Are health records pro­tect­ed by copyright?

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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.

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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.