Doctors Discover Copyright Law: Cognitive Screening Test Killed Over Infringement Claims

from the horrifying dept

We've certainly talked about how ridiculous patents have gotten in the way of health care professionals and doctors providing the best care they can. Beyond basic things like gene patents, the idea that diagnostic tests are patentable is somewhat horrifying for anyone with any sense of decency when it comes to trying to keep people healthy. But, apparently the issue doesn't stop there, and the medical community is suddenly grappling with some doctors using aggressive copyright enforcement to block competing diagnostic tests from being available.

The story comes from Dr. John C. Newman and lawyer Robin Feldman in the respected New England Journal of Medicine, where they recount the story of the Mini–Mental State Examination (MMSE). A simple 30-item screening test that was first published in 1975 basically became a defacto standard that was used (and published!) widely. As the authors note, it was available in textbooks, pocket guides and websites -- and "memorized by countless residents and medical students." All in all, it sounds like a useful tool that was being put to good use. But then, decades after it was created, the authors of the diagnostic test discovered copyright. And that's when the trouble began:
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.

But then in March 2011, a promising new cognitive screening tool that was to be available through "open access," the Sweet 16 -- a 16-item assessment of thinking, learning, and memory developed by Harvard's Tamara Fong -- was removed from the Internet at the request of PAR in an apparent copyright dispute. The Sweet 16 includes orientation and three-object recall items, similar to the MMSE's, along with a digit-span item. This action, unprecedented for a bedside clinical assessment tool, has sent a chill through the academic community; clearly, clinicians and researchers can no longer live in blissful ignorance of copyright.
It's difficult to see how this isn't copyright abuse in the extreme. The copyright on the MMSE is not on the "idea" of a "3 object recall" test, but the specific expression. If you look online there are a few different versions of the MMSE that you can find pretty easily and the content at issue seems really basic. For example, the "three-object recall test" appears to consist of this:
Name 3 objects: 1 second to say each. Then ask the patient all 3 after you have said them. Give 1 point for each correct answer. Then repeat them until he/she learns all 3. Count trials and record.
Then, a couple questions later, it says you should ask the patient to repeat the same 3 objects. This is pretty straightforward -- a direction. Suggesting a similar test, by itself, should not infringe at all in that it's not making use of any "creative expression" from the original (if there even is any creative expression in the original). And that's outside the question of whether or not there would be a fair use defense even if the sentence was used exactly and in its entirety.

But, even just getting beyond the copyright issue here, the very fact that Marshal Folstein, Susan Folstein, and Paul McHugh, along with their partner, Psychological Assessment Resources (PAR), are using copyright to stifle important and useful processes for diagnosing cognitive states should simply be repugnant to all.

The NEJM article goes on to talk about various copyright issues, and explain why it's important for doctors to understand concepts like open access, the public domain, Creative Commons and open source licenses.
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.
We've certainly talked about the importance for folks in other professions to recognize the importance of open access. It's honestly tragic (and just a bit horrifying) that this should even be an issue in the medical space at all. Either way, it's yet another sad reminder of the state of "ownership culture" driven by copyright maximalists, pushing people into believing that ideas can and should be owned and limited.

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  1. identicon
    trish, 30 Dec 2011 @ 11:50am

    Rule of acquisition #10

    Never kill a customer unless the profit you make off his death is larger than the profit you can make off his life.

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