Ramifications of IceTV

Last February, Gordon J ruled that there was no copyright in White Pages subscriber listings and (perhaps more surprisingly) Yellow Pages listings. Now, Stone J has applied IceTV (here and here) to find that copyright did not subsist in medical records held by a range of general practitioners.

Primary Health Care (PHC) is a publicly listed company that has been buying up medical practices. As part of the purchase, the medical practitioner contracted to work at the new practice for a period. The vendor practice’s patient records consisting of (1) consultation notes, (2) prescriptions and (3) referral letters were transferred to the new PHC practice. PHC claimed deductions from its income tax for depreciation of the value of the copyright said to subsist in the patient records and the Commissioner disallowed the claim.

Stone J accepted that copyright subsisted in the sample patient referral letters written by the medical practitioners and one sample consultation note (the so called di Michiel patient 6), but rejected the claim to copyright in all the other sample patient records. Her Honour did note that her ruling was not a finding that copyright could never subsist in any patient records, only that it did not subsist in the particular samples addressed in the case.

The case could easily become a ready instructional tool for students and “new” intellectual property lawyers.

The consultation notes

Each practice maintained a file for each patient. The file usually consisted of a summary sheet which contained information such as the patient’s name, address, age, medicare number and, sometimes, important medical issues. This information was usually taken down by the receptionist or other clerical staff. In addition, there were cards, or sheets of paper, or in some cases electronic records containing a series of notes entered sequentially about each consultation with the patient.

All the notes recorded for di Michiel patient 6 were in fact made by Dr di Michiel himself. In the case of all the other samples tendered in evidence, however, the individual notes were made by different practitioners: sometimes the principal, sometimes an employee, sometimes a locum and sometimes another partner in the practice.

This led to PHC’s first problem.

Stone J held that the consultation notes where the entries were made at different times by different practitioners were not works of joint authorship. Her Honour did accept that that, at least in some cases, the consultation notes for each patient could be seen as a continuous narrative. They were not, however, the fruits of a collaborative effort in which the contributions of each author could not be distinguished. To the contrary, each individual contribution could be simply identified by looking at the different handwriting for each entry. (Hmm. I wonder what would happen if all the entries were made electronically and it was not possible to identify who made them?)

A first consequence of this conclusion was that large swathes of many of the consultation notes fell out of consideration as, following IceTV, (1) the person who had actually written them – the author – had not been identified and (2) nor was it established that those unidentified individual authors were “qualified persons” as defined in s 10(1).

The principals of the sample practices (well, some of them) were able to identify various individual entries in particular consultation notes that they had written. That, however, led to the second problem.

Some entries were simply listings of medical conditions. Three examples particularly relied on by PHC by 3 different doctors for 3 different patients were given in [127]:

(a) Triferne 28 Microgynon 20 C&N
(b) H/T, NIDDM, Asthma
(c) Hypertension, Uterine Fibroids, Pagets D, Lumbar Disc Deg

While these entries conveyed information, her Honour held that such clinical data and the names of particular medications did not originate with the doctor who recorded them.

Some were more developed – 3 further entries for 3 different patients:

7kg – growing well. On fresh milk and vitamins

Now c/o diarrhoea – possibly antibiotic induced …

Last 2/12 notices wheezy breathing if lies flat – associated with dry irritant cough – Says doesn’t feel SOB

These too “were not sufficiently substantial to qualify as works the product of independent intellectual effort directed at expression.” Stone J explained at [133]:

None of this denies the intellectual effort and professional skill needed to form the diagnoses, to select methods of treatment or to understand the significance of clinical data that is recorded, however, copyright protects a form of expression not this underlying expertise.

On the other hand, Dr di Michiel patient 6 record, which did constitute a continuous and single work as a whole, was an original work.

Sample prescriptions

The sample prescriptions [113]-[114] and summary notes were at [135] similarly too insubstantial to qualify “as original literary works embodying independent intellectual effort directed towards expression.”

A problem of assignment

A further problem for PHC was that only one of the sale  agreements included an express assignment of copyright. Stone J refused to infer an intention to assign the copyright, as distinct from the property in the physical record, from the sale of the medical practice as a going concern. It simply wasn’t necessary to infer such a term. The lack of such necessity was supported both by the fact that PHC did not claim copyright in third party documents forming part of the patients’ medical records, such as x-rays and letters from specialist consultants, and a consideration of how the records were in fact used after the sale.

No use of copyright

As to the second point, while PHC claimed that the copyright was used after the sale, most of the evidence was not consistent with this. In one case, her Honour accepted that the records had been transferred into a computerised database (and so the copyright was used) but, in the other cases, the most that could be said was that some information only had been used.

Primary Health Care Limited v Commissioner of Taxation [2010] FCA 419