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MEDLIB-L  December 2012, Week 3

MEDLIB-L December 2012, Week 3

Subject:

Follow up/Summary re: Question regarding copyright and the EMR

From:

"Madhavan, Ann" <[log in to unmask]>

Reply-To:

Madhavan, Ann

Date:

Tue, 18 Dec 2012 22:05:52 +0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (64 lines)

Thank you for all your comments and inquiries regarding my question last week which I have reposted below...


"I was recently asked a question by our Health Information Specialist  regarding copyright as it applies to the electronic medical record. It is a question that I haven't come across before and I would appreciate guidance: are there are specific guidelines regarding how to manage copyrighted documents that are part of a patient's medical record?  For example, if a copyrighted survey tool/document, questionnaire, or handout is included in the record, and a request is made to copy the record for another facility, must our records department contact the copyrighted document's publisher and get permission to share it/reprint it?

I'm thinking that this instance would be covered under Fair Use, and so the answer is "no" they wouldn't have to contact the publisher, but wondered if there is something that definitively states this fact. I took a quick look at the American Health Information Management Association website, but nothing jumped out at me."

I believe most of you saw Benjamin Harnke's response, which I have pasted below*. Amy Harper at the University of Washington's Health Sciences Libraries also kindly sent the question to UW Medicine's Compliance team and they also stated that...

"...this material is protected under the "Fair Use" act, which is defined as follows:
Fair use
Additionally, the fair use defense to copyright infringement<http://en.wikipedia.org/wiki/Copyright_infringement> was codified for the first time in section 107 of the 1976 Act. Under section 107, the fair use of a copyrighted work is not copyright infringement, even if such use technically violates section 106. While fair use explicitly applies to use of copyrighted work for criticism, news reporting, teaching<http://en.wikipedia.org/wiki/Teaching>, scholarship<http://en.wikipedia.org/wiki/Scholarly_method>, or research purposes, the defense is not limited to these areas. The Act gives four factors to be considered to determine whether a particular use is a fair use:

  1.  the purpose and character of the use (commercial or educational, transformative or reproductive);
  2.  the nature of the copyrighted work (fictional or factual, the degree of creativity);
  3.  the amount and substantiality<http://en.wikipedia.org/wiki/Fair_use#Amount_and_substantiality> of the portion of the original work used; and
  4.  the effect of the use upon the market<http://en.wikipedia.org/wiki/Market> (or potential market) for the original work.[4]<http://en.wikipedia.org/wiki/Copyright_Act_of_1976#cite_note-4>
http://www.copyright.gov/fls/fl102.html "

So the consensus appears to be that Fair Use covers copyrighted documents that are part of a patient's medical record.

Best regards and Happy Holidays,
Ann

Ann Madhavan, MLS | Public Health - Seattle & King County
401 Fifth Avenue, #1300 Seattle, WA  98104 | 206-263-8758 ph | 206-296-0629 fax
[log in to unmask]<mailto:[log in to unmask]> | www.kingcounty.gov/healthservices/health/library<http://www.kingcounty.gov/healthservices/health/library>
M,T,W  -  PHSKC Digital Library   Th  -  LHWMP Library



*Copy of Benjamin's response:


"Hi,



It would seem to me that this is not a copyright violation. The purpose of copying the questionnaire is not to reuse that questionnaire for another patient (which would be a proprietary issue), it is for other medical personnel to potentially use the results of the questionnaire to deliver medical care. Copying  a survey for that reason is not impinging on the market for that survey (the owner's ability to make money off of it), whereas copying to give it anew would be. Would this be the same analogy: A psychiatrist gives a test (that they have properly licensed to use) to someone and wants to consult with another psychiatrist across the country about the results. It seems perfectly reasonable the first could copy the test w/ results and send it off without getting copyright permission. Now if the other psychiatrist, stripped out the questions and started using the tool without licensing it, well that would be an obvious copyright violation.



Also, could you imagine the burden that would be placed on health care providers if they had to seek permission for every copyrighted piece of material that might be transmitted through an EMR? The whole point of the transition to EMRs is to increase efficiency and lower costs. Obama would be very upset if this were not the case.



Unfortunately, I doubt you'll find a definitive statement on the issue. Like most cases of fair use one needs to look at the fair use guidelines and come up with an argument as to whether a particular use is fair or not.



Regards,

Ben Harnke





Education and Reference Librarian

Health Sciences Library, University of Colorado Anschutz Medical Campus

12950 E. Montview Blvd., MS A003  Aurora, CO  80045 303-724-2146, [log in to unmask]<mailto:[log in to unmask]> , http://hslibrary.ucdenver.edu/"

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December 1999, Week 5
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December 1998, Week 5
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January 1998, Week 5
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January 1998, Week 3
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December 1997, Week 5
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December 1995, Week 5
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