[Wikimedia-l] Copyright on Xrays

[James Heilman]

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 at lists.wikimedia.org>wrote:

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>    1. Re: Copyright on Xrays (Birgitte_sb at yahoo.com)
>    2. Re: Copyright on Xrays (Birgitte_sb at 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 at yahoo.com
> To: Wikimedia Mailing List <wikimedia-l at lists.wikimedia.org>
> Subject: Re: [Wikimedia-l] Copyright on Xrays
> Message-ID: <67BECCE0-3A2C-4F4C-88C4-E1D38D0FF46F at yahoo.com>
> Content-Type: text/plain;       charset=us-ascii
>
>
>
>
>
> On Aug 22, 2012, at 9:22 AM, Anthony <wikimail at inbox.org> wrote:
>
> > On Wed, Aug 22, 2012 at 9:14 AM,  <Birgitte_sb at 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 at yahoo.com
> To: Wikimedia Mailing List <wikimedia-l at lists.wikimedia.org>
> Subject: Re: [Wikimedia-l] Copyright on Xrays
> Message-ID: <C73B3CFB-5D65-48A4-95CE-80FB3E51645D at yahoo.com>
> Content-Type: text/plain;       charset=us-ascii
>
>
>
>
>
> On Aug 22, 2012, at 4:41 PM, Anthony <wikimail at inbox.org> wrote:
>
> > On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen <toddmallen at gmail.com>
> wrote:
> >> On Wed, Aug 22, 2012 at 1:54 PM, Anthony <wikimail at inbox.org> wrote:
> >>> On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <
> thomas.dalton at 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 at gmail.com>
> wrote:
> >> On 22 August 2012 20:50, Anthony <wikimail at 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 at inbox.org>
> To: Wikimedia Mailing List <wikimedia-l at lists.wikimedia.org>
> Subject: Re: [Wikimedia-l] Copyright on Xrays
> Message-ID:
>         <
> CAPreJLTVGRbNeDBrsYUQ47hdV-qSqEodR+Y8sKjTDkavFPbBXA at mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> On Thu, Aug 23, 2012 at 8:20 AM,  <Birgitte_sb at 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 at inbox.org>
> To: Wikimedia Mailing List <wikimedia-l at lists.wikimedia.org>
> Subject: Re: [Wikimedia-l] Copyright on Xrays
> Message-ID:
>         <CAPreJLQcQAHptOp6n3mosJnCAYd-BYh4XZ==
> g-zP6Ws4ZTvY7w at mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> On Thu, Aug 23, 2012 at 8:34 AM,  <Birgitte_sb at yahoo.com> wrote:
> > On Aug 22, 2012, at 4:41 PM, Anthony <wikimail at 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 at inbox.org>
> To: Wikimedia Mailing List <wikimedia-l at lists.wikimedia.org>
> Subject: Re: [Wikimedia-l] Copyright on Xrays
> Message-ID:
>         <CAPreJLQ=
> x4UkcwA0e64irG2L+S9vZaYNkdR3n1LoPsH221UsXQ at mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> On Wed, Aug 22, 2012 at 2:49 PM,  <Birgitte_sb at 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 at inbox.org>
> To: Wikimedia Mailing List <wikimedia-l at lists.wikimedia.org>
> Subject: Re: [Wikimedia-l] Copyright on Xrays
> Message-ID:
>         <CAPreJLSiPfVPOsadRvqSHcChR7D60=
> LgU2kAJ1jHEqmPg3XXAQ at mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> On Thu, Aug 23, 2012 at 9:05 AM, Anthony <wikimail at 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 at gmail.com>
> To: wikimedia-l at lists.wikimedia.org
> Subject: Re: [Wikimedia-l] Travel Guide RFC closing in 3,2,...
> Message-ID:
>         <
> CAF1en7XxmDGpmAen-GBKpFARyB42gh8ebHbAazcV0Lb074uAMA at 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
www.opentextbookofmedicine.com