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
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 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 focused 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
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
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
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.
Swaab Attorneys was the highest ranking law firm and the
13th best place to work in Australia in the 2010 Business Review
Weekly Best Places to Work Awards. The firm was a finalist in the
2010 BRW Client Choice Awards for client service and was named the
winner in the 2009 Australasian Legal Business Employer of Choice
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