On 20 August 2012 12:30, Tomasz Ganicz <polimerek(a)gmail.com> wrote: I think you are underestimating the skill involved in medical imaging. For example, if you want to take an x-ray of a broken arm, you need to make sure the arm is oriented in the right way and the x-ray is at the right angle so that the break is clearly visible. That sounds like enough creativity to create copyright to me.

On Mon, Aug 20, 2012 at 7:47 AM, David Gerard <dgerard(a)gmail.com> wrote: It's a question of fact, not a question of law.

2012/8/20 David Gerard <dgerard(a)gmail.com>om>: The case I was writting was a set of human tissue pictures taken by a members of research group working in university clinic in my city. This is just an example: http://commons.wikimedia.org/wiki/File:Adenocarcinoma_highly_differentiated… I had discussion about it with our (Wikimedia Polska) lawer and the legal department of the clinic. First of all the research group had agreement from all his patients to publish this pictures in anonymous way (i.e. not revealing to whom belongs the photographed tissues). Then - they claimed, that although their work might be copyrightable, they resigne from any copyright claims and finally their decission was approved by clinic authorities (i.e. clinic had also resign from any copyright claims no matter if they are applicable or not). -- Tomek "Polimerek" Ganicz http://pl.wikimedia.org/wiki/User:Polimerek http://www.ganicz.pl/poli/ http://www.cbmm.lodz.pl/work.php?id=29&title=tomasz-ganicz

On Mon, Aug 20, 2012 at 3:17 PM, geni <geniice(a)gmail.com> wrote: institutional perspective here. The framework is all about controlling the flow of patient information. My partner (a doctor doing residency at the main hospital system in Pittsburgh) would have to go through the Institutional Review Board system to publish medical images, even ones nominally free of identifying information. She'd be able to have them published for certain purposes (case studies and other things that are about medical practice, but are not research per se) without patient permission. For research and other purposes, she would need permission of the patients even for nominally non-identifying medical info. But there aren't any additional hurdles regarding assignment of copyright to the publishers. On the other hand, medical technicians and doctors who create ultrasound images for pregnant women distribute them to the women (and even intentionally frame some as "portraits", with at least a little bit of creativity involved) to do with as they please. I'd say, whatever the copyright status, she'd risk her job by distributing something like X-rays without going through the IRB system. And if she got IRB permission, asserting PD status or copyleft status or whatever wouldn't likely be a problem. -Sage

On Mon, Aug 20, 2012 at 4:04 PM, Nathan <nawrich(a)gmail.com> wrote: Right. But it's worth mentioning... especially if the projects did take the view that the images were public domain. Yep. But it might actually be relatively easy to get good sets of medical images by working through those kinds of systems, and that could work regardless of the copyright status of the images. -Sage

On 08/20/12 12:17 PM, geni wrote: This certainly sums it up. Personality rights are a separate issue, and in most cases it should be easy to separate them except maybe conjoined twins and people who have swallowed a charm bracelet with their name clearly exposed. Breach of contractual rights and employment contracts are also a separate matter. It's actually easier to deal with these because something is spelled out. Our concern is more with situations where nothing is expressed before the problem comes up. My basic view is that the X-ray is copyrightable with the ownership of the copyright vesting in the person who invested most of the originality. If that person is bold enough to be the *first* person to put that image in fixed form there will be a presumption that he has a right to do so. Who is going to challenge him? A DMCA takedown order won't work, because it must reference the work that was infringed as well as the infringement. To get any more than provable damages the copyright must also be registered. It may give comfort to owners to know that copyright in a work is automatic without registration, but the down side of this is a huge assortment of material is copyright where the "true" owner has neither the knowledge or desire for this kind of protection. Ray

On Mon, Aug 20, 2012 at 7:39 AM, Thomas Dalton <thomas.dalton(a)gmail.com> wrote: Against this would be the case cited in the OP (528 F.3d 1258), which specifically discounts the argument that skill=creativity.

2012/8/20 Anthony <wikimail(a)inbox.org>rg>: But the copyright of a work for hire goes to the employer. The X-ray tech would get the copyright, but they're employed by the hospital. The hospital, in turn, is employed by the patient. As such, I would think the patient does own the copyright. Is a similar logic not applied to, say, wedding photos, in which an photographer is employed by a company which is in turn employed by the couple?

On Mon, Aug 20, 2012 at 8:20 AM, Max Harmony <maxh(a)sdf.lonestar.org> wrote: If the X-ray tech is an employee (and the work is created within the scope of his employment, which I am assuming), then, under US law, the tech never "gets the copyright". The employer is the author. The tech is completely out of the loop. As for the hospital being "employed by the patient", not in the sense of work for hire law. For the patient to get the copyright, they would need to enter into a work for hire agreement, the details of which are long and which you can easily find online. Wedding photos are more complicated. I could see an argument, under some factual circumstances, that the couple (and/or the decorator, etc) might own copyright as a joint author. Or they may have employed the photographer directly. Or they may have commissioned the work under a work for hire agreement. Or they might have purchased the copyright in a copyright transfer. Or they might just not own the copyright in the work at all.

In the US, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) governs release of medical information, which includes any medium, including spoken, written, or electronically stored. This includes videos, photographs, and x-rays. The only person legally entitled to release this information is the patient or individual holding medical power of attorney. You can find more information here: http://www.hhs.gov/ocr/privacy/ On Mon, Aug 20, 2012 at 5:38 AM, Dan Rosenthal <swatjester(a)gmail.com> wrote: -- Best regards, Cindy Ashley-Nelson "Yes. *Her again.*" http://en.wikipedia.org/wiki/User:Cindamuse

On 20 August 2012 18:27, Cynthia Ashley-Nelson <cindamuse(a)gmail.com> wrote: Privacy law is generally separate from copyright law.

On Tue, Aug 21, 2012 at 1:19 PM, geni <geniice(a)gmail.com> wrote: Including the US, where WMF is based. -- Freedom is the right to say that 2+2=4. From this all else follows.

On Aug 21, 2012, at 3:17 PM, Todd Allen <toddmallen(a)gmail.com> wrote: [[ciatation needed]] I really doubt non-artistic works are copyrighted as a general rule anywhere (. . . but I have been wrong before). Now clearly being able to judge that X is a utilitarian work is the more normal problem with this argument and why it is seldom used. Diagnostic images are one of the few clear-cut situations. And even if it is only the US, other countries would not recognize copyright on diagnostic images created in the US, which gives us at least the NASA situation. Birgitte SB

On Wed, Aug 22, 2012 at 10:22 AM, Anthony <wikimail(a)inbox.org> wrote: If you define "diagnostic image" as "an image created solely for the purpose of making a diagnosis", then I suppose you've got a clear-cut utilitarian work. On the other hand, this wouldn't include an X-ray which was made by someone who knew the X-ray was going to be used in a medical book.

On Wed, Aug 22, 2012 at 2:49 PM, <Birgitte_sb(a)yahoo.com> wrote: One problem with that is that the X-ray images that you are most likely to find are the most likely to have been created with the intention of being distributed. On the other hand, if "probably no one will sue" is good enough for you, then you really don't need to ask the legal question in the first place. I don't understand that. What are you using the term "human aesthetics" to mean? And even if you're true about most, that still leaves a great number which were not. Many images were in fact designed to be aesthetically displeasing. And many others were designed, like the X-ray image, to objectively depict reality.

On Aug 23, 2012, at 8:05 AM, Anthony <wikimail(a)inbox.org> wrote: I don't understand why "intention to distribute" would be relevant. That is not at all what I said, but you are quite good at striking down an argument which I did not make and do not support! Since there is so little left of what I said, I will rephrase: Diagnostic images are not copyrighted and there are lots of interchangeable images that are equally not copyrighted. If one of these interchangeable images credits someone as a creator, and you are worried they "probably will sue", then use another interchangeable image. Unless, of course, one purposefully wishes to be a jerk about their understanding of copyright. And while I am sure someone will, I wound prefer not to put any more effort in considering the situation. (So please don't misquote me on this issue!) I meant when creating a common photo no consideration is given to composition of the infrared wavelengths. However, whether the photographer is very aware of it or not, aesthetic choices are being made as the overall composition is selected. It is really outside this topic, but I think the aesthetics which happen please/disturb us are often evolutionary. I tend to always be connecting things in my thinking, I didn't mean to have it spill over and muddy things here. Don't read too much into and pretend I just wrote aesthetics. I doubt any one but me would be reading that sentence and wondering whether non-humans would find most pictures to be pleasing. Sorry for confusing the issue. I also wrote a sentence about copyrightable images being designed for "aesthetic effect". While I think the statement you quoted works as *a rule of thumb*, I purposefully did not limit the statement that followed to only *pleasing* aesthetic effects. Yes there are many such images. These types of images are called utilitarian images. Which is what prompted me to write about how copyright hangs upon aesthetic choices. In hopes that it would help people understand why images lacking aesthetic choices also lack copyright. I was very aware there are many such images. I labeled my statement a rule of thumb not a universal rule. I know this all sounds like I am very annoyed. I am really just slightly annoyed ;) Look copyright is really tough. Really. And most people, probably everyone to some degree, misunderstands copyright. I honestly am happy to see you smack down some of my statements, like you did about all the international agreements working as bi-lateral treaties. I learned that Berne is different today, and frankly I think that is awesome. I ran out of low hanging fruit wrt to copyright a long time ago. I really appreciate the opportunity this thread has offered me to gain a nuance to my understanding. Seriously. But I don't appreciate the rhetorical twists that, instead of clarifying the discussion, muddy things by making our that a sentence or two that wrote support a position that I never took. Not that it bothers me personally. But it confuses the discussion immensely for people who may have been struggling to follow it in the beginning. A long time ago, when I knew *nothing* of copyright, this list is where I managed to gather most of the low hanging fruit. Eventually I had to search for understanding elsewhere, but I know people making copyright decisions in the wikis may be using this list as a tool for making those decisions. At one time, I was such a person. So anyways . . . I know it's the internet and all . . . where men are compelled to put on displays of rhetorical prowess as though they were peacocks . . . but please . . . for the children and all that . . . Can we try to avoid picking out the weakest snippets of writing for rhetorical displays and instead focus on the heart of the positions to explore the issue in way that allows us to both improve our understandings? At least about copyright? Birgitte SB

On Thu, Aug 23, 2012 at 8:44 PM, <Birgitte_sb(a)yahoo.com> wrote: By the way, who calls them this? I tried to look up the term "utilitarian image" and couldn't find much of anything. I've heard of the term "utilitarian object". But never "utilitarian image". At this point I'm starting to doubt whether or not Meshwerks even applies.

On Aug 22, 2012, at 9:22 AM, Anthony <wikimail(a)inbox.org> wrote: I believe artistic/non-artistic is accurate for images. Technically it is artistic, literary, dramatic, or musical works. The rules can change a bit as you change mediums, so when we are talking about an image I am talking about copyright wrt to images. I actually expanded on this at the end of my last email. If that doesn't clarify, ask again and explain what gzip is. Copyright, internationally, is bilateral agreements. If it is not protected in the US, it cannot demand bilateral protection elsewhere. It would be based on the jurisdiction of creation. Publication has had nothing to do with the creation of copyright since the 1970's as far as I am aware. Before 1976, in the US, place of publication was significant for determining copyright protection because of the notice requirement. Now copyright is automatic at fixation. Birgitte SB

On Aug 23, 2012, at 7:35 AM, Anthony <wikimail(a)inbox.org> wrote: Publication shortens the copyright term that was enjoyed by the unpublished work. That is the only significance I am aware that the first publication has since the 1970's. However, the Berne Convention is insane. It is not set up as a bilateral treaty like I had thought. (Some of the other relevant agreement are.) It reads: Here is an example of how insane that is. In the US edicts of government are uncopyrightable. A few years ago Oregon "forgot" about this; they notices on their website and actually attempted to enforce copyright on the statues of Oregon. I am not sure how far this went in litigation before they were educated about copyright law. Now in the UK, edicts of government are copyrightable. The UK recently switched its license on the local statute from Crown Copyright to some new "Free Government" license. One way that Berne can be read is that if you had printed a copy of the Statues of Oregon from their website in Oregon; you were not infringing on copyright. However if you had printed a copy of the Statues of Oregon from their website *in the UK*; you were infringing on the copyrights owned by the State of Oregon. And if Oregon had sought to enforce these rights in the UK, they would have been able to. Now this is the really insane part. The US policy relies on common law, so there isn't a quotable statue. The summary is "such material as laws and governmental rules and decisions must be freely available to the public and made known as widely as possible; hence there must be no restriction on reproduction and dissemination of such documents." Now imagine the US federal government passed a law stating that "in order allow for the widest distribution possible, all edicts of government are to be protected by copyright for a term of 1 minute." If that were to happen then Oregon would no longer be able to enforce copyright on the Statutes of Oregon in the UK or any other Berne signatory that does not explicitly revoke the rule of the shorter term (one the "provisions of the Convention" that can invalidate the the quoted idea above). Obviously, I just pulled all this together. And I am "just guessing", as you might say, about how it would actually play out. And while it is a crazy corner of international copyright, it is not an issue I am concerned with about the diagnostic images. I do not believe such images are copyrighted anywhere. Until someone cites some copyright law that is profoundly differently from generic US basis for what copyright is about, I am will remain confident that mere diagnostic images are universally without copyright protection. Birgitte SB

On Wed, Aug 22, 2012 at 2:37 PM, geni <geniice(a)gmail.com> wrote: The reason is that they are protected by patent. See http://en.wikipedia.org/wiki/Idea%E2%80%93expression_divide

On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <thomas.dalton(a)gmail.com> wrote: It possibly has a very thin copyright. And even that very thin copyright would be unlikely to hold up under a fair use analysis. It's hard to say for sure though, without knowing the details of how the image was made. If you're particularly paranoid about copyright, it would be best to ask the putative author for permission. I doubt it would be essentially the same. It would probably be tighter. Also, there would not be any lighting considerations that aren't taken care of by the machine. I'm not sure if there are F-stops and apertures and stuff to worry about. I'm really not sure what there is which would hold up to an analysis under the merger doctrine. On the other hand, I'm not willing to say that it definitely *wouldn't* be able to attract copyright. If you're particularly paranoid about copyright, it would be best to ask the putative author for permission.

On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <thomas.dalton(a)gmail.com> wrote: http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a better example. There's a good chance that wouldn't be considered copyrightable under US law.

On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen <toddmallen(a)gmail.com> wrote: Heh, I'd argue that the photo in question shows that the photographer obviously does *not* have to make these considerations. Looks like a random arm in a random position against a plain white wall (hardly creative), with auto everything. Yeah, I agree it'd be close. I think it'd come down to the testimony of the photographer. If he claimed "oh, I chose a hairy arm because X, and I opened my thumb because Y", maybe I'd buy it. So if you're feeling particularly copyright-paranoid, it's best to get explicit permission. I could be wrong, but I'm not sure there's a requirement for aesthetic or artistic purpose. Non-fiction, software, legal contracts, etc., all have been held to be copyrightable. That, on the other hand, is a very important point. On the other other hand, it's not true of all X-ray images. It's certainly possible, for instance, to create an X-ray image with the explicit purpose of putting it in an encyclopedia, or a journal, or even a book of artwork. Where it gets into grey area would be if the person created the X-ray image knowing that it would be used in a book, but that it would also be used for diagnostic purposes. Either way, it's a question of fact what instructions were given to the X-ray tech, as well as whether or not the tech followed them. On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton <thomas.dalton(a)gmail.com> wrote: Incorrect. In some works, some aspects are copyrighted, and some aspects are not.

On Aug 22, 2012, at 4:41 PM, Anthony <wikimail(a)inbox.org> wrote: I think you are overestimating the very minimal amount of creativity that is required to here. The aesthetic choice between noting a pause as a period vs. a dash vs. a semi-colon has been upheld as copyrightable. There is aesthetics within non-fiction and legal documents, whether or not they are primary consideration. I disagree here, the intention of the creator has no more to do with copyright than effort expended. It all hangs on whether the work as executed contains some newly created creative expression of the information. Whether it resulted from purposeful or subconscious choices do not matter. +1 Birgitte SB