X rays are never created with the primary purpose of publication in mind.
That would be unethical (especially as X rays can cause harm). They are
created with the primary intent of helping patients. Interesting ones are
than collected after the fact and published by people involved in the
persons care. After all identifying information is removed concerns of
patient confidentiality are no longer an issue (we have both publications
on ethics and the advice of legal counsel here in Canada to support this
concern thus do not need to discuss it further).
James Heilman
On Thu, Aug 23, 2012 at 7:39 AM, <wikimedia-l-request(a)lists.wikimedia.org>wrote;wrote:
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Today's Topics:
1. Re: Copyright on Xrays (Birgitte_sb(a)yahoo.com)
2. Re: Copyright on Xrays (Birgitte_sb(a)yahoo.com)
3. Re: Copyright on Xrays (Anthony)
4. Re: Copyright on Xrays (Anthony)
5. Re: Copyright on Xrays (Anthony)
6. Re: Copyright on Xrays (Anthony)
7. Re: Travel Guide RFC closing in 3,2,... (James Heilman)
----------------------------------------------------------------------
Message: 1
Date: Thu, 23 Aug 2012 07:20:59 -0500
From: Birgitte_sb(a)yahoo.com
To: Wikimedia Mailing List <wikimedia-l(a)lists.wikimedia.org>
Subject: Re: [Wikimedia-l] Copyright on Xrays
Message-ID: <67BECCE0-3A2C-4F4C-88C4-E1D38D0FF46F(a)yahoo.com>
Content-Type: text/plain; charset=us-ascii
On Aug 22, 2012, at 9:22 AM, Anthony <wikimail(a)inbox.org> wrote:
On Wed, Aug 22, 2012 at 9:14 AM,
<Birgitte_sb(a)yahoo.com> wrote:
> I really doubt non-artistic works are copyrighted as a general rule
anywhere
I'm not sure what you mean by "non-artistic", but if you mean "purely
utilitarian", as that term is interpreted by the court, then this is a
good point.
I was going to suggest UK, but a quick search suggests that you
*can't* copyright purely "utilitarian" works in the UK.
(I wouldn't use the term "non-artistic" though. There are plenty of
works that are copyrighted in the US and all over that I wouldn't
consider "art", and while an argument could be made that such works
shouldn't be copyrightable, court precedent is clearly adverse to that
argument.),
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.
> 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.
How do you distinguish whether or not it is a "diagnostic image", and
what makes it clear-cut?
Even using the term "utilitarian" rather than "artistic" I can still
come up with a large number of examples of things which seem pretty
"clear-cut" as "utilitarian" to me, but yet which receive copyright
protection. gzip, for instance.
I actually expanded on this at the end of my last email. If that doesn't
clarify, ask again and explain what gzip is.
> 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.
Do you have a citation for this? Also, is it where the image is
created, or where it is first published, or something else?
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
------------------------------
Message: 2
Date: Thu, 23 Aug 2012 07:34:14 -0500
From: Birgitte_sb(a)yahoo.com
To: Wikimedia Mailing List <wikimedia-l(a)lists.wikimedia.org>
Subject: Re: [Wikimedia-l] Copyright on Xrays
Message-ID: <C73B3CFB-5D65-48A4-95CE-80FB3E51645D(a)yahoo.com>
Content-Type: text/plain; charset=us-ascii
On Aug 22, 2012, at 4:41 PM, Anthony <wikimail(a)inbox.org> wrote:
On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen
<toddmallen(a)gmail.com>
wrote:
> On Wed, Aug 22, 2012 at 1:54 PM, Anthony
<wikimail(a)inbox.org> wrote:
>> On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <
thomas.dalton(a)gmail.com> wrote:
>>>
http://commons.wikimedia.org/wiki/File:Upperarm.jpg
>>
>>
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.
Even if it is, I think an X-ray would be quite different. In taking a
photo of a subject's arm, the photographer must consider lighting,
angle to which the arm is turned, the proper camera settings, how to
find the exact arm that suits the purposes of the intended photo, etc.
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.
I think there would be just enough creativity in
that arm shot, but
it'd be close.
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.
An X-ray, on the other hand, is made by a
technician according to
documented procedures. The arm is turned to the proper angle to see
what the doctor wants to see, not to an angle that's aesthetically or
artistically pleasing.
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.
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.
The image is taken according to standard and
inflexible procedures.
The technician is not exercising a bit of
creativity in taking the image. In fact, the tech would likely get in
trouble if (s)he DID decide to "get creative" with it.
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.
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.
On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton
<thomas.dalton(a)gmail.com>
wrote:
> On 22 August 2012 20:50, Anthony
<wikimail(a)inbox.org> wrote:
>> It possibly has a very thin copyright.
>
> Copyright doesn't have thickness. Either it is copyrightable or it
isn't.
Incorrect. In some works, some aspects are copyrighted, and some
aspects are not.
+1
Birgitte SB
------------------------------
Message: 3
Date: Thu, 23 Aug 2012 08:35:31 -0400
From: Anthony <wikimail(a)inbox.org>
To: Wikimedia Mailing List <wikimedia-l(a)lists.wikimedia.org>
Subject: Re: [Wikimedia-l] Copyright on Xrays
Message-ID:
<
CAPreJLTVGRbNeDBrsYUQ47hdV-qSqEodR+Y8sKjTDkavFPbBXA(a)mail.gmail.com>
Content-Type: text/plain; charset=ISO-8859-1
On Thu, Aug 23, 2012 at 8:20 AM, <Birgitte_sb(a)yahoo.com> wrote:
I believe artistic/non-artistic is accurate for
images. Technically it
is artistic, literary, dramatic,
or musical works.
Well, I think that's an abuse of the term "artistic". The job of a
photojournalist, for instance, is to capture what is true, not what is
aesthetically pleasing.
I understand that it's an abuse of the term "artistic" which is, to
some extent codified into law. But I still don't think it's the right
term.
Even
using the term "utilitarian" rather than "artistic" I can still
come up with a large number of examples of things which seem pretty
"clear-cut" as "utilitarian" to me, but yet which receive copyright
protection. gzip, for instance.
I actually expanded on this at the end of my last email. If that doesn't
clarify, ask again and
explain what gzip is.
gzip is command line compression software. As you've limited your
comment to images, it doesn't apply.
>> 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.
Do you have a citation for this? Also, is it where the image is
created, or where it is first published, or something else?
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.
Are you sure, or are you guessing?
What about all that "country of origin" stuff in the Berne Convention?
That certainly suggests to me that the location of first publication
matters.
------------------------------
Message: 4
Date: Thu, 23 Aug 2012 08:51:56 -0400
From: Anthony <wikimail(a)inbox.org>
To: Wikimedia Mailing List <wikimedia-l(a)lists.wikimedia.org>
Subject: Re: [Wikimedia-l] Copyright on Xrays
Message-ID:
<CAPreJLQcQAHptOp6n3mosJnCAYd-BYh4XZ==
g-zP6Ws4ZTvY7w(a)mail.gmail.com>
Content-Type: text/plain; charset=ISO-8859-1
On Thu, Aug 23, 2012 at 8:34 AM, <Birgitte_sb(a)yahoo.com> wrote:
On Aug 22, 2012, at 4:41 PM, Anthony
<wikimail(a)inbox.org> wrote:
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.
I think you are overestimating the very minimal amount of creativity
that is
required to here.
Not at all. I'm just saying that creativity isn't necessarily art. A
legal contract may be quite creative. But it isn't art.
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.
I disagree here, the intention of the creator has no more to do with
copyright
than effort
expended.
Hmm...you may be right on that. If I accidentally spill some paint on
a canvas and it creates an image that looks like the Virgin Mary, do I
have a copyright on the image?
I'm not sure what the case law is on that one.
------------------------------
Message: 5
Date: Thu, 23 Aug 2012 09:05:02 -0400
From: Anthony <wikimail(a)inbox.org>
To: Wikimedia Mailing List <wikimedia-l(a)lists.wikimedia.org>
Subject: Re: [Wikimedia-l] Copyright on Xrays
Message-ID:
<CAPreJLQ=
x4UkcwA0e64irG2L+S9vZaYNkdR3n1LoPsH221UsXQ(a)mail.gmail.com>
Content-Type: text/plain; charset=ISO-8859-1
On Wed, Aug 22, 2012 at 2:49 PM, <Birgitte_sb(a)yahoo.com> wrote:
To reword what I said before the vast majority of
X-ray images in
existence are diagnostic
images. There is no reason at all to purposefully
search out X-rays that
might land in some
grey area.
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.
Another rule of thumb: Most images, whatever they
depict, are also
*designed* to be pleasing
to human aesthetics.
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.
------------------------------
Message: 6
Date: Thu, 23 Aug 2012 09:10:26 -0400
From: Anthony <wikimail(a)inbox.org>
To: Wikimedia Mailing List <wikimedia-l(a)lists.wikimedia.org>
Subject: Re: [Wikimedia-l] Copyright on Xrays
Message-ID:
<CAPreJLSiPfVPOsadRvqSHcChR7D60=
LgU2kAJ1jHEqmPg3XXAQ(a)mail.gmail.com>
Content-Type: text/plain; charset=ISO-8859-1
On Thu, Aug 23, 2012 at 9:05 AM, Anthony <wikimail(a)inbox.org> wrote:
And many others were designed, like the X-ray
image, to objectively
depict reality.
In fact, in theory, almost all the images in an encyclopedia should be
of this type (I say "almost" because there will also be images which
are there for the purposes of talking about the image itself).
Unfortunately this is only the theory, and not the practice, and we
get pictures winning picture of the year which are altered from
reality in order to be more aesthetically pleasing.
------------------------------
Message: 7
Date: Thu, 23 Aug 2012 07:56:10 -0600
From: James Heilman <jmh649(a)gmail.com>
To: wikimedia-l(a)lists.wikimedia.org
Subject: Re: [Wikimedia-l] Travel Guide RFC closing in 3,2,...
Message-ID:
<
CAF1en7XxmDGpmAen-GBKpFARyB42gh8ebHbAazcV0Lb074uAMA(a)mail.gmail.com>
Content-Type: text/plain; charset=ISO-8859-1
Most of the issues where addressed. And they only way to determine if many
of the concerns hold water is to simply try it. A travel guide will likely
be heavily read and edited.
As a comparison their are an approximately an equal number of medical
articles on Wikipedia to travel articles. Yet the travel articles had a
much higher number of dedicated editors. I hope that you Thomas do not see
this as justification to delete the medical project? Also if you look at
readership on Wikipedia. We have many thousands of article that receive
little to no viewership I do not consider this viewership justification for
deleting them.
--
James Heilman
MD, CCFP-EM, Wikipedian
The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com
------------------------------
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--
James Heilman
MD, CCFP-EM, Wikipedian
The Wikipedia Open Textbook of Medicine