Wikipedia:Wikipedia Signpost/2013-10-02/Op-ed


 * James Heilman edits as Jmh649 or "Doc James" on Wikipedia. In real life, he lives in Canada and works as an academic professor and emergency room doctor.
 * The views expressed in this op-ed are those of the author only; responses and critical commentary are invited in the comments section. The Signpost welcomes proposals for op-eds at our opinion desk.



Medical images have transformed many aspects of modern medicine. Over the past two decades the increasing sophistication of MRI, CT-scanning, and X-ray techniques has made these technologies the cornerstone of diagnosing a range of conditions, replacing what used to be largely guesswork by doctors. They can be the difference between life and death for a patient, and their importance is underlined by the tens of billions of dollars spent on them annually just in North America. For Wikimedia Foundation projects, advanced images are now a powerful tool for describing and explaining, and educating our worldwide readership of medical articles.

But somehow these images have fallen through the copyright crack because each image potentially involves a raft of stakeholders—both individuals and institutions ...

This legal fuzz was brought home with a thud on September 16 on Commons, when User:Eleassar nominated for deletion a featured image of the human brain, generated by a CT scanner. The image had been uploaded by a long-standing Wikipedian who is the subject of the image. Eleassar’s argument is that copyright for the scan belongs with the X-ray technician. If this position is upheld by Commons it may result in the deletion of the great majority of radiological imaging, which has been contributed by the patients or the physicians involved in their creation. To make matters worse, open-access publishers do not require release by the X-ray technologists, so we would likely lose those images as well.

This nomination for deletion has brought up a fundamental question: are diagnostic images copyrightable, and if so, who owns the copyright? Is it the patient, the technician, the radiologist (a medical specialist), the doctor who ordered the creation of the image, the hospital, the first person who publishes the image, or are such images by default in the public domain.

The law says very little on the question and a bunch of us have been playing amateur lawyer now since this case arose. A WMF legal intern provided an [//meta.wikimedia.org/wiki/Wikilegal/Copyright_of_X-Ray_Images opinion] which was more or less "the law has no idea": "The copyright office takes the position that X-rays are not copyrightable". Complicating matters further, some degree of creativity is required not just in the United States but in nearly all countries, yet "Anyone who has prepared a photographic picture has an exclusive right to make copies of that picture".

Wikimedians have put a number of arguments, including:

1) Diagnostic X-rays are the same as photos, and thus the person who presses the button owns the image. 2) Copyright requires "intellectual creativity". Radiological images are created on the basis of strict guidelines. No creativity is allowed. And thus they are not copyrightable. 3) Similar arguments used to support the deletion of X-rays can be made for ECGs—both types are created on the basis of electromagnetic waves at the press of a single button. Will we need to delete the thousands of ECGs on Commons? 4) What about the sculpture your plumber has created under your sink or your electrician within your walls? Are you allowed to take and upload a picture of that without his or her consent? Or do you need copyright release?

So what does the publishing world do? I have asked multiple publishers and academics from many countries. They all agree that copyright is not owned by the tech. Publishers state that they just assume that the author has "taken care of it". Authors state that they simply publish and do not feel they needed permission from either tech or hospital as long as the images were anonymized.

Is it country-dependent? Some are arguing that the laws pertaining to this in Sweden and Germany are different from those in the US and the UK; so while images might be allowed from some countries, they might not from others. The experts I asked from Sweden, however, viewed the laws the same as those from the US and UK. More opinions are being sought.

A number of radiological images have been deleted on the basis of the precautionary principle over the years.
 * File:Foot_xray.jpg
 * Image:Sacrococcygeal-teratoma-001.jpg

With tens of thousands of images at stake, representing thousands of volunteer hours of time, the discussion has become heated, with a few insults beginning to fly. To solve the dilemma, I have started a request for comment on Commons to bring more voices to the table. Having asked at least a dozen lawyers and getting an even greater number of opinions, the question is: how do we resolve the unknown?