The Medical Field's Copyright Clash

Lately, the medical community has been buzzing about copyright law’s intrusion into the field. It is rare to see the merging of these two fields, but disputes have been mounting over the use of a diagnostic tool used to test mental ability (often to screen for dementia) - the Mini-Mental State Evaluation (MMSE).


The MMSE has been in existence since 1975, and, until about 2000, was freely available for use. The MMSE became a standard diagnostic tool for doctors and medical schools; it was freely referenced in manuals and textbooks. The test measures cognitive ability based on certain categories: orientation to time, orientation to place, registration, attention and calculation, recall, language, repetition, and complex commands. The original authors of the test maintained their copyright rights from 1975 until 2000, when they transferred their rights to MiniMental. In turn, MiniMental granted Psychological Assessment Resources (PAR) an exclusive license to publish the test. The transfer of copyright explains the dramatic shift from a dearth of copyright enforcement from 1975 to 2000 to aggressive enforcement from 2000 forward. The test started disappearing from textbooks, and users of the test were required to have a license from PAR.

The most recent dispute involves the Sweet 16 test, a 16-question test also used to gauge cognitive ability. In response to the tighter policing of the MMSE test, Dr. Tamara Fong, a Harvard University researcher, developed the Sweet 16 test in 2010. The Sweet 16 test, used to test Cognitive ability, like the MMSE test, was sometimes preferred by doctors because it was shorter to administer and did not require pen and paper. The Sweet 16 test was freely available on the Internet until recently, when PAR demanded the test be taken down. Although Dr. Fong independently created the test, several elements are apparently substantially similar to the MMSE, enough for PAR to make a copyright infringement threat.

The uproar over the enforcement of copyright rights for these two tests raises many questions, legal and ethical. Should a test that has been freely distributed for nearly 30 years and that has been a staple of the medical field suddenly be unavailable except to those willing to pay a licensing fee? Should public interest dictate that the test be transferred to the public domain, particularly because it has been so prevalent for decades? Is it consistent with public policy for the law to continue to protect the holders of these property rights? What kind of test for cognitive ability can doctors, schools, and textbooks safely use without fear of infringing on PAR’s copyright rights?

It is perfectly legitimate to wonder how a medical test could be copyrighted in the first place. Copyright law dictates that one cannot copy an idea, but an expression of an idea fixed in a tangible form is protectable. The MMSE tests skills such as language, calculation, and orientation to time. The testing of these themes constitutes an idea, but the specific questions posed to establish, for instance, language skills, might be eligible for copyright protection under certain circumstances. There are several ways to test language skills, so protecting one question wouldn’t necessarily prevent someone from testing language in a different way. However, how many ways are there to test orientation to time? One could ask the day of the week, the current month, the year, but not very much else. In a case like this, one could argue that because there are a limited number of ways to test time orientation, that question should not be eligible for copyright protection. Just as many written forms (that ask your name, address, contact information, educational background, etc.) are ineligible for copyright protection, shouldn’t several basic orientation questions be ineligible for copyright protection? Many in the medical field think so.

What are the public policy concerns? The MMSE is a work that has been freely available for nearly 30 years. The MMSE is heavily ingrained in the medical profession, and it has helped in the proper treatment of countless patients. Can such a work really be snatched out of the medical profession’s hands after such a long time? Copyright law was designed to balance the rights of the author to profit from his/her work against the rights of the public to benefit from the work. There are set durations established for copyright law, but a court, should it come across this situation, will weigh these two sets of rights and the circumstances. Many feel the test should pass to the public domain because of its longtime presence in the field. PAR will certainly disagree. Here at Higa & Gipson, LLP this is just one of the trends in intellectual property law that we follow to provide exceptional representation in this dynamic field of law.

If you have any questions about copyright protection, then please contact Ronnie Gipson at Gipson@higagipsonllp.com, or Veronique Kherian at vkherian@higagipsonllp.com. We can be reached by telephone at (415) 692-6520.

The FAA’s Longtime Expunction Policy is Suspended

Since 1991, it has been the policy of the FAA to expunge, with some exceptions, an airmen’s record of an infraction after 5 years when the FAA has taken action in a civil penalty case or certificate action case.  In August 2010, an amendment to the Pilot Records Improvement Act (PRIA), codified in 49 USCS 44703, quietly eliminated the FAA’s ability to continue this policy.  The change to the law requires the FAA to create an electronic database that includes, “…summaries of legal enforcement actions resulting in a finding by the Administrator of a violation of this title or a regulation prescribed or order issued under this title that was not subsequently overturned.” Language appearing later in the text of the statute requires that the FAA maintain the entries in the electronic database until the FAA receives a notification that the Airmen is deceased. These two requirements taken together conflict with the FAA’s policy of expunging records of legal enforcement actions against individuals that resulted in a finding of a violation.

The aviation community was notified in a letter dated February 4, 2011, by the FAA’s Chief Counsel that the FAA suspended the expunction policy. The last expunction conducted by the FAA related to Airmen certificates occurred on November 1, 2010.  It is important to note that administrative actions and cases with no enforcement action will continue to be expunged, as PRIA does not require the FAA to place these types of entries into the pilot record database. The full impact of the changes to the PRIA have not been determined.  Once the FAA completes its analysis of the impact, the agency plans to amend the expunction policy accordingly and alert the aviation community through the Federal Register system.  In the interim, if you have questions about the changes to the expunction policy and how it may impact your certificate, then contact Ronnie Gipson at (415) 655-6820 or by email at Gipson@higagipsonllp.com.