17 September 2010 Are health records protected by copyright?


In brief - Health records and copyright

On 4 May 2010 the Federal Court of Australia held that copyright did not subsist in a number of health records created and maintained by a health care provider. Therefore, they were not an asset of the business.

The health records were health summary sheets, consultation notes, referral letters and other letters written in respect of patients.

Importance of copyright status of health records

The question was important because, if copyright subsisted, the owner of the health records would have been able to claim a more favourable tax position. The decision also has ramifications for apportionment of the price on the sale of any medical or allied health practice.

Health records and independent intellectual effort

The court found that the summary sheets and consultation notes lacked sufficient “independent intellectual effort” and that they were not substantial enough to qualify for protection. However, where referral letters showed “some” independent intellectual effort, copyright protected those letters. This meant that what would otherwise have been a significant asset (the copyright in the bulk of the records) did not exist.

The notes were “largely restricted to notations of the names of medical conditions and medications as well as physiological and pathological data”. The documents consisted, in the most part, of “no more than a word or a few words”. The records lacked originality and no independent intellectual effort was exercised in their creation.

There were also difficulties in identifying the relevant author of the notes (which is critical for copyright to exist). For the notes, as a whole, to be considered a work, it must be “possible to discern a continuous narrative” in them. The court could not find this narrative.

Implications for health records as assets of a business

Whilst this case focussed on copyright in health records and their proper tax treatment, it has a number of wider lessons for health records as assets of a medical business and for patients.

It is clear that the physical record is property and that it is the property of the medical practitioner or practice. However, this decision makes it clear that, generally speaking, there may be no copyright protection in those records. There is no separate asset, separate from the physical record. This has consequences for the tax treatment of those business assets and for the value that may be attributed to any sale of the practice that includes those records.

Patients’ right to access their medical records

A patient clearly has a right to the information in their health records and it is now clear that, in most cases, the medical practitioner cannot control the copying of those records. The decision is consistent with the right of a patient to health information and records and the control of that information.

Implications for the future development of electronic health records

At this point it is difficult to predict the impact that the Federal Court’s decision will have on the continued development of electronic health records. It is possible that those records will be treated differently, on the basis that greater intellectual effort is expended in their creation. The other possibility is that, irrespective of the medium, health records could still be judged to lack originality or continuous narrative and have the same difficulty in identifying the relevant author. Whether this decision will slow the investment in, and development of, electronic health records remains to be seen.

For further information, please contact Swaab Attorneys.

Co-authored by M Hall.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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