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Why health records may have no copyright

The Federal Court recently held that there was no copyright in certain health records, such as prescriptions and patient health summaries. The basis was that they lacked sufficient “independent intellectual effort”. Where referral letters showed “some” independent intellectual effort - copyright was found to subsist.

The court found that it was only in a particular sample of consultation notes that it was “possible to discern a continuous narrative” showing independent intellectual effort enough to identify an author of the notes as a literary work.

In most of the consultation notes, record entries were found to be dictated by their nature and function. This affected records regarding such things as a patient's medical condition, medications, and blood pressure readings.

The case is Primary Health Care Limited v Commissioner of Taxation [2010] FCA 419 (4 May 2010) .

Where is all this coming from?

Since 2009, a trend line sees to be emerging in Australian copyright cases which is less in favour of content owners. Among the biggest losers are Nine Network, Telstra, and a cluster of Hollywood studios and others with AFACT.

In a nutshell:

  • The 2009 IceTV Australian High Court decision (IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14) has continuing ramifications for two core requirements for copyright to subsist in claimed subject matter.
  • These requirements are the need for there to exist an "original" work as well as an "author".
  • A key precedent for the Primary Health Care decision was the significant 2010 decision which found against Telstra's copyright claims to the White Pages and the Yellow Pages. The court in the Telstra case felt found by the IceTV decision. It found a lack of originality and and authorship. Telstra's copyright claim was thus struck down in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44.

And so we come back to the Primary Health Care case. There the court looked once more at copyright claims to "literary works". The court struck down a claim alleging copyright subsisted in health records, such as prescriptions and patient health summaries. The court found a lack of originality and authorship. This was supported by the court's observation that the claimed records and notes were found to be dictated by their nature and function.

What was required in all instances was an identifiable author of the literary works

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