Copyright in medical records

On 4 May 2010, Justice Stone of the Federal Court delivered judgment in Primary Health Care Ltd v Commissioner of Taxation [2010] FCA 419 [available here] .  The case concerned whether or not income tax deductions could be validly claimed by Primary Health Care (PHC), following its purchase of certain medical practices. 

The pivotal issue concerned whether copyright subsisted in a range of patient records acquired by PHC.   The answer to this question then resolved the claims to tax deductibility [ed: if you are keen to understand the ‘ins’ and ‘outs’ of Part IVC of the Taxation Administration Act 1953 (Cth), we suggest you now go directly to the case …].

Importantly, Stone J determined that copyright did not subsist in the medical records.

PHC submitted that the medical records were composed of a range of  different documents, including health summary sheets, consultation notes and letters such as referral letters.  The summary sheets and consultation notes were then said to comprise one or, alternatively, two literary works.   It was not contended that the medical records, or parts of them, were compilations.

In circumstances where ‘compilations’ were not on the table for consideration, Justice Stone was required to determine whether each individual entry in the consultation notes and summary sheets could be a work in which copyright could be claimed.  She found that, in the main, the entries were too insubstantial to qualify for copyright protection.  They generally included only a few words describing particular medical conditions and treatments.  Further, Stone J found that the relevant skill, labour and effort that went into the creation of these entries was directed towards the patient’s diagnosis and treatment rather than the expression of those ideas on paper. 

By contrast, Stone J found that copyright could subsist in the referral letters and some of the consultation notes, because there was sufficient independent intellectual effort involved in their creation to confer originality.

In relation to authorship, Stone J determined that it was necessary for PHC to identify all of the authors of the relevant works for copyright to subsist.  This presented PHC with another difficulty.  Many of the notations in the medical records were made by doctors who had, at best, initialled their respective contributions but not properly signed their names, with the result that they could not be identified.  In so finding, Stone J relied on Justice Gordon’s judgment in Telstra v PDC (see blog post here), which introduced the need to identify all the authors in the case of published works such as telephone directories.  The Telstra v PDC case is on appeal, and is fixed for hearing on 16 August 2010 (Mallesons is acting for the appellants).  Stone J did not critically analyse Justice Gordon’s conclusion that one must identify all the authors, nor did she test whether such an approach should also apply to unpublished works, such as the medical records in question.  Published and unpublished works are subject to different sections of the Copyright Act 1968 (Cth).

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