancement, Feldman said.

To head off the seemingly inevitable growth of medical copyright claims, they are promoting an open-access form of copyright, called Copyleft. It would allow free access for users such as doctors who agree to keep the information free, but requires payment from users who hope to profit from the material, such as textbook companies.

“The question is what type of system will we move to,” Feldman said.

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