Copyright protection for diagnostic tests: an article

1709 Blog team member and rising star Eleonora Rosati is far too modest to tell everyone about this but, together with her brother Carlo Maria, she has written a super article, "Copyright in diagnostic tests: not yet the end for fair use" for the Journal of Intellectual Property Law & Practice (JIPLP). According to the abstract:

"The authors tackle the issue of copyright protection under US law for diagnostic tests such as the Folstein Mini-Mental State Examination (MMSE).

The article claims that no copyright vests in such works, these being outside the scope of copyright-protectable subject-matter. Even where copyright is held potentially to subsist in diagnostic tests such as the MMSE, it would be difficult successfully to argue that the MMSE is sufficiently original for the purpose of copyright protection. Even more difficult would be a situation in which clinicians were held liable for copyright infringement, because they had photocopied or downloaded the MMSE. The fair use doctrine could in fact be successfully invoked by potential defendants.

The article concludes by holding that fair use, not licensing models to be adopted on a sole voluntary basis, is the answer to restrictions unduly imposed by copyright to access of diagnostic tests and suchlike".

This article was published online by the Journal of Intellectual Property Law & Practice, on 30 March 2012, doi: 10.1093/jiplp/jps042. The paper version will be available soon. The article can be accessed for a charge on a limited time basis from the JIPLP website here.