PRIMARY HEALTH CARE V COMMISSIONER OF TAXATION
A recent judgment by the Federal Court clarifies ownership of copyright in health records.
Generally, physical health records and the copyright in those records are owned by the medical practitioner or the practice that created the record. However, the judgement by the Federal Court of Australia in Primary Health Care v Commissioner of Taxation  FCA 419 found that in some cases there is no copyright in health records at all.
Whether there will be copyright in a health record will, from a practical perspective, depend on:
- how much the health professional writes;
- the format of what is written (for example, if the health professional followed a standard template such as a health summary, copyright is less likely to subsist); and
- whether the health record is written by one author or several (for example, if only one person wrote it, copyright is more likely to subsist)
The Federal Court decision
In its decision, the Court considered whether there is copyright in various forms of health records, including health summary sheets, consultation notes, prescriptions, referral letters and medical reports, concluding that copyright subsists in some forms of health records but not others.
Most of the entries in the consultation notes consisted of only
a few words describing 'the names of medical conditions and
medications as well as physiological and pathological data'.
The Court found that if each entry was considered individually,
there was no copyright in the consultation notes as they lacked the
originality and independent intellectual effort required.
Copyright protects the expression of ideas, rather than the idea
itself, and although the Court acknowledged that even the barest of
notes required a high
level of professional expertise and intellectual effort, that effort was directed at the content of the notes rather than the form that it was expressed.
Where the consultation notes contained entries from several different health professionals, each entry was considered individually with the Court finding that the consultation notes were not protected by copyright.
However, where the consultation notes were wholly written by one health professional, the accumulated entries could be considered a single work in which copyright may subsist. This would be the case, for example, where a patient visits one particular health professional on a regular basis rather than attending a medical centre and seeing whichever health professional is available at the time.
Health summaries and prescriptions
Similarly to the consultation notes, the Court found that the expression of information in health summary sheets and prescriptions lacked the independent intellectual effort required, and were also not sufficiently substantial for copyright to subsist.
Medical reports and referral letters
However, the Court found that medical reports and referral letters embodied some independent intellectual effort and were sufficiently substantial to be original literary works in which copyright subsists.
Rights of access , storage and retention of health records
Patients' right of access to their medical records and medical practitioners' obligations to store and retain medical records securely remain unchanged, with the exception that (as a logical consequence of the judgment) medical practitioners cannot control the copying of those health records in which copyright does not subsist.
Importance of copyright status of health records
In this particular case, the issue of copyright was of commercial significance, as copyright in the health records would have entitled the owner of the records to a more favourable tax position.
Intellectual property rights, including copyright in health records, are significant business assets separate to the asset of the physical health record. The copyright status of health records impacts the tax treatment of the records as a business asset and is also likely to affect the commercial value of the health practice.
Implications for the future development of electronic health records
The main issue regarding copyright in this case was that many of the health records before the Court were insufficiently substantial and lacked the independent intellectual effort to constitute a literary work in which copyright subsists. It is likely the same analysis would apply to any health record, irrespective of the medium.
Where an electronic health record such as a referral letter or consultation note is auto-created by a medical practitioner simply filling in the patients details in blank fields it is unlikely that the practitioner will have any copyright in such records.
IT and health professionals involved in the creation of electronic health record templates or software programs should consider the copyright and potential tax implications that the design of the electronic health record template or software program will have.
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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.