1709 Blog: for all the copyright community

Wednesday, 4 January 2012

Cognitive screening, copyleft and consistency as between IP rights

"Copyright and Open Access at the Bedside" is a fascinating piece by John C. Newman and Robin Feldman, which you can find on the website of the New England Journal of Medicine here. The issue is succinctly stated in its opening paragraphs, below (omitting footnotes):
"For three decades after its publication, in 1975, the Mini–Mental State Examination (MMSE) was widely distributed in textbooks, pocket guides, and Web sites and memorized by countless residents and medical students. The simplicity and ubiquity of this 30-item screening test — covering such functions as arithmetic, memory, language comprehension, visuospatial skills, and orientation — made it the de facto standard for cognitive screening. Yet all that time, it was under copyright protection. In 2000, its authors, Marshal Folstein, Susan Folstein, and Paul McHugh, began taking steps to enforce their rights, first transferring the copyright to MiniMental, a corporation the Folsteins founded, and then in 2001 granting a worldwide exclusive license to Psychological Assessment Resources (PAR) to publish, distribute, and manage all intellectual property rights. A licensed version of the MMSE can now be purchased from PAR for $1.23 per test. The MMSE form is gradually disappearing from textbooks, Web sites, and clinical tool kits. 
Clinicians' response to this “lockdown” has been muted. A few commentators have expressed concern about continuing to use a now-proprietary tool in training or about implications for the developing world, echoing debates about patented pharmaceuticals. In our experience, many clinicians are either unaware of the MMSE's copyright restrictions or simply ignore them, despite the risk of copyright infringement".
Andrew Robinson, who has kindly provided this link, explains that a free alternative has since been shut down because of an allegedly dubious copyright claim and notes how interesting it is that this article puts copyleft into a new context, that of medical copyright -- and that such a well respected journal would side with the open source movement without much resistance or debate. As the authors conclude (again with footnotes omitted):
"We suggest that authors of widely used clinical tools provide explicit permissive licensing, ideally with a form of copyleft. Any new tool developed with public funds should be required to use a copyleft or similar license to guarantee the freedom to distribute and improve it, similar to the requirement for open-access publication of research funded by the National Institutes of Health. The solution can be as simple as placing a copy of the tool on the authors' Web site, with a statement naming or linking to the license. Clinicians and researchers would be free to use, copy, and improve the tool; improvements would have to offer a similar copyleft license, perpetuating the benefits. Yet authors would maintain ownership and copyright of their tool and could profit by licensing it for a fee to commercial users or publishers who wished to include it in a non-copyleft work.
The restrictions on the MMSE's use present clinicians with difficult choices: increase practice costs and complexity, risk copyright infringement, or sacrifice 30 years of practical experience and validation to adopt new cognitive assessment tools. By embracing the principles of copyleft licensing, we can avoid such setbacks and build a more open future of continually improving patient care".
This blogger has a particular interest in the IP dimensions to screening tests of this nature, having had to advise an author-clinician in the past on the relative rights and entitlements as between the author, his employing medical authority and a funding body, back in the days when the word "copyleft" was never heard on his side of the Atlantic. It seems to him that the use of medical, therapeutic and diagnostic creations should be treated consistently as  between patents and copyright, since the same public interest in access to them is manifest without regard to the nature of the IP right concerned, and that more attention should be given to a whole range of options: not just copyleft but compulsory licences and licences of right where appropriate. It also seems sensible to distinguish between the results of research and development which are publicly-funded research and results which are not.


Karl-Friedrich Lenz said...

I think that, yes, there should be an exception to copyright for public health reasons.

One case I would think it necessary is information about radiation risks. The International Committee on Radiation Protection publishes much of its information behind a paywall. That fact may have increased damage from the Fukushima nuclear accident. There is a very strong public policy argument for Open Access on this information, in my humble opinion.

James Plotkin said...

I agree. Such an exception exists in Canadian patent la where one cannot patent a medical procedure.

In the US, while a medical procedure can be patented, those rights are unenforceable against a health care professional or hospital when those entities are making use of the process to help people.