Commons:Requests for comment/Xrays

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This is a RfC regarding creating a policy on Commons for the handling of diagnostic medical images. Commons has many thousands of radiological images such as: X-rays, CT scans, MRI images, ultrasound images, and nuclear medicine images. Efforts to delete some of them due to copyright claims occur from time to time including deleted and a featured image deletion under discussion Some are pushing for an interpretation of the law that would result in the deletion of all diagnostic images on Commons.

Questions[edit]

  1. Are diagnostic medical images copyrightable? No one really knows. Many view there to be no creative act going into their creation and thus they may not be eligible for copyright.[1][2] X-rays can be compared to photographs however to which copyright applies. And the copyright may vary by country. There is no case law. So what do we do when there is no laws to guide us?
  2. If X-rays are copyrightable who do we say owns the copyright? There are lots of options.
    1. It could be the ordering physician. Per this 2006 textbook "the patient information itself, however, is generally thought to belong to both the provider and the patient"[1]
    2. The radiologist (same as before)[1]
    3. The patient[1] (there are laws in some places saying the patients owns their own data)
    4. The X-ray tech (they are the one who pushes the button)
    5. The hospital (they pay the techs)
    6. The software programmer (there is lots of automatic processing of images)
    7. The government (they own the hospitals in many places)
    8. A country's reigning monarch, who may claim personal non-governmental right to certain public works[2]
  3. What is the precedent? Medical journals have published medical images for a century and before Wikipedia, it seems like this question has not been deeply examined. What practices are already in place in medical publishing?

Authorship/Copyright of x-ray images — what is known so far[edit]

Germany[edit]

  • In Germany x-ray images as well as MRT, ultrasound, PET and scintigraphy images are protected by (copyright-like) Related rights or neighbouring rights per §72 UrhG [3] like “simple images” (Lichtbild). This protection does not require creativity (as would be necessary for regular copyright protection) and lasts only for 50 years after image creation, if not published within 50 years, or for 50 years after the first legitimate publication.

This position is supported by scholarly legal literature (Schulze, in: Dreier/Schulze, 2013, §72 Rdnr. 6 w. reference to Schricker/Vogel §72 Rdnr. 18 and Wandtke/Bullinger/Thum §72 Rdnr. 10[4] and Thum, in: Wandtke/Bullinger, UrhG, 32009, §72, Rn. 15.), by legal commentaries, such as K. Hartung, E. Ludewig, B. Tellhelm: Röntgenuntersuchung in der Tierarztpraxis. Enke, 2010[5] or T. Hillegeist: Rechtliche Probleme der elektronischen Langzeitarchivierung wissenschaftlicher Primärdaten. Universitätsverlag Göttingen, 2012[6] or S.C. Linnemann: Veröffentlichung „anonymisierter“ Röntgenbilder. Dent Implantol 17, 2, 132-134 (2013)[7], and indirectly by a ruling of a German 2nd-level court (LG Aachen, Urteil v. 16. Oktober 1985, Az. 7 S 90/85[8]), which mentions copyright in x-ray images, and by the Röntgenverordnung of Germany, a federal regulation about the protection against damages by x-rays, which in §28 Abs. 5 twice mentions the “Urheber” (author/creator) of x-ray images[9].
The letter of the law grants this right to the "Lichtbildner"[10], i.e. the person who created the image. The literature seems to uniformly consider the medical doctor, dentist or veterinary physician as the rights holder, which may result from the circumstance that in Germany many x-rays are performed in ambulatory setting and that the doctor prescribes the settings for the individual imaging. --Túrelio (talk) 07:40, 29 September 2013 (UTC)

Yes the doctor orders a "CT head with contrast". And you are saying that means that the doctor owns the images? James Heilman, MD (talk) 01:38, 30 September 2013 (UTC)
In the US, whoever owns/leases the equipment, aka the medical facility, owns the works thereof. Now, who owns the rights to the imagery? The patient or the facility in regards to releasing it widely? That, in the US, seems to be a question with zero legislation I can find regarding such imagery. If one considers the gene patent case law, the imagery is that of a physical object of nature, hence cannot be copyrighted. If one considers photographic case law, it may or may not be, diagnostic imagery has yet to be tested in court and I cannot find legislation regarding who would be considered the copyright holder. But, the film or data would technically be owned by the facility. It again gets nebulous when the patient is given a copy, as my family has repeatedly have had done. My "gut" feeling is that US law would hold harmless anyone given a copy for educational usage, for profit, it might be a bit up in the air. It would also be a case few law firms would want to take to court on either side. No legislation, nebulous law, a jury decides if imagery of their insides is theirs or not... (Yes, I know a lot of medical professionals and legal professionals.)Wzrd1 (talk) 03:58, 6 October 2013 (UTC)
Getting back to Germany, this document from the website of the Imaging section of the Deutschen Gesellschaft für Orthopädie und Unfallchirurgie ("German Society of Orthopaedics and Traumatology") also seems relevant. I gather from Google Translate that they say the lichtbild rights would generally belong to the employer. --Avenue (talk) 11:37, 8 October 2013 (UTC)
Thanks; this source has already been mentioned by Rillke in the deletion discussion. Per [11], (pg. 15, 35), this is correct as much as it concerns the economic rights. --Eleassar (t/p) 12:21, 8 October 2013 (UTC)
Sorry, I didn't realise it had come up before. I've only read quickly through that discussion; I should go through it more carefully. --Avenue (talk) 12:54, 8 October 2013 (UTC)

As an additional confirmation that the patient is not the copyright holder, see also this source: "Archiving regulations are country-specific. In Germany, the data must be kept for 10 years. The statue of limitations actually expires after 30 years. According to copyright law, the radiograph is and remains the property of the imaging hospital/physician."

discussion[edit]
I think in most modern hospital settings the doctor doesn't take the x-ray or perform CT scans or ultrasounds. A dentist would do his own x-rays, though a CT scan for implants would be outsourced, and in the third world or in episodes of House, the physician might be more involved. You note a gap between the letter of the law and actual practice (who is regarded as rights holder). Do we follow the letter of the law or actual practice. It seems that in actual practice, in US or Europe, the concept that an unpublished x-ray is copyright-protected is met with confusion and humour. This isn't an artistic endeavour for which copyright serves a useful purpose. Remember too that one may see many physicians. For example, in a neurology ward, several doctors may meet to discuss a patient and collectively agree to perform such and such a standard diagnostic scan. For CT scans, we aren't talking about the "physician's assistant" or a mere "technician" but a department and people with specialist qualifications and great skill. The idea that any one of them individually should be a rights holder is rather strange. I doubt very much there is a record of who pressed the button. Colin (talk) 08:41, 29 September 2013 (UTC)
"You note a gap between the letter of the law and actual practice .." — not really what I meant, but may be my "however" was misleading (removed it now). This refers to what is actually meant by the law's term "Lichtbildner", as §72 UrhG doesn't specify it.
".. in US or Europe, the concept .." — as the above statement relates to Germany, it's totally irrelevant what people in the US or elsewhere think about that. I do not claim that the German legal view of this issue is true for all other European countries, which differ in their copyright laws anyway. --Túrelio (talk) 08:57, 29 September 2013 (UTC)
I think James has some info about Swedish practice, though, and Hellerhoff may give us info on German practice. I can't see another translation for "Lichtbildner" than "Photographer". The physician is most certainly (in the cases we see here) not the photographer. While it might be convenient for the physician to think he owns the image when he wants to publish in a journal, the actual annoying law differs and is conveniently ignored.
Your description in the above "what we know" section of "a technician or the physician’s assistant" is extremely unhelpful and misleading. Like a photographer's assistant who holds the lights or helps arrange the model's pose, or may even press the button under the direction of the photographer. That is nothing like we have here. The radiology department is totally separate from the physicians and the types of images requested are standardised -- choosing a particular angle to x-ray or type of MRI isn't a creative act, it is a skilled medical decision that is made for diagnostic purposes. I would appreciate if you revise your description. Colin (talk) 09:27, 29 September 2013 (UTC)
Note: Túrelio has removed this phrase. Colin (talk) 14:09, 29 September 2013 (UTC)

It seems quite surprising to me that article §72[12] of the German law, which I think talks only of photographs and things made in a similar way, would apply to MRI, CT and PET images (which require complex mathematical calculations, and produce 3-D images). So far all I can see bearing on this in those links is a quote from someone named Schulze simply asserting that such images fall under photograph protection (Lichtbildschutz). Have I've missed something? (My German isn't good, sorry.) I would really like to understand the rationale behind this better. --Avenue (talk) 13:44, 29 September 2013 (UTC)

@Avenue, IANAL. As a general remark, the wording of laws is often rather unspecific and therefore needs more flesh, which happens by actual court rulings and by the scholarly literature created by legal experts.
1) The wording of §72, Abs. 1 UrhG "Erzeugnisse, die ähnlich wie Lichtbilder hergestellt werden" (transl.: products that are created in a similar way as photographs) couldn't even be broader or more unspecific. There is no reasonable doubt that classical x-ray images are created in a way similar to classical photographs, by exposing a sensitive medium to radiation (be it visible light or invisible x-rays). As nobody here questions that digital images are copyrightable, though they are created without using sensitive photographic film, why shouldn't CT, MRT etc. images be copyrightable? (remember, the §72 protection does not require creativity)
2) Above I had provided scholarly sources as well as an actual court-ruling, which touches copyright of x-ray images. About "someone named Schulze": both cited references are the German standard literature (scholarly comment) for copyright law of Germany[13]. The Dreier in Dreier/Schulze[14] is Prof. Thomas Dreier; Dr. Gernot Schulze is a lawyer, specialized in copyright[15]. (Just as additional evidence: when you search for "Dreier/Schulze" in :de, you get 196 hits.) When legally educated users on :de discuss individual cases or answer questions, they nearly always cite Dreier/Schulze. It's similar with "Wandtke/Bullinger"[16]: Wandtke was a professor of law (now retired) at Humboldt-Universität Berlin[17]; Bullinger is a lawyer in Berlin[18] and professor at Cottbus university[19]. --Túrelio (talk) 15:21, 29 September 2013 (UTC)
Thanks, Turelio. I agree the law's wording is unspecific and open to some interpretation. My thinking as to why MRI, PET, and CT images might not be protected under §72, Abs. 1 UrhG is below, but IANAL, let alone a German copyright lawyer. The details you've now given about the source of that quote convince me that the people making that statement and the previous commentary it cites are certainly qualified to do so, and that it's probably as authoritative as scholarly literature can be. --Avenue (talk) 21:11, 29 September 2013 (UTC)
During the web-research in preparation of my initial statement above, I got the impression (may be wrong) that judiciary (and consequently the practise commentaries) in Germany so far had only to deal with x-ray images (classical), not with the more modern imaging methods. The latter seem to have been considered only in the scholarly legal comments by academic legal experts, such as "Wandtke/Bullinger". Recently a new edition (4th) of Dreier/Schulze has been issued, which may include comment on modern imaging. But I don't have the spare € 149 to buy the book ;-). --Túrelio (talk) 13:15, 30 September 2013 (UTC)
MRI and PET are really nothing like photography; CT is closer to x-ray with lots of processing afterwards. I'm not sure that introducing complex computations into the process changes things -- after all my camera does very complex stuff with the Bayer-pattern sensor to produce a colour images, and Hugin does some fancy 3D calculations to produce a panoramic projection. Can an x-ray be art? Sure: Frau Roentgen’s Hand. Right from the start! -- Colin (talk) 14:09, 29 September 2013 (UTC)
To me, the need for complex transformations is what most sets these techniques apart from photography. The raw data from CT exposures (a sinogram or w:Radon transform) is essentially an unfocussed x-ray image, i.e. somewhat similar to a photograph, so I could understand that raw image being protected under §72. But the sinogram isn't a useful image; it's only after that data is massively transformed that you get a useful result. Sure, there are good reasons for incorporating complex computations into photography, but they're not an essential part of the technique.
There are some other differences, e.g. MRI and PET recording radiation emitted from within the subject, and CT scans and x-rays recording radiation shone through the subject, instead of reflected off it as is typical in photography. But the source of the radiation doesn't seem as central an issue to me. You can take photos using emitted or transmitted light too. --Avenue (talk) 15:05, 29 September 2013 (UTC)
Per en:Photograph, "A photograph or photo is an image created by light falling on a light-sensitive surface" - this is also the case here. Complex transformations are an essential part of the technique of creating the majority of normal colour digital photos: "Most modern digital cameras acquire images using a single image sensor overlaid with a CFA, so demosaicing is part of the processing pipeline required to render these images into a viewable format.".[20] --Eleassar (t/p) 22:50, 29 September 2013 (UTC)
w:Demosaicing can be done with relatively simple algorithms like linear interpolation or nearest neighbour techniques. It doesn't require calculus, like PET, MRI, and CT image processing. Another factor setting PET scans apart is that they record only simultaneous emissions in opposite directions, which is not like any form of photography I'm aware of. But anyway, we have a quote above from legal scholars that means it's unnecessary for us to puzzle this out. --Avenue (talk) 03:14, 30 September 2013 (UTC)
The CT, MRI and PET may be seen as a synthesis of photographs or at least images analogous to photographs. For a start, this definition simply states that a photograph is an "image created and distributed by photographic apparatus according to a program"; whereas this page mentions "a small slice of time, a certain frame of detail and a single vantage point" and defines a photograph as "an appearance removed from its continuum of causality". However, as you say, we have the quote, so this is just some mind food for free moments. In relation to this discussion, this page provides a very thought-provoking quotation on the reproducibility and originality of photographs. Perhaps this is the reason why photographs and works analogous to them are covered in the related rights section of the German and the Swedish copyright act. --Eleassar (t/p) 06:51, 30 September 2013 (UTC)
  • However one should note that if images were used for a medical presentation e.g. close doors within a hospital to senior colleagues or the trust, then you probably won't ask for permission to use said patient's case. However if you were to publish a medical report or give a presentation then ethically one would need the patients consent to use it. So if it's from a book one can reasonable assume that permission was given from the patient. If it's from anywhere else definitive proof that consent was given would have to be sort. Is it copyrighted? Don't ask me. But from experience with hospitals consent has to be given to release it into the domain and commons at the very least should see evidence for permission unless it's published in a book (as reasonable evidence for permission to publish has been demonstrated). Flickrworker (talk) 22:53, 29 September 2013 (UTC)
@Flickrworker, patient's consent is potentially relevant (if the image allows any identification), but is not an issue in this discussion. Also, the use of such images among those doctors who treat/consult the individual patient, is uncontroversial. Even the above cited court ruling of LG Aachen from 1985, stated expressedly that the needs of the patient are more important than copyright and ownership in the images.[21] --Túrelio (talk) 06:40, 30 September 2013 (UTC)
That is Germany and not a worldwide representation. May I ask has anyone on here been involved in a medical case study or trial. Even to use the data with no names or anything distinguishable in the public domain stills requires an agreement to use the information in form of an "ethics form". Flickrworker (talk) 08:19, 30 September 2013 (UTC)
The consent is to "collect" the info not to use it. James Heilman, MD (talk) 15:59, 30 September 2013 (UTC)
Well, this discussion-section is about "In Germany ..", not my fault. Besides, though an important issue, it has nothing to do with copyright. --Túrelio (talk) 08:28, 30 September 2013 (UTC)

United States[edit]

  • In the U.S. ...
Maybe this is not particularly helpful, since I am not a legal scholar, but w:Feist v. Rural is an existing precedent that suggests that copyright protection requires a creative step. Lists of factual information (as in the list of telephone numbers in the case) are not protected. I guess that would prompt the question of "does a skilled decision undertaken for informational/diagnostic purposes constitute a creative step?" -- UseTheCommandLine (talk) 20:35, 29 September 2013 (UTC)
I cited below a US legal scholar's discussion of two CT scans, which concluded that "In neither case was protectable authorial creativity exercised."[22] Those scans were conducted for archaeological research, not medical diagnosis, but I imagine medical scans usually wouldn't be more creative. --Avenue (talk) 21:22, 29 September 2013 (UTC)
Medical imaging data is data that happens to be in the form of a graphical image. It seems like a lot of people are getting hung up on the "image" part, but not only is it not a creative work, it also constitutes part of a patient's medical information, which technicians have been paid to gather on behalf of the patient. Thus it seems like it should be treated as such, just like the data from blood work or other data gathering that doesn't happen to be in the form of a graphical image. I don't have any particular legal or medical insight, but I think this general distinction between data and a creative work is somewhat lacking in the discussion.172.12.225.38 01:15, 11 October 2013 (UTC)
You could make a similar point about digital photos; that they are just data that happens to be in the form of a graphical image. I think the critical thing (in the U.S. at least) is not the particular means of capturing the image, but whether the image is creative. But IANAL.
In some European countries, in contrast, creativity doesn't matter for works analogous to photos, which are still protected even when not creative. --Avenue (talk)
As I recall, the facility owns the rights to all items created on premises, not the technician making the item. The item could be a prosthetic, an electronic device, a medical implant or in this case, diagnostic imagery. That said, the facility tends, in my own experience, to request permission to use a patient's diagnostic imagery for uses outside of internal medical education and in some cases, even for internal medical education (the facility requested my wife and I to give permission for our minor daughter's x-ray films to be displayed to other physicians in the educational facility. In another facility, I saw a coworker's tibial plateau x-ray in the screen in a class on diagnostic imaging and evaluation of said imagery, as the ED physician missed the injury and radiology caught it a day later.) So, it's a bit of a mixed bag in practice, but in reality, it is their equipment making the imagery, their film in some cases, it ends up as their property, but further guided by medical privacy laws. I can think of no instance where a facility would object to my posting my own diagnostic imagery for public use, especially for educational usage, largely due to the vacuum present in the legislation. But then, most medical institutions recall the PR nightmare involved in cell cultures taken without informed consent that are still in use today, as well as the patented gene debacle. But, to extend the rationale on gene patents, the structures imaged are works of nature and part of the individual, not the innate property of the one imaging such natural physiological structures.Wzrd1 (talk) 03:35, 6 October 2013 (UTC)
X-ray artwork is protected everywhere.

Sweden[edit]

  • In Sweden

It seems X-ray images are protected.[23] There isn't really any need for creativity since the protection of photographic pictures is not a copyright but a related right. To whom the rights belong is another matter. Edaen (talk) 20:51, 29 September 2013 (UTC)

A note about differences between Swedish and American legal traditions. In Sweden there is no case law and no stare decisis, there is court practice. A lower court is not formally bound by previous decisions by higher courts. In the hierarchy of sources of law number one is the statute, two the preparatory works, three court practice and fourth doctrine or scholarly litterature. The quote from the SOU 1956:25 is the law. X-ray images are copyrightable in Sweden. What is not clear is if a machine made image is copyrightable. Edaen (talk) 05:57, 1 October 2013 (UTC)
It's not obvious in that law whether diagnostic X-ray images are protected, or whether they meant artwork or other X-ray images, which obviously are covered everywhere (and as fully copyrightable creative artwork). WhatamIdoing (talk) 15:35, 7 October 2013 (UTC)
Both are meant; see [24]: "Pictures can be protected as photographic works or as photographic pictures. The former requires a higher level of originality; the latter protects all types of photographs, also the ones taken by amateurs, or within medicine or science. The protection requires some sort of photographic technique being used, which includes digital cameras as well as holograms created by laser technique. The difference between the two types of work is the term of protection, which amounts to seventy years after the death of the author of a photographic work as opposed to fifty years, from the year in which the photographic picture was taken." --Eleassar (t/p) 17:05, 7 October 2013 (UTC)
Read it and it does not state "diagnostic X-rays" are protected by copyright. James Heilman, MD (talk) 23:49, 7 October 2013 (UTC)
No, but it does state "protects all types of photographs, also the ones taken by amateurs, or within medicine or science". I can guarantee you that if diagnostic images would per some miracle not be copyrightable, this would be written, as well as evident from the legislation. --Eleassar (t/p) 05:22, 8 October 2013 (UTC)
Your opinion is noted, but I value your "guarantee" at the price that was paid for it. $0. One can't prove a negative. On the other hand, I guarantee that there's no statue or court practice that gives "diagnostic X-rays" protection. --Elvey (talk) 03:16, 8 March 2014 (UTC)
In the light of the general statement that "all types of photographs, also the ones taken by amateurs, or within medicine or science" are protected, the burden of proof that the diagnostic X-rays are exempt is on the uploader (see COM:EVID). Besides, for Sweden, we have the opinion of a respected legal scholar (see below). --Eleassar (t/p) 09:23, 8 March 2014 (UTC)
Your opinion is noted, but I disagree, WRT the US. A scholar opined on diagnostic X-rays in particular? Fourth in the Swedish hierarchy in any case. I take it from your reply that you concede that you know of no statue or court practice that gives "diagnostic X-rays" in particular protection in Sweden.--Elvey (talk) 21:03, 8 March 2014 (UTC)
As stated, the burden of proof is on the uploader, and an opinion of a legal scholar (again, see below) is enough to raise significant doubt that these images are free. --Eleassar (t/p) 22:42, 8 March 2014 (UTC)
For reasons already stated, your reiterated opinion is again noted, but I disagree. --Elvey (talk) 22:57, 8 March 2014 (UTC)
Who cares about your opinion in any case. As you can see here, administrators do care about opinions of notable lawyers. --Eleassar (t/p) 13:14, 9 March 2014 (UTC)
Again, you're wrong. Your personal insult aside, I can see here no decision that supports your claim.
There's no statue or court practice that gives "diagnostic X-rays" protection. No notable lawyer opined on diagnostic X-rays in particular, either. There's no statue or court practice that gives "diagnostic X-rays" protection. One can't prove a negative. --Elvey (talk) 22:00, 26 March 2014 (UTC)
You're wrong, but I'm not willing to argue about this with you ad nauseam. The opinion of a notable lawyer was actually published a long time ago,[25] and the decision to close the DR was based on it, which is clearly evident,[26] but you have for an unknown reason decided to plainly ignore this. --Eleassar (t/p) 23:12, 26 March 2014 (UTC)
A notable lawyer opined on X-rays, not diagnostic X-rays in particular. As has been pointed out by others. I'll assume you are forgetting that rather than intentionally misrepresenting Levin's letter and the reason given for closure. You admitted James was right, above. Now you're denying it. Talk about arguing ad nauseum! There's no statue or court practice that gives "diagnostic X-rays" protection. No notable lawyer opined on diagnostic X-rays in particular, either. You've tried and failed to show otherwise. --Elvey (talk) 07:25, 2 April 2014 (UTC)
Prof. Levin was asked to opine and did opine on medical images, which is clearly evident from her reply: "In regard of medical images...". --Eleassar (t/p) 08:17, 2 April 2014 (UTC)

┌─────────────────────────────────┘
I thought that Levin's response was interesting: she assumes that they're copyrightable, but can only guess at who might hold the copyright. (If the world were a sensible place, then this subject would be addressed explicitly in the statute, but, alas, we live in a fallen world.)

What she didn't address is whether copyright could be meaningful. When you hold the copyright, you have the exclusive right to make the image public, and you have the right to prevent other people from copying the image.

When we're talking about a diagnostic image, you do not have the right to make the image public: posting patients' diagnostic images without their consent is a crime in most (all?) of the world. You also do not have the right to prevent other people from copying the image: you cannot prevent the patient from getting a copy, and you cannot prevent copies from being made (e.g., to send a copy to another physician). So it seems nearly pointless to hold the copyright, because the alleged holder does not, in practice, hold the rights that a copyright holder would normally be entitled to.

If Levin is interested in this area, perhaps someone would pass this comment back to her. It would be interesting to see a journal article on whether you can really have a copyright if you if you get none (or almost none?) of the rights that are associated with that term. WhatamIdoing (talk) 16:39, 13 April 2014 (UTC)

United Kingdom[edit]

  • In the U.K. ...
In a 2008 discussion, MichaelMaggs (talk · contribs) said that x-ray images will normally be protected by copyright due to "the high level of skill, labour and judgement required to produce a good quality x-ray, particularly to show contrast between bones and various soft tissues". The quote was apparently from The Law of Photography and Digital Images (2004), by Michalos QC. --Avenue (talk) 13:17, 8 October 2013 (UTC)

Wikipedia/Commons vs Publishing[edit]

I think I have figured out why physician authors (including radiologists) are blissfully ignorant of the copyright issues concerning radiography images, despite having published such images in journals. The permission needed in order to publish such an image in a journal is quite different to the permission needed to upload to Commons or Wikipedia. Let's leave for now the question of whether such images are protected by copyright or related rights in some countries and assume (like Elsevier state) that they are copyrightable. In the UK the Society of Radiographers believe this copyright is owned by employer (unless the radiographer is self-employed -- though even then their contract might require them to transfer ownership to the hospital). This copyright owner can grant certain permissions to whoever they wish, without giving up their ownership of the copyright. So the hospital and its employees will be given permission to use such radiographic images for the various purposes that they require for medical care. Physicians employed at the hospital will, in their contracts, be given the right to publish patient information in journal papers or books they write (providing they are made anonymous) [James can confirm this]. Patients may also be granted permission to "do what they like with" their own image -- whether this is informal or formal doesn't much matter -- nobody is going to be suing the patients if they upload their MRI to Facebook.

So the reason the authors of papers to journals don't seek permission to use radiographic images of their patients in papers they write is that they already have that permission in an existing chain of contracts from radiographer to hospital to physician. For third-party images, they would have to get permission. See Wiley Permissions Guidelines for Authors. The request is typically permission to use the image "in this and all subsequent editions of [the specified work], and in all derivative works, in any and all media and in all languages throughout the world". Nowhere is the copyright of these images transferred to the publisher. I now suspect that although the publishers regard these images as copyrightable, they don't claim copyright for themselves (as they do with the written article, but that's in the contract with the author).

However, for Wikipedia/Commons we require the uploader to state one of four things:

  • The image is already in the public domain
  • The image is already published with a free licence (source URL given).
  • As copyright holder, I release the image to public domain or under a free licence.
  • I have permission (to release the image to public domain or under a free licence) from the copyright holder via this OTRS ticket.

We aren't asking for permission to publish on Wikipedia website only. It is quite different and far stronger and not something traditional medical publishing has dealt with. However, it is something that Open Access journals require (because they release work with a CC licence) -- so it should be worth figuring out how they deal with this issue.

-- Colin (talk) 08:36, 30 September 2013 (UTC)

This differentiation was largely missing so far. --Túrelio (talk) 08:45, 30 September 2013 (UTC)
Symbol thumbs upcolor.png - makes sense, with the following remark: in the countries where medical images are copyrighted, patients may freely publish them and otherwise use them, but they can't freely license them, because they are not the copyright holders. --Eleassar (t/p) 09:19, 30 September 2013 (UTC)
I have written to PLOS Medicine. I hope they don't reply that it is the responsibility of the authors to ensure they have any necessary permissions ;-) Colin (talk) 13:08, 30 September 2013 (UTC)

Any evidence that this is true "So the reason the authors of papers to journals don't seek permission to use radiographic images of their patients in papers they write is that they already have that permission in an existing chain of contracts from radiographer to hospital to physician."? There is nothing this clear in my area of the world. James Heilman, MD (talk) 20:15, 30 September 2013 (UTC)

James, if you wished to publish a paper on a particular patient and their case history, would you not first have to clear said work with your facility? I've seen such agreements in US facilities and also in our joint facilities, so I would imagine such exists in your country. For the US facilities I'm familiar with, it was largely about protecting the facility from harm in regards to patient privacy laws, as well as potential credit for hosting a physician who wrote a noteworthy paper.Wzrd1 (talk) 03:51, 6 October 2013 (UTC)
I work in a system which is government owned. So if these images are copyrightable the question is who within this system has permission to give consent for use? The chief of staff, the CEO, the health minister, the College of Physicians and Surgeons, the Queen? I have asked a number of these individuals and they did not know (the Queen refused last time I asked). My College of Physicians similar to the GMC in UK [27] is happy without signed patient consent for anonymized images and was happy with my consent forms for those images of people who are identifiable. James Heilman, MD (talk) 10:01, 6 October 2013 (UTC)

Previous discussion[edit]

  • Wikimedia-l [28]
  • WP:MED [29]
  • Feature image deleteion discussion [30]
  • Commons patient images [31]
  • Comments by WMF legal intern [32]

Proposals[edit]

(1) We take a middle ground[edit]

We do not want to be cowboys and start scraping images from medical textbooks as if no copyright exist. We also do not want to be cowards and require OTRS permission directly from all dozen or so potential owners assuming that these images are ownable. We should take a conservative position and do what the rest of the publishing industry does which is accept images from either the physicians or staff involved in its creation or the subject of the image in question.James Heilman, MD (talk) 00:14, 18 September 2013 (UTC)

Support
  1. Support as proposer. James Heilman, MD (talk) 00:35, 27 September 2013 (UTC)
  2. Support. Let's not cripple ourselves for no good reason.--Taylornate (talk) 05:03, 27 September 2013 (UTC)
  3. Support on the principle that until there is a law, there is no copyright. Diagnostic images are data collected by instruments and displayed in a logical format, both by actual process and by intention. Settings may be variable, but are chosen to produce the most useful data, not for creative effect. Consider what the customer is paying for. If I needed an X-ray to diagnose the state of my health I would consider it a breach of contract if anyone in the process of producing the image did not treat it as data collection to be done as effectively as reasonably possible with the available equipment, and played around for creative effect. · · · Peter (Southwood) (talk): 05:59, 27 September 2013 (UTC)
  4. Support. No-one has been able to find a single copyright case regarding patient X-rays, as I understand it. Which is remarkable given the general rapaciousness of the copyright industry - David Gerard (talk) 06:53, 27 September 2013 (UTC)
    In Germany there was a 2nd-level court case[33], in which x-ray copyright was mentioned, though it was not about. And your 2nd statement seems to assume that x-rays are owned by Sony and alike. They are not and it's unlikely that individual doctors or hospitals will sue their own patients. So, copyright-cases about x-ray and similar should be extremely rare. That's a problem for us, due to missing case-law, as it leaves us with the written law and its eventual interpretation by legal experts. --Túrelio (talk) 20:15, 30 September 2013 (UTC)
  5. Support Commons absolutely needs a pragmatic solution to this. The professional publishers have found one. Speculative theoretical law is of academic interest only and damaging to our goal of providing educational material. -- Colin (talk) 07:22, 27 September 2013 (UTC)
  6. I don't have a professional opinion but I followed the discussions on list and it occurs to me that this is a pragmatic and good approach. Very nice summary and explanation by James here. --Manuel Schneider(bla) (+/-) 07:58, 27 September 2013 (UTC)
  7. Support. I do not have a user account on Wikimedia Commons so I don't know if I have a voice here. (I am Axl on en.wikipedia.) Anyway, this proposal is a sensible approach. 91.224.27.228 10:45, 27 September 2013 (UTC) (Axl)
  8. Support per Pbsouthwood and David Gerard. EllenCT (talk) 08:37, 30 September 2013 (UTC)
  9. Support essentially per Peter. I think the well-meaning attempts here to locate, translate, interpret and apply native-language statutes is a terrible problem of original research using primary sources and should not be pursued. We aren't lawyers well-versed in international law (pretty sure most of us aren't) and there's about as great a danger of incorrectly interpreting the law in too narrow a fashion as too broad. Zad68 (talk) 19:59, 30 September 2013 (UTC)
    If no secondary sources to the opposite can be found, we should err on the side of caution, because COM:EVID and COM:PRP require us to do so. In addition to official translations, we have people participating here who are fluent both in English and the source language (e.g. Swedish), and some Commons editors are quite knowledgeable about the copyright law. --Eleassar (t/p) 07:16, 7 October 2013 (UTC)
    We are not required to keep COM:PRP unchanged if doing so permanently decimates our collection of diagnostic images. It appears to have been added by Michael Maggs in 2008 and in the policy discussion at the time, I cannot see where this new text was discussed. There is much that I agree with it but perhaps there are cases where we need to align ourselves with the real world rather than some pure imaginary one. Some Commons editors believe they are more knowledgeable about international copyright law than the lawyers themselves. Colin (talk) 10:47, 7 October 2013 (UTC)
    This permanently decimates our collection not only of diagnostic, but also of other images. However, a wider discussion is needed to remove this clause that has been followed by all administrators that I've seen to close the DRs. It doesn't really matter who and when added it, if it has been followed by the community in general. Yes, this are those users who say that 'images are not copyrighted' in spite of missing evidence about this, particularly in cases (like Germany, Sweden) where the copyright act ambiguously states that 'images analogous to photographs are copyrighted'. I think that in absence to the contrary this should be understood widely, because the law is written widely in order to cover all the possible cases. --Eleassar (t/p) 11:01, 7 October 2013 (UTC)
    Please show me this source that says "images analogous to photographs are copyrighted" for Germany/Sweden. I believe you found something about related-rights, which are an issue, but aren't copyright. I would also appreciate a source directly concerning diagnostic x-rays. I have no problem with the concept that an individual x-ray could be copyright protected (if one can demonstrate it had originality or creativity) but much doubt you can show this is the case for diagnostic radiography. All we have, for any country in the world, is opinion. No facts at all. Colin (talk) 11:41, 7 October 2013 (UTC)
    For Sweden, this would be "A picture that has been prepared by a process analogous to photography is also considered to be a photographic picture." ([34], Article 49 a). For Germany, this is "Photographs and products manufactured in a similar way to photographs shall be protected, mutatis mutandis, by the provisions of Part I applicable to photographic works."([35], Article 72). Yes, this does not refer to the copyright sensu stricto, but the related rights. We've already discussed this in detail at the DR. --Eleassar (t/p) 11:47, 7 October 2013 (UTC)
    Yes I know we've discussed it there and I hoped you wouldn't keep repeating that mistake here. It just proves my case that no matter how keen people here are, we are all just amateurs making mistakes with terminology and analogies. Colin (talk) 12:27, 7 October 2013 (UTC)
    In this regard, let me also quote this source: "... radiography and other radiation recording techniques (such as X-ray radiography, gamma radiography, autoradiography) - which, in general, involve the recording of subsurface features of objects - are processes analogous to photography. Here, the source of the recording of images is not light but radiation, the techniques, however, are analogous to the techniques of photography. At the other end of the spectrum, there are then such picture-generating processes about which there could be serious doubts whether they are still analogous to photography or whether they are already beyond that category. The so-called nuclear magnetic resonance technique by means of which pictures are taken through scanning molecules, for example, in a human body that has been placed in a very powerful magnetic field (under the effect of that field, molecules emit radio signals which are recorded as a picture) or the techniques used for electronic microscopes are in that outer border area, although on the basis of an extensive interpretation of the term, they can still be deemed to be processes analogous to photography." --Eleassar (t/p) 12:30, 7 October 2013 (UTC)
    This is interesting but ultimately Zad's objection stands. We should not be deleting material based on whatever the amateur lawyers have found in their Google searches. International copyright law is just too complex, especially on this area that is on the border of anyone's experience. People in Sweden publish radiographic images, some of them with CC licences. How do these professionals do it. I'm far more interested in that answer than theory. Eleassar, if you find something interesting/useful, offer it to the WMF and their legal team. Stop arguing with other Commons users based on your original research. We do not make policy from Google snippet view. -- Colin (talk) 17:39, 7 October 2013 (UTC)
    Do you know what reply I have today received from professor Levin in regard to having written her about this snippet? "Yes, thanks. We have the similar attitude." Get some sleep and wait for her to send us her full answer. --Eleassar (t/p) 17:46, 7 October 2013 (UTC)
    P.S.:: In addition to this, the statement that "MRI images, CT scans, and the like are analogous to photography" has also been published on pg. 296 of this already mentioned peer-reviewed article. --Eleassar (t/p) 20:27, 7 October 2013 (UTC)
  10. Support per above comment. Applying international case law is certainly an example of original research and without a clear understanding of the copyright holders (which there does not seem to be here) I do not see how it is possible to acquire a satisfactory free content license. LT910001 (talk) 00:14, 4 October 2013 (UTC)
    Note: An op-ed by James Heilman, MD titled Commons medical diagnostic images under threat from unresolved ownership was published in the (English) Wikipedia Signpost today. --Avenue (talk) 08:24, 6 October 2013 (UTC)
  11. Support Let common sense prevail. Let's not unnecessarily nitpick, and take the middle ground. No radiology tech has probably ever sued any journal/other entities for publishing X-rays without their consent. --Dwaipayanc (talk) 02:44, 6 October 2013 (UTC)
  12. Support. As a lawyer, I support this course of action. There is no possible liability to Wikipedia or its users, and there is no possible harm to anyone or their rights. -- Ssilvers (talk) 03:42, 6 October 2013 (UTC)
  13. Support per Heilman, Southwood, Gerard and Silvers. Dank55 (talk) 05:41, 6 October 2013 (UTC)
  14. Established practice worldwide, which may even has some legal standing (long lasting precedent). Let's avoid copyright paranoia. --Piotr Konieczny aka Prokonsul Piotrus Talk 05:59, 6 October 2013 (UTC)
  15. Support per Heilman and publishing precedents. Spencer (talk) 06:35, 6 October 2013 (UTC)
  16. support we are writing an encyclopedia, not pre-litigating the dysfunctional copyright system. Slowking4†@1₭ 12:59, 6 October 2013 (UTC)
    Commons is not an encyclopedia, but instead "a database of freely usable media files", which includes a sort of promise that the hosted images can be used without being exposed to litigation. --Túrelio (talk) 15:40, 6 October 2013 (UTC)
    Commons is becoming a repository for images in the wikiverse only, since all the "un-ideologically pure" images are deleted. i thought you were here to delete "PD-no notice" images, because there is no FoP US, when in fact there is more chance of litigation of FoP statues in Germany [36]. when there is a threat of litigation over medical images, then we can revisit. Slowking4†@1₭ 00:56, 9 October 2013 (UTC)
  17. support for now. I'm watching this discussion from the beginning and glad to see this is not converted to another Commons-Wikipedia issue so far. I agree with Avenue that "DRs can serve a useful purpose in identifying problems ". But it may be a difficult point to understand for many, especially people mainly in our sister projects. So please avoid further DRs in this matter now and let us try to get into a concrete decision with the help of subject experts, including people from WMF. I don't think generic arguments like "what is Commons and what Commons is not" will help much, here. JKadavoor Jee 16:05, 6 October 2013 (UTC)
  18. Support. Unfortunately, we can never be 100% sure that a given image will not have unexpected copyright issues. We are expected to act maturely and rationally, not expose the foundation to unnecessary risk, but not undermine Commons' purpose by needlessly deleting images when there is no evidence of such risk. This proposal is the sanest path we can realistically take. – Quadell (talk) 18:32, 6 October 2013 (UTC)
    There are images about which the doubt is significant, e.g. those that have been uploaded from Sweden or Germany, because of the clauses about the related rights on images analogous to photographs in the copyright acts of these countries, and those about which the doubt is negligible, e.g. those that have by reliable evidence come out of copyright even if we presume they were originally copyrighted in the source country, or that have been freely licensed by all the potentially relevant copyright holders. --Eleassar (t/p) 07:09, 7 October 2013 (UTC)
    And exactly how many diagnostic images do we have that were created before 1923? We cannot even determine who all the potential copyright holders are, let alone determine if the images are copyrightable. James Heilman, MD (talk) 10:16, 7 October 2013 (UTC)
    I don't know, I didn't count them. I can only say in general that "Images that were published in Sweden before 1969 are free, images that were published in Slovenia before 1970 (and similar in the other countries of the former Yugoslavia) are free etc." I guess there are websites where the images have been created by the site owner and he has freely licensed them / given the permission for the free reusage, these are also free. --Eleassar (t/p) 11:04, 7 October 2013 (UTC)
    So you are saying other websites have "figured it out". Do you mind asking them how they do things? I have asked some of these sites and they do nothing more than we do here. They simply take peoples word for it. James Heilman, MD (talk) 14:48, 7 October 2013 (UTC)
  19. Support - per Doc James, Slowking, Piotr and others. Smallbones (talk) 02:33, 8 October 2013 (UTC)
  20. Support - We should accept unpublished X-Ray images. Doing otherwise would be copyright paranoia.--Pere prlpz (talk) 20:32, 8 October 2013 (UTC)
  21. Support - Patient protection laws effectively give wide control to the patient with respect to medical records: they can obtain a copy and provide the copy to other providers whenever they deem it appropriate, and these new providers can reuse those records as necessary or as allowed by the patient. The original provider cannot object to this sharing and reuse, therefore even if traditional copyright doctrine would seem to give them copyright over such images, the law contradicts that and the mere fact the original provider owns the original records does not translate into copyright ownership. While it is less clear whether patients can disseminate their records, and more specifically medical examination images, in public places, the fact the law nullifies traditional copyright protection to the extent just described makes it unlikely that original providers could assert copyright protection in these specific instances - and a large part of the rationale behind patient protection laws would still hold. Therefore, the evidence points strongly toward an absence of copyright protection for those images when their use is allowed by the patient directly or indirectly, in all countries with such patient protection laws (so most countries, including the US and EU states). We should thus retain those images, unless informed legal advise asserts otherwise. Cenarium (talk) 01:37, 13 October 2013 (UTC)
    Per [37] (pp. 645-646), patients' rights "arise out of the special relationship patients have with their health care providers and so they are enforceable only against those providers, not the world at large. Also, they cannot readily be bought and sold, and they do not entail the rights to destroy or exclusively possess medical information. [...] Patients may control their medical information, but have no established way to transfer their rights." Not to say that a medical image is more than just information, it is a fixed work, which may or may not be copyrighted depending on the law of the country. Here is an analysis of a court case from Australia, which clearly states that medical records can be copyrighted. --Eleassar (t/p) 12:02, 14 October 2013 (UTC)
    They may be, but even if they are copyrighted, the law effectively gives license to patients to use them in ways that defies any meaningful copyright (not just in a traditional medical context, see examples below). The original providers could claim copyright protection against uses by third parties, but not by the patient or those authorized by the patient, it's as if the patient would have a copyright license granted by the original provider. Of course what makes all this highly theoretical is that third parties generally cannot use this information without patient consent, which explains the scarcity of legal cases.
    More specifically, let's consider w:Google Health: patients uploaded their medical records there, truly if this service could have brought legal trouble to the host, i.e. Google, they would not have launched it. They sure made a legal analysis of it all, and the only significant issue was patient privacy, not medical providers' copyright. Plenty of other sites where patients upload their medical information exist. This adds up to the evidence of all already cited research and educational sites which do fine with just patient consent. This also shows that this usage can occur outside medical context, such as scientific or educational (so includes us). The copyrightability of scans is already largely a theoretical issue, let alone the opposability of copyright protection against uses allowed by the patient. And in the later case, the evidence is overwhelmingly against, so unless we get legal advise otherwise... Cenarium (talk) 21:45, 15 October 2013 (UTC)
    Your argument amounts to "no-one has complained, so we can get away with it" (one of those forbidden arguments that are cited at COM:PRP), which of course does not make these files free. I would not build my case on Google Health: as you may read here, Google got into legal troubles due to copyright infringement (and other reasons) on more than one occasion. Not to say that it is clear a patient cannot be the copyright holder, theoretical or not. I'd also like to stress once more that you should consider specific circumstances in specific countries: in the United States, the radiological images are generally presumed to be free; in Germany and Sweden, on the other hand, they're not. --Eleassar (t/p) 22:36, 15 October 2013 (UTC)
    No, my argument is that patient protection laws gives license to patients or those authorized by same to use their medical information in almost whatever way they wish, to the extent that medical providers cannot claim copyright on uses allowed by the patient. It is the case in all countries with such laws which includes Germany and Sweden, irrespective of the existence of a copyright or lack thereof. Google Health launched while Google had those legal troubles you mention, which makes it even more likely that they made sure that the new service was legally sound. The other sites are corroborating evidence and as expressed elsewhere their representatives seem to have the same reasoning. You didn't read correctly as I never said the patient could own the copyright, only that they had the legal equivalent of a copyright license. Cenarium (talk) 18:58, 16 October 2013 (UTC)
    Cenarium, copyright law can't be argued into existence. It doesn't follow the reasoning of Commons users. Eleassar, please stop framing your arguments in terms of COM:PRP. We can all read it and it is part of the issue here. This should be an open discussion on what Commons should do in order to host xrays. There's absolutely no point in one amateur lawyer arguing with another amateur lawyer. And there is absolutely no point in having a policy discussion where there the option to change policy is forbidden. Let's just put this aside till WMF come back with an opinion from real lawyers. Colin (talk) 19:24, 16 October 2013 (UTC)
    Colin, this isn't me inventing copyright law but restating the position that professional publishers have with respect to this very special case. Eleassar, if you need further evidence on why you can't just argue with general copyright law without entering into specifics, then look at Breen v Williams (1996, Australia). The final decision in that case found in particular that practitioner's copyright precluded patient access to medical records. This actually prompted the adoption of newer patient protection laws in 1997 and 2000, which therefore by necessity effectively trump copyright to a large extent. The extent to which it does may be debatable, but then we should follow usual practice which strongly suggests that patients have a right to upload their scan results on internet sites or allow reuse by third-parties, such as for educational purposes. The evidence stands strongly in favor, so PRP out. Cenarium (talk) 22:56, 17 October 2013 (UTC)
    So your opinion is that professional publishers have to do with issues such as whether derivative works are allowed or not? I don't think so, and I also don't think that patient access to records has anything to do with the reusage and the creation of derivative works by third parties. --Eleassar (t/p) 06:50, 18 October 2013 (UTC)
    Cenarium, I don't disagree with you that in practice patients can do what they like with their images, and that it may be in certain countries the law explicitly supports that. But that only goes as far as what the patient does with their image, not what someone else does with the image. The right to publish an image on a website, say, doesn't give someone the right to relicence it under a CC licence as though the patient owned the copyright -- and this is currently required by our policy. Now it may be worth exploring whether in certain countries patient-uploaded files can be offered under other terms, but they can't be offered under CC without the copyright holder's permission and they can't be regarded as public-domain unless the law says they can. -- Colin (talk) 07:38, 18 October 2013 (UTC)
    Just to clarify the following: in regard to the amateur lawyering, I have not built my case on my original reasoning and the speculation that Google follows a high standard of legality and ethics, but on citations of books, articles and opinions written by "real lawyers" (specifically: [38] (pp. 645-646), [39], [40], the reply by the professor Levin). In addition, we have no sources stating that radiological images are copyrighted in the United States, but a number of those (besides the already cited, also [41] [42] [43] [44]) that treat them as copyrighted in Sweden and Germany, and not even one stating that they're not copyrighted there. --Eleassar (t/p) 07:49, 17 October 2013 (UTC)
    Eleassar, the mere fact that you have had to "build a case" shows you are amateur lawyering. This is called synthesis on Wikipedia -- assembling (sometimes tangentially related) sources together to make a novel point that none of the sources make. Your confidence on the US situation is not founded in any reliable source dealing with facts rather than speculative opinion. You continue to apply the double-standard that the US is assumed to have some mythical copyright exemption unless we can prove otherwise, despite scholarly comment on the matter saying clearly that the issue is very much uncertain. And I have yet to see a response from professor Levin so could you point out where that is. This is all deeply unhelpful and just arguing for arguing sake. This is not the sort of thing where amateur crowdsourcing works. And I don't know why people here are attempting it. Colin (talk) 10:21, 17 October 2013 (UTC)
    Again you are talking copyright generalities without focusing on the case at hand of patient reuse or reuse allowed by patient, which patient protection laws largely allow regardless of any practitioner copyright. FYI, Primary Health Care Ltd v Commissioner of Taxation concerned third-parties, not patient reuse. Cenarium (talk) 22:56, 17 October 2013 (UTC)
    The first source, already cited above, deals specifically with this issue. Any reusage by third parties, not just by patients, must be allowed. --Eleassar (t/p) 06:47, 18 October 2013 (UTC)
    This is not Wikipedia, where we report what is written in reliable sources, but Commons, where we have to make decisions about whether to keep or delete the discussed files, and we often use original synthesis in our decisions. However, the interpretation should be based on more solid evidence (reliable secondary sources) than just pure speculation about the legal standards of Google. In regard to the US radiological images, your opinion that this is uncertain is true, but the doubt is not significant, because it goes against the circumstantial evidence, there is no reliable secondary source confirming it or even implying it, and I have not seen anyone to agree with you that these images should be deleted. On the other hand, for the German and Swedish images, we have reliably sourced circumstantial evidence as well as an expert opinion, and this in my opinion does constitute significant doubt. Do you perhaps disagree? As to the professor Levin's opinion, I'm still waiting for her final reply, but I'll send the correspondence to the OTRS in the end in any case. I hope that the WMF will post its opinion, but this is uncertain. --Eleassar (t/p) 13:44, 17 October 2013 (UTC)
    We make decisions based on a combination of Commons policy (which we as a community should discuss) and the governing Laws (which we as a community should absolutely not try to invent, synthesise, propose, case-build or speculate on). As for whether people agree with me on the US case, well wikilegal says "We could not find any case law directly addressing the issue of the copyrightability of x-ray images. Courts would, however, likely analyze the copyrightability of x-ray images in the same way that they analyze the copyrightability of regular photographs". This leaves us trying to work out if the x-rays pass the creativity/originality test for US and that is by no means clear. I don't it is acceptable for WMF to leave us in that position, so they IMO must come up with guidelines that non-experts can follow when reviewing the eligibility of radiographic images. That major professional publishers of such material regard the images as copyrightable is for me reasonable doubt and definitely a warning against confidently declaring otherwise. The purpose of this RFC should be (a) to request legal clarification from WMF in terms that can be easily applied to a large number of images by non-experts and (b) to determine our policy on such images (new and existing) and (c) to document how uploaders can go about complying with law+policy. This latter point is something I've been investigating. The legal point is not our business and we are foolish to attempt it. Colin (talk) 14:23, 17 October 2013 (UTC)
    While I would be delighted if WMF would provide guidelines that non-experts could follow to decide which radiographic images can be hosted here, I will be very surprised if they do so (except perhaps for some simple and relatively uncommon cases). There are two problems here: first, whether the law in the US and elsewhere is capable of being to reduced to such straightforward guidelines, and second, whether its advisable for the WMF (or even allowed, for its lawyers) to provide us editors with such guidelines. They usually take the position that editors have to make their own judgements about the legal situation - no doubt for good reason. I'm happy to wait a while to see if the WMF will help, but if they can't or won't, maybe we should consider seeking help from someone else, e.g. Wikimedia chapters. --Avenue (talk) 11:14, 19 October 2013 (UTC)
    I agree that the wording from any lawyer would be vague and non-commital, reluctant to offer anything the appears to be legal advice. However, the WMF could professionally interpret this with advice to us. I also feel, as I've said before, the WMF are in the same boat as open access publishers, so they are both in a position to spend money finding an answer to the problem that is practical, pragmatic and balances legal risk against just giving up entirely. Colin (talk) 13:39, 19 October 2013 (UTC)
    I'm afraid in this project we do with the legal point and interpret the law all the time. --Eleassar (t/p) 18:52, 17 October 2013 (UTC)
    Interpreting the law is not the same thing as inventing it, which is what you have been doing all throughout this. Colin (talk) 07:38, 18 October 2013 (UTC)
    If the law states "processes analogous to photography are protected by the related rights" and several other sources state "X-ray imaging, CT, MRI are processes analogous to photography", what invention do you see in the synthesis "X-ray images, CT, MRI are protected by the related rights"? This is a simple logical deduction, not an invention. --Eleassar (t/p) 07:54, 18 October 2013 (UTC)
    The conclusion would be valid if and only if at least one of the "Several other sources" is legally valid and applicable to the relevant law. Has this been established?· · · Peter (Southwood) (talk): 08:01, 18 October 2013 (UTC)
    It is synthesis, Eleassar. You can't invent laws by applying logic to two other laws. Only a lawyer can do that. And they will have access to the whole picture which will include other relevant text which might make your assumptions invalid. For example, the law in the UK says you must drive on the left. But we all know there are numerous cases where driving on the other side is perfectly legal (e.g., overtaking). So knowledge about one aspect of UK law would lead someone to the wrong conclusion that cars can't drive ever on the other side of the road. Please read en:WP:SYNTH. There are good reasons we don't allow editors to do it on Wikipedia (because they get it wrong and can invent all sorts of nonsense) and those reasons are valid here too. I appreciate this is difficult for you to accept, Eleassar, but you are playing a game you have no right to play and the consequences are serious. On the one hand good-faith professionals have uploaded images to Commons that may be deleted based on invented laws. And on the other hand good-faith users and image-reusers may be exposed to litigation based on false assurances wrt invented laws. Please leave this to the professionals to work out. Colin (talk) 08:23, 18 October 2013 (UTC)
    The opinion and the synthesis of a professional lawyer (who consulted with her colleagues) has been posted below. --Eleassar (t/p) 08:31, 18 October 2013 (UTC)
    No, you've got snippets and potentially an out-of-context not-the-whole-story comment on one citation. Please, Eleassar will you wait for your lawyer to give us a complete comment on the whole story wrt Swedish law. You may have some aspects correct, but even a stopped clock is correct twice a day. Colin (talk) 09:51, 18 October 2013 (UTC)
    The Swedish law (Article 72) states "A picture that has been prepared by a process analogous to photography is also considered to be a photographic picture." We have the opinion of a Swedish copyright scholar who commented on the citation "... radiography and other radiation recording techniques (such as X-ray radiography, gamma radiography, autoradiography) - which, in general, involve the recording of subsurface features of objects - are processes analogous to photography. Here, the source of the recording of images is not light but radiation, the techniques, however, are analogous to the techniques of photography. At the other end of the spectrum, there are then such picture-generating processes about which there could be serious doubts whether they are still analogous to photography or whether they are already beyond that category. The so-called nuclear magnetic resonance technique by means of which pictures are taken through scanning molecules, for example, in a human body that has been placed in a very powerful magnetic field (under the effect of that field, molecules emit radio signals which are recorded as a picture) or the techniques used for electronic microscopes are in that outer border area, although on the basis of an extensive interpretation of the term, they can still be deemed to be processes analogous to photography." from a reliable source [45] with the words " We have the similar attitude in regard to ”photographic” picture that analogous techniques would be covered by the law." and stated before this "There is no good reason why they should no all be covered." (I'm still waiting for her "official" reply, but this is relevant in my opinion too). I see no reason why this would not be legally valid and applicable to the relevant law. --Eleassar (t/p) 08:14, 18 October 2013 (UTC)
    I've just received Mrs Levin's full answer, which I shall publish in a day or two (and archive the rest in our OTRS system). --Eleassar (t/p) 11:42, 18 October 2013 (UTC)
    Posted below. --Eleassar (t/p) 12:52, 19 October 2013 (UTC)
  22. Support per proposer and per Quadell, with whom I substantially agree. -- SERGIO (aka the Blackcat) 17:53, 19 October 2013 (UTC)
    Quadell has stated: "Unfortunately, we can never be 100% sure that a given image will not have unexpected copyright issues." Well, this is a true and sane argument in regard to radiological images from the United States (at least in my opinion, Colin may disagree). For Sweden, however, due to the above-cited sources and the letter by a renowned Swedish copyright expert we can be almost 100% sure that they do have "unexpected copyright issues". --Eleassar (t/p) 18:09, 19 October 2013 (UTC)
  23. Support per proposer's evidence that "The US copyright office takes the position that X-rays are not copyrightable". That is the best professional advice we have. Relying it is the only sensible move. So we should restore all radiographic images deleted on the assumption that they might be nonfree in the US. Swedish law is relevant only if we have evidence the work was made in Sweden. Eleassar, Stefan4 and followers evidently are unable to understand that the threshold of originality rules trump general rules, which is (is it not obvious to all) the reason the US copyright office takes the position that X-rays are not copyrightable, or that "The US copyright office takes the position that X-rays are not copyrightable" constitutes COM:EVIDENCE that something is in the public domain. The wording of the PRP is stupid (and I've tried, in vain to fix it, by replacing significant with a word/term that isn't subject to such incredibly wide interpretation.) That standard US medical X-rays, CAT scans and MRIs are not copyrightable is in line with current policy is beyond significant doubt (and for those who disagree, this RFC is sure to make it so.) (An additional argument is that it's obvious that if they had a copyright interest in their patients images, many dental and medical offices would refuse to give patients copies of their medical images based on that interest. As we all know, they are required to provide the images to patients upon request, which suggests there is no copyright interest. But really, it's superfluous.) --Elvey (talk) 21:03, 24 January 2014 (UTC)
    Yes, "we have evidence the work was made in Sweden". The DR has been closed as keep, because the uploader has provided the requested OTRS-confirmed permission by the copyright holder.[46] For the US, it has been my opinion throughout this discussion that the medical radiographic images are not copyrighted. --Eleassar (t/p) 09:46, 25 January 2014 (UTC)
    No, you don't understand, or you're making a shocking claim. I'm talking, of course, about the huge body of work that is the subject of this RFC. I don't give two damns about a scan or two, but I'll be pretty damn surprised if you claim to have evidence that the entire body of work that is the subject of this RFC was made in Sweden! --Elvey (talk) 03:07, 8 March 2014 (UTC)
    Thanks for the clarification of your opinion. If you haven't noticed, this entire RFC was started after my proposal to delete scans from Sweden as lacking evidence of permission. In any case, where's the disagreement actually? Radiographs made in Germany or Sweden are protected with the related rights, those made in the US are not (at least we have no evidence they would be). --Eleassar (t/p) 09:28, 8 March 2014 (UTC)
    I disagree, and you have produced no statue or court practice that gives "diagnostic X-rays" in particular protection in Sweden.--Elvey (talk) 23:00, 8 March 2014 (UTC)
    Who cares about your opinion in any case. As you can see here, administrators do care about opinions of notable lawyers. --Eleassar (t/p) 13:14, 9 March 2014 (UTC)
Oppose
  1. Oppose The resolution states: "All projects are expected to host only content which is under a Free Content License, or which is otherwise free as recognized by the 'Definition of Free Cultural Works' as referenced above." The Free Content Definition states: "In order to be considered free, a work must be covered by a Free Culture License, or its legal status must provide the same essential freedoms enumerated above." In the case of significant doubt, COM:PRP requires us to delete the image. This can't be changed just because of this RFC. There is significant doubt that in certain countries, like Sweden, X-ray images are free in the sense of this definition. --Eleassar (t/p) 12:17, 27 September 2013 (UTC)
  2. Oppose COM:PRP is clear: unless there is COM:EVIDENCE that something is in the public domain or licensed under a free licence, we can't host it. This is also one area where laws are different in different countries. --Stefan4 (talk) 13:08, 27 September 2013 (UTC)
  3. Oppose. Such a rfc is far too early and IMO rather irresponsible, as copyright issues are not a matter of convenience voting and as at this moment we only have evidence that x-ray (and similar) images are (copyright-like) protected in Germany, but are PD in the U.S. (at least I am told so). Based on this scarce information, applying COM:PRP logic would force us to treat x-rays as being protected in all countries except the U.S., which none of us wants. Before any further policy discussion we should first try to gather from the legal literature of the relevant countries more information about the copyright status of x-ray images, at least for those countries where the major share of existing x-ray images was created. --Túrelio (talk) 16:30, 27 September 2013 (UTC)
    The legal position in the US not clear and certainly not stated for CT scan, ultrasound, MRI or other imaging. The WikiLegal statement concludes that "The circumstances of each x-ray will have to be examined, and the amount of creativity and original input provided by the person taking the image will determine whether copyright protection exists." In other words, nobody knows and the only way to find out is to take it before a judge, possibly per image. Which is never going to happen because the supposed copyright owner doesn't see the issue here and has better things to do, like running a hospital. We've honestly spent enough time doing amateur lawyering. It is abundantly clear, from the research James and I have done with real content creators, authors, publishers and professional bodies, that the world does not get permission from the actual copyright owner (should there be any copyright to own) prior to publishing, and the actual copyright owner doesn't have a problem with that either. This isn't about "convenience voting". I don't much care for !voting at all in RFCs. What we need are practical solutions to help us retain this valuable resource that represents hundreds of hours of work donated by professionals and patients. The community has to find a solution, and possibly this will involve pressing the WMF to reformulate licensing policy. Colin (talk) 17:32, 27 September 2013 (UTC)
  4. Symbol oppose vote.svg Oppose Essentially per Stefan4 above. COM:PRP is pretty clear. Just because other publishers can get away with something doesn't mean we should do so too. Let me be clear; I do not think this means we have to delete every diagnostic image on our servers, and I don't buy into the fear, uncertainty and doubt rhetoric above. IANAL, but I believe many of these images would not qualify for copyright protection. In that case, our job is to document this clearly so that we and our reusers can use the images freely, without fear of violating someone's copyright. Trying to evade our responsibilities, under our policies and the law, does our reusers (and our projects) a disservice. --Avenue (talk) 09:33, 28 September 2013 (UTC)
Discussion
  • I have emailed and received replies from a number of professionals (as has James, who can give his own information). This includes the CEO of "The Society and College of Radiographers", permissions helpdesk manager at Elsevier, and picture editor at the BMJ, and a well-published medical author in the US. In the UK, unless the radiographer is self-employed, they have no rights to the image -- they are owned (whatever that may mean) by the employer (which I reckon is probably an NHS Trust). The patient has a right to a copy and "may do as they please" with that copy. Obviously this freedom to "do as they please" in an informal rather than legal one, but indicates the attitude. The medical authors take the same relaxed attitude -- permission from the radiographers/hospital just isn't sought as it isn't felt necessary, and there haven't ever been any problems. Once published in a traditional journal, the attitude seems to be the journal owns the copyright to the image. Quite how this could occur legally is unclear. The journals do claim such images are copyrightable (because the threshold of originality is very low, and they are much like photographs). However, the requirement to gain the "necessary permissions" rests solely with the authors of the papers. It is here that the convenience disconnect occurs, as the authors do not seek or have the "necessary permission" (they most certainly are not the copyright owners, unlike with any article text, tables or diagrams they create). The most I would say the publishers have is a gentlemen's agreement for permission to publish such images, but they have no legal rights to claim copyright for them (which remains with the NHS trust, say). Perhaps there's a confusion here between the article text (which the authors write for and give to the journal) and the images (which the authors didn't actually ever own). I have some email queries outstanding, but this is my understanding so far.
From our investigations, it appears most radiology images, whether self uploaded from patients or physicians or published in open-access journals, do not strictly have the legal paperwork necessary for us to claim with certainty that "the copyright owner has released the image under a free licence or to the public domain". Nor can we claim with absolute certainty there is no copyright owner. If we taken a dogmatic approach then we will be forced to delete nearly all such images that lack an OTRS from the hospital, including those already published in journals and textbooks. Neither the patient or physician should upload such images as "own work". So if we want to keep such images (and I think we very much do) then we need to consider what sort of licence and disclaimer/warning template we should put on the image.
Longer term, I wonder if we should ask the owners of such images to consider making some sort of public domain declaration for them. I can't see them having any commercial interest in them. In the UK the NHS trusts are (still for now) government owned and Tim Berners-Lee has been trying to get the government to open up data for the public to use freely. -- Colin (talk) 07:22, 27 September 2013 (UTC)
  • A comparison has been made with awkward Freedom of Panorama laws that we all wish didn't exist but we still delete images for. There is no comparison. See this article on FoP for example. FoP is an absolutely huge and lucrative legal problem that forces photographers and filmmakers to cough up loads of cash. Whereas radiology images are universally treated as though they were free to use (at least till the point at which a traditional journal publishes them). Colin (talk) 12:24, 27 September 2013 (UTC)
  • If there is no copyright, then there is no possibility for anyone to release the image under any licence as the concept of license doe not apply. An appropriate template indicating that the image is not copyrightable should suffice. If the uploaded image is a photograph or scan of the original it could be uploaded as PD, non-copyright subject, author would be 'not-applicable' A separate upload page would be ideal.· · · Peter (Southwood) (talk): 08:57, 27 September 2013 (UTC)
  • I get that the creative threshold is low, but the creative value of a medical xray, MRI, CT scan, etc. is exactly zero. Any ounce of creativity would be highly inappropriate as the image then could not be trusted for diagnostic value. The very definition of creativity is inconsistency.--Taylornate (talk) 16:19, 27 September 2013 (UTC)
  • With respect to El's comment "This can't be changed just because of this RFC." Yes it can. This movement works by consensus. And consensus takes precedence over individual's peoples interpretation of the law. James Heilman, MD (talk) 16:31, 27 September 2013 (UTC)
The only consensus that is evident to me currently is that there is more or less significant doubt the nominated image is in accordance with the established policies and the Wikimedia resolution. Feel welcome to gain consensus to change the policy and the resolution, but this requires the involvement of more than just ten editors. --Eleassar (t/p) 07:06, 28 September 2013 (UTC)
  • I have moved the following comment down from the top of the Oppose section above. Colin, please accept that people with different opinions from yours have the right to explain their views as they see fit. We don't have to jump through whatever rhetorical hoops you set up. --Avenue (talk) 09:15, 28 September 2013 (UTC)
    • I did say "please". I strongly wish this RFC had never had a voting section. Things don't work well then because people write brief unthinking unhelpful opposes. It is all well and good writing oppose but if you don't offer an alternative then you aren't really helping. Eleassar has yet to explain why any of our other thousands of radiography images should not also be deleted by the principles he is opposing on. There's a lot of dogmatism going on here without consideration of the consequences. Colin (talk) 10:03, 28 September 2013 (UTC)
      • Yes, you did. :-) I don't object at all to your request; I do object to where it was placed. I agree that this RfC would probably have worked better if it had run without any voting for a while. --Avenue (talk) 14:15, 28 September 2013 (UTC)
  • Comment Those opposing here should offer a constructive alternative to the Nuclear option below. Please explain how our many thousands of other x-rays and CT scans are except from the policy you quote. -- Colin (talk) 16:13, 27 September 2013 (UTC)

(2) Other options[edit]

Nuclear[edit]

Delete all radiology images post 1923, other than those with OTRS tickets from the copyright owner (hospital or self-employed radiographer as appropriate). This includes all images submitted by patients, by their physician or by a radiographer who is not self-employed. This also includes all radiology images from open-sources journals as they lack this permission too. Per precautionary principle no country in the world has clear legal documents exempting such images from copyright. They are similar to photographs and the threshold of originality and creativity is very low (extremely low in some countries). In addition, a few countries require no such originality/creativity test for "photograph and similar" images to have protection under lesser laws than full copyright. It is vitally important that Commons rids itself of this highly educational material than to work on a solution that might keep them. For example, the following featured pictures cause this project great harm:

In addition, some Commons users should just be blocked. The senior physician in radiology, User:Hellerhoff, for example, has submitted thousands of such images. None of them contain OTRS tickets from his employer. Colin (talk) 14:17, 27 September 2013 (UTC)

Hellerhoff's uploads are clearly tagged as "own work". As previously pointed out, there is neither a transfer of copyright by default nor the concept of works for hire (except for Software) neither in German nor in Swedish copyright law. We can therefore assume that the Radiographer also owns the copyright as he is the one who decided when to take the "photo" and how to take it. -- Rillke(q?) 08:21, 28 September 2013 (UTC)
Which law says that the radiographer owns copyright? 92.22.94.214 08:35, 28 September 2013 (UTC) (Axl)
The one who decides how to take the x-ray-picture and the one who presses the button are the "Lichtbildner" (German), "[the one] who has prepared a photographic picture" (Sweden). This does neither match for the hospital, the patient nor the computer programmer of the software (made the software before the pictures are taken). Yes, there are other options but if Hellerhoff said it's entirely own work, so I trust him unless there is evidence of the opposite. -- Rillke(q?) 09:33, 28 September 2013 (UTC)
I have let Hellerhoff know of this discussion, but from his wikipedia page he is "senior physician in radiology" -- he is not a radiographer but a radiologist. The former takes the picture ("presses the button"), the later makes a medical diagnosis from the image obtained. Huge difference as far as any copyright is concerned. I have so far not found any radiographers who are uploading images to Commons. I appreciate German law may be different but it is worth noting that in the UK, for example, I got the following from the CEO of the Society of Radiographers "Radiographers (unless they are self employed) do not have any rights to the images they produce. They are owned by the employer" I would suggest that the "own work" tag on these images is not technically correct. But Hellerhoff might be able to correct us on this. -- Colin (talk) 09:58, 28 September 2013 (UTC)
Actually the German situation makes it worse for us. Because Hellerhoff could potentially get an OTRS ticket from his hospital releasing their copyright images under a free licence. But if the images are actually the copyright of the individual radiographers who took them, then he'd have to find out who took each photograph and ask them personally. I have no idea how many individuals that might be, and how many he could contact, or even if there are any records saying who took the picture. If there are no records saying who took the picture, then this would possibly make them orphaned works. Which we'd need to delete. Not a happy outcome at all, as his uploads much represent hundreds of hours of work for the community and they are widely used on Wikipedia. Colin (talk) 10:17, 28 September 2013 (UTC)
The document from Stockholm, "Act on Copyright in Literary and Artistic Works" explicitly refers to literary and artistic works. The scope is further clarified by listing works that are included. X-rays are not mentioned anywhere. (Neither are CT scans, ultrasound scans, etc.) Conflation of such medical images with "photographic pictures" is entirely your (Rillke's) own assumption.
The German web page describes "photographs and products that are manufactured similarly to light images". Again, your inclusion of x-rays in this category is pure supposition. 92.22.93.112 12:50, 28 September 2013 (UTC) (Axl)
For Axl, I am going to repeat what I cited at this deletion request: sektion-bildgebende-verfahren claims that is is the case and they claim to be lawyers. (BTW, did you notice my Symbol keep vote.svg Keep vote in the DR!?) -- Rillke(q?) 20:41, 28 September 2013 (UTC)
Support
Oppose
  1. Symbol oppose vote.svg Oppose Maybe I'm treating the above proposal more seriously than it deserves, but no, I don't agree we need to delete all non-OTRSed post-1923 radiological images. At least some seem likely to be uncopyrightable. --Avenue (talk) 10:06, 28 September 2013 (UTC)
Which ones? James Heilman, MD (talk) 01:35, 30 September 2013 (UTC)
That's already being discussed in two other places on this page (#Follow_the_law.2C_and_our_policies and #discussion). I don't think it's efficient to cover it again here. --Avenue (talk) 03:30, 30 September 2013 (UTC)
  1. Symbol oppose vote.svg Oppose of course. If, at all this should be evaluated on a case-by-case basis. -- Rillke(q?) 20:41, 28 September 2013 (UTC)
  2. Symbol oppose vote.svg Oppose, per Rillke. --Eleassar (t/p) 22:40, 29 September 2013 (UTC)
  3. Symbol oppose vote.svg Oppose This is not a serious proposal, is it? If it is, we should consider blocking the editor who proposed it. Such an attitude (delete thousands of hours of work of volunteers, bock them) is clearly dangerous for this project. If s/he thinks another editor should be blocked, let's see how they like the tables turned. --Piotr Konieczny aka Prokonsul Piotrus Talk 06:03, 6 October 2013 (UTC)
Discussion

Maybe we need a "Take Back Commons" drive. Where those who think consensus does not apply to them get shown the door. James Heilman, MD (talk) 16:35, 27 September 2013 (UTC)

It seems that you are one of these. Our current policies and practices have been established through consensus and you think you can override them just by this RfC. See above. --Eleassar (t/p) 07:08, 28 September 2013 (UTC)
The discussion in this paragraph will likely lead to hostility. Would both commenters agree with removal? -- 08:21, 28 September 2013 (UTC)

I am surprised that Eleassar, Stefan4 and Turelio aren't supporting this proposal. 92.22.94.214 08:32, 28 September 2013 (UTC) (Axl)

"" If, at all this should be evaluated on a case-by-case basis. ""
—Rillke

Let's open a Deletion assessment for each radiological image. 92.18.9.58 18:28, 30 September 2013 (UTC) (Axl)

The article Laser Bones: Copyright Issues Raised by the Use of Information Technology in Archaeology (Alberts Carson, Cindy. Harvard Journal of Law & Technology. Volume 10, Number 2, Winter 1997.), already mentioned by Avenue above, on pages 296-297 clearly demonstrates the nuclear option is nonsense. It states that medical images are not creative enough to be copyrightable in the United States. It does not discuss the fact that in some countries (like Germany, Sweden), "images analogous to photographs" do not have to be creative to be protected by the related rights, however it mentions the situation in the United Kingdom, where the similar probably applies. --Eleassar (t/p) 20:13, 7 October 2013 (UTC)
Yet more amateur lawyering and overconfidence. On the basis of an opinion piece on archaeology, Eleassar is confident that the WMF lawyers will decree medical images non-copyrightable in both the US and also UK. I await the flood of new radiography images cheerfully scraped from US and UK medical journals and uploaded to fill the gaps left by the loss of images from the rest of the civilised world. Perhaps the WMF will share your confidence to the extent that they will offer to support uploaders in court as they have with PD Art?
The author of that cited article is arguing a case where they believe copyright claims made shouldn't actually have been allowed or conceded. Like a journalist with an opinion to promote they cherry-pick their sources and justify their statements round the case they wish to present: that copyright was not applicable or should not be applicable for such image scans. They conclude that the trend towards expansion of the scope of copyright is harmful in an information society. While I may agree with that sentiment, it doesn't stop this from being a one-sided argument. Take their description of the creativity of an MRI scan: "In medical imaging, such as an MRI, the operator only decides whether or not to scan, which view to scan, and makes very limited adjustments of the intensity at which to scan." Now I suspect the author knows very little about how an MRI or CT scan is configured if they think the only adjustment is "intensity". Even so, that argument fails the test of comparison with a camera in automatic mode, which can still generate copyright images. I am amused at their plea to consider such operator's work uncreative because it very much needs to be uncreative -- the optimal settings aren't artistic but are there to get the best diagnostic image. Their rational sounds remarkably similar to James' op-ed on Wikipedia: ""To find otherwise would be to give a patient or a doctor rights in an electrocardiogram ("EKG") print-out, or an automobile owner or mechanic rights in the results of an auto-pollutant emissions test. Copyright protection should not apply when the source and the form of the data are not within the "author's" artistic or creative control, nor should copyright protection obtain when creativity is not exercised.". This analogy, like most of the analogies used in this whole debate, is easily dismissed: one cannot create copyright law through analogy. Note the frequent use of the word "should" throughout the article. This doesn't represent reality but the wishes of the author. Really, this article is interesting but about as authoritative on actual copyright law as a piece in the Daily Mail is authoritative on the causes of cancer. The nuclear option, far from being nonsense, is still very much on the cards. -- Colin (talk) 22:09, 7 October 2013 (UTC)
Can you PLEASE stop amateur lawyering? It is a peer-reviewed expert article. Find reliable secondary sources to demonstrate the article is incorrect. No one is interested in your opinion essays. I really doubt the Wikimedia Foundation will take down all medical images on their basis, without any other significant doubt. --Eleassar (t/p) 22:28, 7 October 2013 (UTC)
Eleassar, you've be surprised how many POV pushers at medical articles make the same mistake you have. "It is a peer-reviewed expert article." If I had a penny for everyone who misunderstands that to mean it must be God's own Truth. Lots of kinds of articles appear in so-called "peer-reviewed journals" and this one is an opinion piece, nothing more. Tomorrow, read the article carefully from front to back. Every time you read the word "should" rather than "is", slap yourself with a wet trout. Then come back here and retract your "nuclear option is nonsense" overconfidence. Colin (talk) 22:43, 7 October 2013 (UTC)
It is an opinion of a legal scholar (i.e. an expert), and it is still peer-reviewed. You have yet to demonstrate with a reliable secondary source that any of the factual claims it makes is incorrect. In any way, I think that you should propose at Commons:Administrators noticeboard that we delete all diagnostic images on the basis of your unfounded fears. And don't forget to write them to block James. Why don't you get some sleep? --Eleassar (t/p) 05:27, 8 October 2013 (UTC)

Wikipedia hosted[edit]

Host them locally on Wikipedia. Better than nothing. · · · Peter (Southwood) (talk): 15:14, 27 September 2013 (UTC)

Support
Oppose
Discussion

See Wikimedia Licensing Policy. You'd have to formulate an "Exemption Doctrine Policy" to allow this. Wikipedia's "Non-free content" policy wouldn't allow these images. Colin (talk) 16:08, 27 September 2013 (UTC)

That would apply if the material is non-free. Has this been established? · · · Peter (Southwood) (talk): 07:38, 28 September 2013 (UTC)
No it wouldn't; the material is free. But this is academic, as the middle road option is snowballing.--Elvey (talk) 21:06, 24 January 2014 (UTC)

Fork[edit]

Start an organisation to host electronic media which works on the principle that something is not illegal unless there can be shown to be a law against it. · · · Peter (Southwood) (talk): 15:14, 27 September 2013 (UTC)

Support
  1. Support. This is a reasonable suggestion. If the Wikimedia Commons people actively delete x-rays, the x-rays should be pre-emptively moved (copied) to another site. Perhaps something along the lines of "Radiographmedia"? (There is already "Radiopaedia".) Each language version of Wikipedia could then decide whether to allow use of images from the new site. The Wikimedia Commons tagline could be changed to "a database of 18,862,693 freely usable non-radiological media files to which anyone can contribute". 92.22.86.39 11:33, 6 October 2013 (UTC) (Axl)
  2. support if not 1 then this. Slowking4†@1₭ 12:18, 10 October 2013 (UTC)
Oppose
Discussion
I imagine an organization would not need to be started. We might talk to the internet archive and see if they would be willing to host. -- UseTheCommandLine (talk) 21:18, 28 September 2013 (UTC)
The next step would be to get consensus on En-Wikipedia to move all medical images there. James Heilman, MD (talk) 01:20, 30 September 2013 (UTC)
Well, that's great for enwiki, but what about all the other language editions of Wikipedia? It's better to keep the images here if we can (e.g. for US-sourced images). --Avenue (talk) 02:55, 30 September 2013 (UTC)
If the consensus at Commons is to delete all diagnostic images than yes we at EN:WPMED need to look at going elsewhere. Images would be hosted locally at each individual Wiki that is willing to have them. It sounds like the German and Swedish versions are against the images but it would likely be language by language consensus. James Heilman, MD (talk) 04:30, 30 September 2013 (UTC)
just migrate them to flickr, with an NC, and then upload to en.wikipedia on an as needed basis. let german; swedish wikipedia suffer. Slowking4†@1₭ 12:14, 10 October 2013 (UTC)

Create law[edit]

Start a whole bunch of international class-action suits against publishers who have used x-rays without specifying the copyright owner, release etc, lose, and voila. legal precedent. · · · Peter (Southwood) (talk): 15:24, 27 September 2013 (UTC)

Support
Oppose
Discussion

You can't do that. Only the actual copyright owner can sue for infringement. Colin (talk) 16:08, 27 September 2013 (UTC)

Catch 22! You can't get there from here... · · · Peter (Southwood) (talk): 16:37, 27 September 2013 (UTC)
And since no one knows who the copyright holders are no one can start a lawsuit. Nice. I could always start uploading images from Elsevier and then send them a heads up. I am not sure how copyright changes after the images are published in a textbook. James Heilman, MD (talk) 16:50, 27 September 2013 (UTC)
Not a wise move. Colin (talk) 19:00, 27 September 2013 (UTC)
Or is it? I actually think that getting some rulings out there could be quite useful in dealing with copyright paranoia, both here and in the wider world. --Piotr Konieczny aka Prokonsul Piotrus Talk 06:06, 6 October 2013 (UTC)
Actually, only someone who claims to hold the copyright can file a lawsuit. If money were no issue, I suspect that we could find a couple of people (patient, ordering physician, radiographer—hospitals probably wouldn't choose to be involved, but a med school might) who would be willing to let a handful of lawyers fight it out in court. WhatamIdoing (talk) 00:44, 8 October 2013 (UTC)

Follow the law, and our policies[edit]

Host only diagnostic images that are free of copyright in the relevant jurisdictions (i.e. in the US and the source country), or that are freely licensed by the copyright holder. Other images can perhaps be hosted on other projects (e.g. English Wikipedia if free only in the US, or any project with an EDP that allows it), but not Commons.

Support
  • Symbol support vote.svg Support as proposer. I think laws that erect copyright over such images make little sense, but that doesn't mean we can ignore them. --Avenue (talk) 09:08, 28 September 2013 (UTC)
  • Symbol support vote.svg Support, per the discussion below. --Eleassar (t/p) 22:38, 29 September 2013 (UTC)
  • Symbol support vote.svg Support, though before starting a deletion-spree, we should try to assess the copyright status for the countries where the major share of existing x-ray images were created. --Túrelio (talk) 08:36, 30 September 2013 (UTC)
Oppose
  • oppose follow the case law. Slowking4†@1₭ 12:19, 10 October 2013 (UTC)
  • 'Oppose this is the same as the nuclear solution. We should reflect what is done in the wider world and not take up inventing laws, especially laws that negatively effect our mission. James Heilman, MD (talk) 05:00, 11 October 2013 (UTC)
Discussion

Can you cite any reliable sources that say all (or even some classes of) x-rays (and other such as CT scan, MRI, ultrasound) are definitely free of copyright in the US. Or indeed in any country. For example, I asked the Permissions Helpdesk at Elsevier (one of the biggest medical publishers in the world) and their reply (from their US office) noted the US Supreme Court statement "the requisite level of creativity is extremely low; even a slight amount will suffice." The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble, or obvious" it might be" concluding that they treat such images as copyrightable. I got a similar response from the picture editor of the BMJ, one of the foremost medical journals in the world. The current Wikilegal/Copyright of X-Ray Images position is they don't know and a case-by-case legal analysis would be required -- which of course is quite unsuitable for us. However, James and I have made a number of enquiries and have yet to find an example of where the supposed copyright holder has ever been asked. Since hospitals don't tent do upload images to Commons, none of our current uploads by patients or physicians qualify for "own work" status yet I haven't found any with OTRS tickets. No current EDP would allow such images. So your proposal is not dissimilar to the nuclear option imo. Colin (talk) 09:51, 28 September 2013 (UTC)

I think one is cited above already: [47]. Quote: "Radiographs generally seek to represent the underlying subject matter as closely as possible, without any added creativity expression, and as such are not protected by copyright." Can you cite any reliable sources describing a single specific X-ray as creative enough to qualify for copyright protection in the US? --Avenue (talk) 10:13, 28 September 2013 (UTC)
Can I have a reliable source that would pass WP:V on Wikipedia. That's a wiki. It says "HIS CASEBOOK IS CURRENTLY A WORK IN PROGRESS. DO NOT ACCEPT THE SUGGESTIONS HERE AS FINAL ANSWERS. None of the information presented below should be considered legal advice in any way. If you are in need of counseling on copyright or any other form of law, please seek the advice of a licensed attorney.". I think ultimately, we'd need a Wikilegal statement that they agree x-rays are not copyrightable in the US and are prepared to go to court to defend that, much like we have with PD-Art. Remember that your position that they are copyright-free in the US allows you to upload images created in the US and published in US medical journals. We could scrape the medical journals for a huge number of images. Care to take on Elsevier in court? Do you feel lucky? Colin (talk) 10:24, 28 September 2013 (UTC)
In a 1997 issue of the Harvard Journal of Law & Technology, an article titled Laser bones: Copyright issues raised by the use of information technology in archaeology briefly discusses two CT scans (on pages 298-299), concluding that "In neither case was protectable authorial creativity exercised." The article doesn't make sweeping conclusions about all CT scans, but I think the principles there could apply quite widely. --Avenue (talk) 12:15, 28 September 2013 (UTC)
But do you not agree that for us to take the confident position that our x-rays and other radiographic images are not copyright if created in the US and published in the US we should have Wikilegal say so? Because it follows that if Commons community comes to that conclusion, someone somewhere will write a bot to scrape US-created radiographic images from professional publisher's websites just as people do for museum images. And that could end very badly if we are wrong. The Precautionary Principle does not allow us to have doubts over this. Colin (talk) 13:05, 28 September 2013 (UTC)
Here you have misinterpreted the precautionary principle. What "significant doubt" do we have that these images are copyrighted in the United States if they're described as uncopyrightable in the mentioned peer-reviewed article? --Eleassar (t/p) 20:43, 7 October 2013 (UTC)
That could end badly, at least for the bot operator. I wouldn't advise anyone to do that without strong support from the WMF (similar to the Bridgeman/PD-Art situation). It wouldn't matter whether you were right if you can't afford to go to court. Elsevier's response seems self-serving, and may not reflect any likelihood that they would pursue the matter, but it doesn't seem wise for a private individual to risk it.
On the other hand, I would be comfortable (assuming local consensus, but without WMF backing) for US patients to upload most diagnostic images of themselves without their physician's/hospital's/x-ray tech's permission, or for US physicians to upload images with patient consent but without the x-ray tech's okay.
So I see this proposal as potentially quite different from your "nuclear option", at least for US images. --Avenue (talk) 14:08, 28 September 2013 (UTC)
I agree it suits publishers rather nicely that everyone shares such images as though they are free until the point at which they publish them then mysteriously they belong to the publisher. I feel copyright law is being misapplied here and the law won't get clarified because there is no pressing reason to change it. Your cowards-law option of claiming copyright-free on unpublished images fails the Precautionary Principle on the "we'll get away with it" or "nobody cares" aspect. I'm not averse to reconsidering the PP here. Two problems, though:
1. Does this US-made x-rays are copyright free position allow such images to be used on Commons, or do they have to be hosted on Wikipedia in-case they are not copyright-free in another country.
2. It is still nuclear for the rest of the world. And many of our radiography images come from Europe. Colin (talk) 15:41, 28 September 2013 (UTC)
I would have the same advice for someone thinking of going on a bot-rampage with PD-Art images (although the law there seems more settled). You're poking a stick in the eye of someone with the resources to sue, so you should have deep enough pockets to survive a lawsuit, or the firm backing of someone who does. (Like it or not, there is effectively one law for the rich, and another for the poor.) The WMF has provided support with PD-Art images; I feel they should do the same here - or at least give a very clear explanation why not. (And not just from a legal standpoint, but from a moral one.) It sounds like there are some very dodgy publishing practices in this area.
On (1), Commons happily hosts free-only-in-the-US media if its source country is the US. For (2), I don't know about the entire rest of the world, but the law in Germany and some other European countries does seem potentially problematic. However, Rillke makes a good point (in Commons:Deletion requests/File:Computed tomography of human brain - large.png) that we allow US law to trump Lichtbildwerk restrictions for PD-Art images. He argues we should do the same here. And you point out there that the Swedish restrictions are not copyright, but "neighbouring rights", so perhaps there is wiggle room there. So I'm beginning to think my proposal above is probably a bit too simplistic black and white. --Avenue (talk) 02:15, 29 September 2013 (UTC)
The PD-art tag reads: "This work has been identified as being free of known restrictions under copyright law, including all related and neighboring rights." The position of the WMF is the following: "WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain."[48] X-ray images (including CT images) are reproductions of 3D-objects and are evidently protected by the related rights in Germany and Sweden,[49][50][51] and no such claim has been made by the WMF for them. Unless the WMF officially declares that also these images should be considered free, we should not keep them. --Eleassar (t/p) 22:38, 29 September 2013 (UTC)

What images would be "free of copyright in the relevant jurisdictions (i.e. in the US and the source country), or freely licensed by the copyright holder"? The only ones that everyone can agree on it seems are those from US military hospitals. For deletion would be all other diagnostic images including: from all countries other than the US, from all other hospitals other than military, from all physicians and patients other than military, from all open access publications, from all other US governmental websites. Now are ECGs going to be included in the mass deletions? I arranged the release of 3000 of these here. They of course are sort of like pictures. And could possibly belong to the ECG tech. It sounds like the precautionary principle likely requires their elimination too. James Heilman, MD (talk) 04:40, 30 September 2013 (UTC)

The PD-Sweden-photo is still valid. Photographic pictures taken before 1969 are in the public domain in Sweden. Edaen (talk) 05:35, 30 September 2013 (UTC)
We can also host any image if the uploader gets the copyright holder to license it freely, or it's already been so licensed. This shouldn't be a foreign concept to anyone here.
James, aren't you being a bit inconsistent here? You're bemoaning how the uncertainty over these images' US copyright status will lead Commons to delete almost all of them, but in the #Fork section above you're saying you'll then move them all to enwiki. Won't enwiki also have to delete them all, if that's true? It has to respect US copyright law too. --Avenue (talk) 06:26, 30 September 2013 (UTC)
Different groups have different interpretations of the law. You still seem to be assuming that your interpretation is right. En Wiki may have a different interpretation and the community there may be happy to host them. You are assuming that the law on this point is known or knowable. If it isn't then it is a judgement call. James Heilman, MD (talk) 16:09, 30 September 2013 (UTC)
That's a fair point. --Avenue (talk) 22:06, 30 September 2013 (UTC)
Going back to James' question about ECGs, if they are similar to File:ECG000012 (CardioNetworks ECGpedia).jpg, then they are essentially graphs of data. There would be no creativity involved in their creation, and so they wouldn't be under copyright in the US. They are not photographs, so they shouldn't be protected under European Lichtbildwerke laws. (Well, the images we have are often scans or photographic replicas of the original graph, but I think a PD-Art-style argument would apply to them. Not to File:Cases (CardioNetworks ECGpedia).jpg, but that's atypical.) Maybe database rights could apply, but we don't usually worry about that on Commons. So I think these are probably okay, even without the CC-BY-SA license you negotiated. (But of course IANAL.) Category:Media from CardioNetworks ECGpedia also includes numerous diagrams, photos, etc, but the CC-BY-SA license should cover them. --Avenue (talk) 22:57, 30 September 2013 (UTC)
However CT scans are just 2D or 3D images produced by a bunch of data stored in matrices. James Heilman, MD (talk) 04:00, 1 October 2013 (UTC)

"Follow the law and our policies" does not appear to be any different than the "nuclear option". The law is not clear and we have the precautionary principle. We combine these two and it results in the deletion of all diagnostic images. The thing that makes one's head spin however is that two of the people who support this opposed the nuclear option. James Heilman, MD (talk) 17:59, 30 September 2013 (UTC)

We should delete only those X-ray etc. images, where there is significant doubt that they are free, like [52][53] for Germany and Sweden, and only in the case they are not already out of copyright and have not been freely licensed by the copyright holder. --Eleassar (t/p) 19:46, 30 September 2013 (UTC)
Sure so what does that mean in reality? You are proposing we delete all "diagnostic images" from Germany and Sweden. But keep the USA, Canada, Australian and UK ones? What about India? What about cases where the country of origin is not known / undertermined? You assume that the copyright holder is the X-ray tech. Others may say it is the hospital. And others the order physician. Do we say it is all of these and require OTRS permission from each? Or do we get to decide who the copyright holder is for Commons uploading, with this potentially being different from who the rest of the world consider the owner? James Heilman, MD (talk) 20:12, 30 September 2013 (UTC)
It isn't all such images from Germany and Sweden. Images that are freely licensed by the copyright holder are fine, no matter where they're from.
The UK has a low threshold of originality, so I wouldn't count on x-rays etc being unprotected there (or in Australia or NZ).
The copyright holder would depend on applicable law (e.g. work-for-hire doctrines) and on the facts surrounding each image (e.g. how much influence did the ordering physician exert on precisely how the image was taken). Sometimes it will be hard to know for sure. But getting permission from all the relevant people is part of the uploader's task, just as it is (at least in theory) for an author getting permission for illustrations in an article they wish to publish in a traditional journal. --Avenue (talk) 22:06, 30 September 2013 (UTC)
If we are going to go down this route we are going to need specify who "all the relevant people" are for different countries and types of image. If we wish to continue on similar to the rest of the publishing industry we can just assume that the uploader knows who "all the relevant people" are. The second option would allow us to stop all the amateur lawyering. James Heilman, MD (talk) 03:58, 1 October 2013 (UTC)
We should do this on a country by country basis: delete only those images where we have evidence that they may be unfree and keep the rest. I hope some Swedish-speaking user (e.g. Edaen) will provide a court case or some additional material to further clarify the issue about who is the copyright holder. Otherwise, unless we have strong evidence to the contrary (an opinion of a respected copyright expert), we should follow the clauses written in the copyright act. --Eleassar (t/p) 20:32, 30 September 2013 (UTC)
Sure I can get the position of a respect expert from Sweden. How would we verify him though? He is 200 km from Stockholm. I there anyone from Commons who is able to go meet him in person at at Universitetssjukhuset Orebro? I was speaking with Peter Gøtzsche, Director of the Nordic Cochrane Centre last week and could get his opinion if that would count for anything. James Heilman, MD (talk) 20:44, 30 September 2013 (UTC)
Why would his opinion not just be posted (in English and Swedish) at some relevant web page? Otherwise, he may also send it to the OTRS. --Eleassar (t/p) 21:26, 30 September 2013 (UTC)
Here is a summary of Swedish case-law for the years 1977–2002. There are some cases mentioned in section 2.4.4 "Fotobild". The text is condensed and abstract and largly just points to cases. Various searches here didn't give anything that I am able to say is relevant. Edaen (talk) 21:05, 30 September 2013 (UTC)
Thank you. This article seems to be relevant too, though I've not read it yet. The text states: "The Institute for Intellectual Property Law and Market Law (IFIM) is a part of the Faculty of Law at the University of Stockholm. The aim of the institute is to advance scientific research in the study of intellectual property law..." I will send them an enquiry. --Eleassar (t/p) 21:27, 30 September 2013 (UTC)

Restore all radiographic images deleted on the assumption that they might be nonfree[edit]

Support
  • Symbol support vote.svg Support We should err on the side of the readers. If there someday is a law requiring it, the images can be re-deleted. EllenCT (talk) 00:56, 7 October 2013 (UTC)
  • Symbol support vote.svg Support Would support restoring all the images that are not copy and pasted from a commercially published source. James Heilman, MD (talk) 23:45, 7 October 2013 (UTC)
  1. Support per Heilman / Middle road. So we should restore all radiographic images deleted on the assumption that they might be non free in the US.--Elvey (talk) 21:03, 24 January 2014 (UTC)
  • Symbol support vote.svg Support When the only "creativity" involved is conducted by a machine, no copyright is owned by a human. The situation is rather comparable to {{PD-animal}}. Nyttend (talk) 19:48, 9 August 2014 (UTC)
Oppose
Discussion
  • Do you really want to undelete all radiographic images that were "deleted on the assumption that they might be nonfree", even if they were never in use (i.e. they never had any readers)? Are you at all concerned about misleading potential reusers by claiming that the images are free when they might be copyvios?
Yes, I do, because all radiographic images likely to have been uploaded are also likely to have been imaged with the specific goal of eliminating any creative expression in order to portray their subject as accurately as possible. I am not concerned about misleading possible reusers on the assumption that someone may pass a law forbidding them someday. EllenCT (talk) 06:11, 7 October 2013 (UTC)
That all makes sense to me for US images. Hopefully the legal situation there can be clarified further, but it certainly sounds like they generally aren't protected there. But for many other countries, the laws have already been passed - we just aren't sure what they mean for these images (except in Germany, and perhaps a few others). --Avenue (talk) 06:47, 7 October 2013 (UTC)
So in the case of Sweden, where the law seems unambiguous, has there ever been an actual case where someone objected to the use of a radiographic image? To bring a case, one must have standing, and to have standing under copyright one must show ownership of rights and harm. Who is able to show ownership of the rights of images made in a Swedish hospital? Who can be harmed when such images are shared and used? I would not be persuaded by even very specific laws establishing rights in radiographic images unless those questions can both be answered. EllenCT (talk) 23:38, 7 October 2013 (UTC)
This is an interesting point, though without an actual lawyer stating it I'm rather nervous of it. But we should explore the idea with WMF. Perhaps it can be shown certain images theoretically fall under copyright or related-rights, but if there is no harm (nothing to sue for), then could a lawyer argue that there is no risk to their use and therefore no liability to using them? This would allow us to hold previously unpublished images uploaded by patients and physicians without having to establish the rightsholder (who is ignorant that they even hold the rights) has given permission. Colin (talk) 07:16, 8 October 2013 (UTC)
We don't delete images because we would be afraid there is a risk that someone may get sued, but because we are a repository of free media files, about which no significant doubt exists. In addition, who can guarantee that some day someone will not come who will sue a reuser or an uploader of a file from Commons for having used his radiographic image without his permission? --Eleassar (t/p) 07:27, 8 October 2013 (UTC)
If you think "no significant doubt exists" about our images, you have far more confidence than you should. There are all sorts of risks involved in a repository contributed to by anonymous users. We accept some of those risks otherwise we might as well give up. Please open your mind to the idea that theoretical copyright concerns may not be the issue you think they are and that we live in a real world with real people who find real practical solutions to real problems. This is not a game. Start thinking of solutions to this problem rather than being the problem. Colin (talk) 09:05, 8 October 2013 (UTC)
Yes, there is some doubt, but we're trying to minimise it. If we just give up and accept that we host non-free images, we should remove that "free" from the description of the project. In cases where we can demonstrate a significant doubt, we delete images. It is not a lawyering game, exactly, so stop pretending it is. Rather consider that 1) we build a project of files that are to the best of our knowledge free; and 2) some day someone may get sued because of your stubborness. --Eleassar (t/p) 09:35, 8 October 2013 (UTC)
Eleassar, in the real world, everything is a compromise. You can't have X without losing Y. Or you can A and B but not C. And so on. Commons has to find a balance. If your goal is to minimise risk at all costs, then you will delete much of the repository. Eleassar, it is you who is being stubborn here and failing to appreciate the wider picture, the practicalities and the overall goals of the site. Actually Commons does host non-free images and has found pragmatic solutions before: Commons:Grandfathered old files, COM:GRAFFITI, Commons:URAA-restored copyrights. -- Colin (talk) 12:30, 8 October 2013 (UTC)
I am well aware of these solutions, but don't see to which of them we could compare this situation, though. Grandfathered old files concerns itself with the requests for permission, not the copyright in itself. The precautionary principle still applies. Graffiti states that images of graffiti are free in those countries where there is an adequate freedom of panorama; if there is significant doubt they are free, they will be deleted too.[54][55][56] Also, in contrast to medical images, graffiti are illegal. I'm not sure what about the URAA seems relevant to you.--Eleassar (t/p) 12:37, 8 October 2013 (UTC)
Eleassar, it is tiring to have to spell things out to someone who is determined to be disagreeable rather than work to find a solution. These are all pragmatic solutions to a problem. In none of them has Commons decided to choose the hard line. Colin (talk) 18:49, 8 October 2013 (UTC)
I'm sorry, but I don't want a far-fetched solution that violates the basic principles of the project. In none of the cases you have mentioned has the principle of "no significant doubt" been violated. The GOF directly states that the precautionary principle is still applied. The graffiti have been deleted, if non-free, and these are illegal in any case. Also the files that violate the URAA-restored copyrights have eventually been deleted. --Eleassar (t/p) 18:57, 8 October 2013 (UTC)

┌─────────────────────────────────┘
I believe each of those situations violated (or still violates) the plain wording of COM:PRP. URAA restorations are perhaps the most analogous to U.S.-sourced x-rays etc. We allowed many of those images to remain on Commons for a long time while the legal situation was perhaps not crystal clear, but still while a federal appeals court had ruled that their copyright had been restored. In other words, there was not only significant doubt about them being free; there were strong grounds for thinking they were not. I think the legal situation for x-rays etc in the U.S. is considerably murkier, so there is at least more doubt here, and probably stronger ground for thinking them free. Finally, even when the Supreme Court settled the legal situation in w:Golan v. Holder, we did not delete the files en masse but reviewed them individually. (See Commons:URAA-restored copyrights.)

I think there are probably good arguments for incorporating a limited exception to COM:PRP for U.S. sourced x-rays and other radiological images into our policies, along somewhat similar lines to the one we had for URAA-restored images before 18 Jan 2012. Personally I would prefer to wait to see what WMF Legal says before doing so, but we could start drafting something beforehand if people want.

Images from outside the U.S. still seem a thornier problem to me. They do seem to be protected in some (maybe most?) countries, so for them the question to me is what sort of evidence or presumption of permission is acceptable, especially for files already on our servers. --Avenue (talk) 00:28, 9 October 2013 (UTC)

I agree we should keep an open mind for imaginative and pragmatic solutions. I also urge WMF legal not to just consider an ivory-tower theoretical argument but practical advice on the real risk anyone might face uploading or reusing content. Also very much need to consider the global picture, including the issue that thresholds are different in the UK and that a very few European countries have "related rights" that ensnare these images. Also I believe that a conclusion that images must be judged on a "case by case basis" would be deeply unhelpful to us -- such judgement can ultimately only be done by a combination of medical expertise (knowledge of the radiographic procedure performed) and professional legal expertise, neither of which are routinely available to us. We need guidelines from WMF that non-experts can apply.
I am still in discussion with publishers, especially in regard to the possible hole in their procedures where permission (and transfer of assets, even) seems to be assumed to have been agreed, but ultimately lacking in practice. I'm also going to enquire at a major London hospital to see what they do. -- Colin (talk) 07:49, 9 October 2013 (UTC)
I would also appreciate an input of WMF Legal. However, DRenaud has clearly stated that "an immediate response [is not to be expected] considering that the federal government is presently closed for business."
Whereas in general I agree with both of you, I have to dispute the comparison to the URAA-restored copyrights. In that case, there was a serious legal argument for the claim that it is not constitutional. Here, we don't have anything like this.
Images should preferrably not be judged on the case by case, but the country by country basis. For the medical images from Sweden, Germany etc., we have collected a number of sources that all support the interpretation that they are protected by the related rights there, and have found no source claiming otherwise. It appears that this does not concern only very few European countries, because currently, we have evidence that non-original photographs and processes analogous to them are protected in Germany, Sweden, Norway, Italy, Spain, probably also the United Kingdom, and elsewhere, where the invested effort can be a substitute for originality. I don't see any evidence for the claim that medical images are copyrighted in the United States. As for now, it is unknown if there was any case about the copyrights in the field of medical imaging in these countries.
Did anyone go to a library or a bookstore to verify whether any of the available books contains any information about this matter? I've visited the central library in my town today, and also the largest bookstore, but have not found anything relevant. Despite this, I would recommend that you do the same, particularly if you live in a larger city. Perhaps this book contains any information. The review mentions that the last portion of the book focuses on ethical and legal issues, including the copyright. Or this book, about ethical and legal issues for imaging professionals. I'll ask the authors of these books about their opinion. It would be good if we listed the sources that we have consulted so far on a separate page. --Eleassar (t/p) 10:08, 9 October 2013 (UTC)
Just regarding the URAA comparison: I wasn't saying there were no arguments for the URAA being unconstitutional, and the files thus being PD. I was saying that there were strong grounds for thinking they might not be PD, i.e. a court judgement to that effect, and so they would have normally been subject to deletion under COM:PRP. My bigger point was that we have made exceptions to the precautionary principle previously, when the legal situation wasn't entirely clear, so we could do so again here. --Avenue (talk) 09:48, 10 October 2013 (UTC)
Yes, and so we can refrain from deleting the UK and the US images. For Sweden and Germany, there is no serious argument why they would be PD, so this really can't be compared to the URAA or any other case, where there was an exception to the precautionary principle. --Eleassar (t/p) 10:48, 10 October 2013 (UTC)
I agree that a country-by-country system may be required. Please stop confusing the "related rights" protection with copyright. There is no "related rights" protection for uncreative/unoriginal photographs in the UK. What the UK has is a low threshold for standard copyright protection, but it isn't zero and it isn't "related rights". There are lots of European countries and so far this "related rights" issue affects just a few of them. As far as the US goes, you are inconsistent here. For the Sweden image you demand people prove the image escapes copyright yet for the US you are demanding proof they are included in copyright. There legal arguments for and against copyright in the US and it isn't at all as certain as you claim. And all this is just theory. We need much more information from publishers, authors and potential rightsholders (who ultimately would be the ones to sign the OTRS ticket). I encourage people to email/visit publishers, authors and hospitals in their country to find out how this is handled in reality rather than in theory. Colin (talk) 10:55, 9 October 2013 (UTC)
There is no inconsistency: we should base our opinion on the evidence that is available to us; we should change it, when and if anyone provides "evidence out there" that gives some nuance to it or even speaks to the contrary. For Sweden, we have reliable sources that state all photographs and processes analogous to them, including medical images, are protected by the related rights. Therefore, if anyone thinks they're not, he or she should provide appropriate evidence. For the US, we have a source (disputed by you on the basis of your biased personal assessment rather than some reliable sources) and practice that claim the opposite: medical images are not protected in the United States. I'm not so sure about the United Kingdom, where "labour, skill and judgment" are the relevant criteria.[57] Which legal arguments support the copyright for medical images in the US? --Eleassar (t/p) 11:28, 9 October 2013 (UTC)
  • What about radiographic images that were deleted for other reasons, e.g. the uploader claiming to be the author when this appeared highly unlikely? What about deleted images illustrating other worthy topics? Where should we draw the line? --Avenue (talk) 04:17, 7 October 2013 (UTC)
I think such images should be un-deleted and those with potentially valid concerns should be re-nominated for deletion if indicated by the strength of the other concerns. Other images are unlikely to be made under conditions where creative expression must be minimized for accurate portrayal. EllenCT (talk) 06:11, 7 October 2013 (UTC)
Why bother undeleting them en masse, just to delete them again? If you have grounds to think certain images were deleted incorrectly, you can always raise an undeletion request. There's no need to seek consensus here first. And creative expression is not relevant in much of Europe, at least. --Avenue (talk) 06:47, 7 October 2013 (UTC)

Canvassing[edit]

The discussion of canvassing in the English Wikipedia that may have influenced the voting has been transferred to Commons talk:Requests for comment/Xrays.

A parallel discussion is available at en:Wikipedia talk:WikiProject Medicine#Commons is really messed up.

That one was already mention here [58] James Heilman, MD (talk) 04:01, 1 October 2013 (UTC)

Note from Legal and Community Advocacy[edit]

Hello James Heilman, MD, et. al. Thank you for engaging in this vital discussion. This issue is complex and important to resolve.

As noted by Avenue, uploads to Wikimedia Commons must be free of copyright in the United States and in the source country of the work. Some countries’ copyright laws are more stringent than those of the United States (for instance, Germany’s), and therefore should not be looked to as the governing standard for Wikimedians writ large. With that said, please be mindful that you are subject to the laws of your own country. Therefore, an upload of content that is treated as copyright-protected in your jurisdiction can subject you to liability, even if the content is otherwise permitted on Commons.

As mentioned in the discussion, the Wikimedia Foundation legal team has previously posted an article on the copyrightability of x-rays. It remains that no U.S. case law can be found that specifically addresses the issue. However, Marybeth Peters, former Register of Copyrights, has indicated that the Copyright Office takes the position that X-rays are not copyrightable because they are mechanical. This statement was made in the context of an informal Q&A during a "Workshop on Electronic Text," and is now quite dated. We are presently reaching out to the Copyright Office to request confirmation. We apologize in advance that we do not expect an immediate response considering that the federal government is presently closed for business.

If the Copyright Office is unable to provide guidance within a reasonable time frame, the legal team will then publish its thoughts in some more detail, taking into account the constraints imposed by lack of clear legal precedent or agency direction on the issue. DRenaud (WMF) (talk) 00:27, 4 October 2013 (UTC)

Thank you for posting and letting us know your plans. Much of our difficulty here arises from editors' differing views about the legal situation(s). The more information you can provide about this (including the implications of situations where it is unclear who holds the copyright, or even if these images are subject to copyright at all), the better our decisions will be. Please keep in mind that many of the radiological images we host are from countries other than the US. --Avenue (talk) 01:58, 4 October 2013 (UTC)
I have sent a letter with some questions that we have discussed here to prof. Marianne Levin from the Institute for Intellectual Property Law and Market Law (IFIM) in Stockholm. I hope that she will answer soon or at least point us to someone who will. When and if I get her reply, I will notify you and will archive it in our OTRS system. --Eleassar (t/p) 07:22, 4 October 2013 (UTC)
From our investigations, the issue is not unique to us but affects regular professional publishers (such as medical journals) and there appears to be a disconnect between what the publishers require (either in order to publish the image, or even to take copyright ownership of the image in some cases) and what the authors of the papers have actually got permission to do. I suspect people are signing forms they don't fully understand, and until now, nobody has minded or noticed. The copyright situation is different for traditional publishing as we require a free licence rather than just permission to publish in one article in one journal. However, this permission is identical to the needs of Open Access publishers as they use CC licensing for their work. Therefore I strongly encourage WMF to have discussions with these Open Access publishers as they are in the same boat as us and we all have a mutual aim to freely accessible/reusable medical information. Colin (talk)
Thanks all. Hopefully we can figure something out :-) James Heilman, MD (talk) 21:55, 4 October 2013 (UTC)

@Jmh649: has User:DRenaud (WMF) said anything more about this, yet? If not, could you please email them to follow up as they promised they would? EllenCT (talk) 22:03, 23 December 2014 (UTC)

The archaeology paper[edit]

This is somewhat of a distraction from the RFC so feel free to skip this. It concerns one of the sources of legal "facts" presented above.

Avenue posted Laser Bones: Copyright Issues Raised by the Use of Information Technology in Archaeology (Alberts Carson, Cindy. Harvard Journal of Law & Technology. Volume 10, Number 2, Winter 1997) as a discussion on CT scan that concludes "In neither case was protectable authorial creativity exercised." Eleassar is promoting this source as proof that US and UK medical images are free of copyright protection, and so the "nuclear" option is "nonsense". I deal a lot with medical sourcing on Wikipedia and co-wrote the guideline for it. Law differs from medicine of course, but there are common features to academic journals.

When beginners start writing on Wikipedia, a common mistake is to assume that an article in a "peer-reviewed journal" is a reliable source for the information it contains. In fact, within such a journal, not all articles are peer-reviewed. And even among those that are, the standards for review vary depending on what kind of article it is. In addition, all quality professional publications are editorially reviewed, but again the standards vary depending on the article type. For example, an academic journal may contain a obituary / biography of a famous person in the field. This would be reviewed by the standards of biographical writing, not of medical research or law. Another type of article, which is a fantastic source for Wikipedia, is the literature review. This is written (and itself editorially or peer reviewed to be) an impartial and comprehensive assessment of the current state of affairs as present in the publish literature. It doesn't contain novel ideas, personal opinions or research.

The article type we have here is called an opinion piece. Such articles appear in many journals and newspapers. With the exception of an editorial, opinion pieces do not necessarily reflect the views of the publisher/editor. A newspaper might include opinion pieces from a journalist whose political stance varies from editorial policy. Or it might contain thought-provoking or controversial ideas that form a minority opinion. The important thing is that such an article is reliable (for Wikipedia, say) only for the opinion of its author, and not for facts in general. A reviewer of such an article is expected to check the cited sources are used appropriately and there are no blatant untruths. But the writer is allowed to cherry pick their sources in order to support their case, to suppress facts that don't help their case, and to write in a style that is far from impartial.

In this article, the author cites a number of related legal rulings to justify her opinions. However, the two archaeological cases that she offers concern Moroccan CT scans of skulls and some data/photographs of a Greek site. In both cases, copyright protection was used to restrict publication by others. The vital thing to note is that copyright protection was used successfully. These are not cases that help prove the author's point but rather cases the author believes should have been resolved differently. Her argument throughout the article is therefore to show why, in her opinion, both claims should have been rejected.

This Article will explain why raw data should not be protected by copyright and why raw data embedded in protectable expression should be made accessible. This Article will also argue that the scope of the fair use doctrine should be expanded for factual works used non-commercially. Part II of this Article describes the various ways that information technology has been applied to archaeological inquiry. Part III presents two cases that illustrate the conflict between govemments and archaeologists over copyright issues. Part IV discusses the copyright issues raised by the use of information technology in archaeology; and Part V proposes a standard which should be applied to that use.

If this was a source we could use to demonstrate current expert thinking on the issue of US radiology, the above paragraph would be full of "is" and "are" and say "explain" rather than "argue". I should also note that the two cases are in Morocco/France and in Greece, so the opinion of a US lawyer on US law is somewhat moot.

-- Colin (talk) 12:31, 10 October 2013 (UTC)

Colin, I agree with much of what you've written here. That paper discusses the two CT scans briefly in the context of differences between U.S. and U.K. copyright law. It does conclude that "In neither case was protectable authorial creativity exercised", in a section that begins by stating "If there is no authorial creativity, the process is a purely mechanical one and its results are unprotectable", citing US precedents for this. This implies (IMO) that the author believed those two CT scans would not be subject to copyright under U.S. law. This doesn't conclusively demonstrate that those two CT scans are free of copyright, in the U.S. or anywhere else. It simply indicates what one U.S. legal scholar thought about those two specific radiological images, and the reason they gave for their conclusion. --Avenue (talk) 17:15, 10 October 2013 (UTC)
Agree but both the existing Wikilegal and another analysis I've seen by email (but not distributed yet) were much more balanced than this -- citing aspects of US law that could be used to argue copyright protection was warranted and aspects to argue it wasn't. The author here has cherry-picked the one aspect that suits their case. The combination of possible pro/anti arguments that would be made in a real court with a real judge making a case-specific decision mean I strongly suspect any new legal analysis will come to the same uncertain conclusion. Indeed, I'd be nervous of any confident conclusion coming from WMF unless they were willing to back it in court -- because it is us uploaders who are liable, not WMF. -- Colin (talk) 17:28, 10 October 2013 (UTC)

Professor Levin's letter[edit]

Here I post the letter by professor Levin in regard to the Swedish law that I received yesterday (will be sent to the OTRS):

"In Sweden, all photographic pictures are protected under the Copyright Act on Copyright in Literary and Artistic Works (1960:729). Photographic works, i.e., works with an artistic expression enjoy a full copyright protection as any other literary or artistic work under Art. 1 of the Act (cf. the Berne Convention and Art.9 of the TRIPS Agreement). Art. 1 of the Copyright Act gives to the author, or his successor in title, exclusive right to control the work by reproducing it and by making it available to the public; be it in the original or an altered form, in translation or adaptation, in another literary or artistic form or by other technical means. All other photographic pictures are protected as a neighboring right under Art 49 a of the Copyright Act. In the latter case, anyone who has produced a photographic picture has an exclusive right to reproduce the picture and to make it available to the public. The only requirement is that the picture is the result of a photographic method in an extensive interpretation of the term, what can still be deemed to be processes analogous to photography. The neighboring right lasts 50 years from the year it is taken or published.

While copyright originally can only originally occur by a physical person, the author, the neighboring right to a photographic picture can occur by the act of a physical person (the photographer) as well as by a mechanical device that has instructed a machine to produce photo pictures.

In conclusion, in Sweden no photographic pictures can be reproduced or made available to the public without permission by the copyright holder or the owner of the photographic picture (neighboring) right. In regard of medical images, it is difficult to say who would be the holder of the image right. But if it is a picture taken by an employee at a hospital, it seems most logical that the hospital as a judicial person is the right holder, i.e. not the patient, nor the doctor or the nurse operating the camera.

As all pictures are protected against all reproduction and/or making available. The commercial or non-commercial purpose does not matter for the requirement of authorization, but could be relevant for the question of damages.

Marianne Levin

Professor Ll.D., Ph.D. h.c.
Department of Law
Stockholm university"

--Eleassar (t/p) 12:51, 19 October 2013 (UTC)

Thanks for getting and posting this, Eleassar, and thanks also to prof Levin. While this confirms they are protected in Sweden, I would have preferred a more confident answer as to who holds the rights and thus who to contact for permission. On this point, the lawyer seems to me to be making an educated guess. From my own communication with the UK Society of Radiographers, they stated a UK hospital would own the rights except if the radiographer was self-employed. I have no idea how common that self-employed situation is in the UK or elsewhere, or whether even then their contract might require a transfer to copyright to the hospital. Additionally, in the UK at least, not all MRI and CT scans are performed in hospitals: some are outsourced to private companies in those cases it is similarly unclear who owns the rights. Unless we have a set of procedures to follow to determine exactly who owns the rights to a given radiology image from a given country (and where this is a company/organisation, who individually to ask), then we can't move forwards. At present, we are in a position where we can't advise anyone to upload radiology images because we have no idea how they can make them comply with our terms. -- Colin (talk) 13:35, 19 October 2013 (UTC)
Levin seems say that photocopies are protected, "the result of a photographic method in an extensive interpretation of the term". No one actually acts as if that was the case. There is no doubt that pictures produced by X-rays and visible light have the same legal status, but I'd like something more explicit concerning the "picture" part in "photographic picture". Edaen (talk) 14:06, 19 October 2013 (UTC)
Please, let's not start amateur-lawyering the lay summary that prof Levin has given us. She doesn't mention photocopies (which are "photographs" of 2D objects, not 3D scenes or objects) so we can't synthesise an argument concerning them. She's been asked about medical radiographic images so that will be the extent of any applicability of her words. We can't work backwards from this interpretation in order to figure out how the law works any more than one can examine a cake and figure out what an egg looks like. If prof Levin regards medical radiographic images as protected works in Sweden then we'll have to accept that, even if some of the explanation could be queried. -- Colin (talk) 17:38, 19 October 2013 (UTC)
I'd really like to have an answer to that question. She does say that "by a mechanical device that has instructed a machine to produce photo pictures" which is not restricted to medical radiographic images. I don't know if the distinction between 2D and 3D has any relevance to Swedish law. Edaen (talk) 18:02, 19 October 2013 (UTC)
Fair enough, though let's watch this doesn't get side-tracked. Colin (talk) 18:24, 19 October 2013 (UTC)
I'll ask her to comment on this. --Eleassar (t/p) 18:15, 19 October 2013 (UTC)
Thanks! Could You by any chance mention page 471 in SOU 1956:25. There are some examples of photographs that are not pictures on that page. Edaen (talk) 18:18, 19 October 2013 (UTC)
What do you mean by "photographs that are not pictures" ? -- Colin (talk) 18:24, 19 October 2013 (UTC)
A photograph is something made with light sensitive equipment. In the abovementioned SOU 1956:25 photographs of photographs and photographic copies of text and drawings are denied to be "pictures". Edaen (talk) 18:28, 19 October 2013 (UTC)

Deletion reviews[edit]

The Commons:Deletion requests/File:Computed tomography of human brain - large.png deletion request that sparked this has now closed. What is clear is that the deletion request should never have been raised and has caused unnecessary conflict. The very idea that copyright law can be worked out by amateurs is fundamentally flawed and this DR and the above RFC are testament to that. The DR should never be created by those ignorant of the position of the law [this is different to the position where we are ignorant about the source/creator/owner of a specific image, but are clear about the law]. Participants in an DR should not attempt to define law based on Google searches and reading what they believe are relevant parts of textbooks. Or by reading about one country and guessing that another is similar. If this has been past practice on Commons then it needs to stop. This isn't a game. The uploaders and reusers have a right to professional opinion wrt the law, not what a bunch of amateurs have invented on a wet Sunday morning. Those doing administrative jobs on Commons should understand that they are here to provide a supportive role to the content producers and reusers. The sort of game playing that has gone one here, even when well-meaning, is unprofessional, does not give confidence to our reusers, and is insulting to the producers.

The procedure that should have been followed is that the best advice on the law of the relevant country/countries should be sought from a professional. Their advice needs to be specific to the issue. Then the uploader of the image should be contacted to inform them of any extra permission required and who they need to ask. Only if that fails to deliver should a DR be started. To shortcut this process is insulting to those who spend hours creating, uploading, categorising and inserting into Wikipedia the images we host. There is no need to rush -- the particular image that started this, has been on Commons since 2008.

I am disappointed that we still do not have clear advice on who to contact for permission in cases where this is required, or for which countries we believe it is not required. I hope WMF will spend some of its money to find out, possibly in collaboration with open access medical journals. There are thousands of x-rays and other scans on Commons. If we have any respect for the effort made in getting them, or value their contribution to Wikipedia, then we must push to see this matter resolved professionally. This is not a job for the crowd, because the crowd is stupid, not wise.

Colin (talk) 08:47, 20 October 2013 (UTC)

I think you should open a new RFC on the question about who and when can open a DR and rewrite the deletion policy on the basis of the discussion. Feel welcome to do so. --Eleassar (t/p) 08:57, 20 October 2013 (UTC)
Oh I think Douglas Adams had something to say about the futility of writing foolproof policy. And it certainly isn't wise to do so on the basis of one example. How about you demonstrate how Commons has learned its lesson on how to deal professionally and respectfully with such issues. Get a definitive statement from a legal professional on the copyright/related-rights issues with x-rays and similar radiographic images in Germany, as you did for Sweden. Then find out who owns any such rights and who has the authority to release them under appropriate licence. And then to work with User:Hellerhoff to ensure his thousands of images continue to be a valuable free resource. That would be a hugely productive and positive thing to do. Might even earn a barnstar. :-) -- Colin (talk) 16:50, 20 October 2013 (UTC)
Per Túrelio, "the literature seems to uniformly consider the medical doctor, dentist or veterinary physician as the rights holder." I don't have any evidence to doubt about this, so as far as I'm concerned, Hellerhoff's images are ok. If you disagree, you should provide an evidence to the contrary. --Eleassar (t/p) 20:54, 20 October 2013 (UTC)
Well, then it is clear you have learned nothing. Colin (talk) 21:22, 20 October 2013 (UTC)
Who cares about me anyway? The decisions about whether files will be kept or deleted are made by administrators. Anyone may propose (or not propose) any image for deletion, and if you're not sure about Hellerhoff's images, because there is no statement by a legal expert, you (or anyone else) can do it too. --Eleassar (t/p) 21:26, 20 October 2013 (UTC)
You continue to fail to see the bigger picture. Should Hellerhoff upload any more pictures to Commons? That represents a significant investment of this professional's time, not to mention legal and employment risk should he be doing it wrong. I think the community is being completely unprofessional in its handling of medical images. We/WMF offer no good advice on the matter. Uploaders are left in the dark, waiting for someone to take pot shots at their work. And when these shots arrive, they are insulted by the speculation of amateurs armed with Google. What makes Túrelio a reliable source on the copyright situation of radiographic images in Germany? I think the claim you made above is highly likely to be found unsatisfactory. But I don't want to argue with you or Túrelio because I shouldn't have to. Stop playing games, both of you. Colin (talk) 08:04, 21 October 2013 (UTC)
If necessary, Hellerhoff can himself find and ask a lawyer for advice in this regard. He has already stated at his talk page that he would do this. He doesn't need you to be his lawyer. He has also stated that he is sure that all potentially involved persons in his hospital would give a permission for what he does here if this is really needed. You may discuss the issue at his talk page, but I find it completely unprofessional and unethical that you have even gone so far to single him out in this RFC without his permission, without anyone even willing to nominate his images for review. --Eleassar (t/p) 08:32, 21 October 2013 (UTC)
Re your last sentence. You have lost the plot completely. Now please just stop. Stop creating DRs on subjects you know very little about. Stop citing unreliable sources. Stop making up laws. Just find something else to do on Commons. Colin (talk) 08:43, 21 October 2013 (UTC)
I don't think it's up to you to tell me what should I do and what not. Mind your own business. I'm doing productive work and I do cite reliable sources and if you think otherwise, post your opinion at Commons:Administrators' noticeboard/User problems or open another RFC. --Eleassar (t/p) 12:21, 21 October 2013 (UTC)

Deletions begin[edit]

  • File:Teeth molar47 46resection crown premolar45.jpg up for deletion by User:Eleassar (nom). Image uploaded in 2004 and used in 32 articles on 19 Wikipedias. Uploader User:Wohlgemuth hasn't edited since 2006. User is not thanked for the great contribution his image has provided to Wikipedias internationally. The deletion template challenges the uploader to argue their case for keeping the image. Such arguments seem unlikely to offer wise or knowledgeable input from any party. The nom simply states "Non-free X-ray from Germany." It doesn't offer any advice, instead, for how to seek permission to licence it properly (should such permission be required). It doesn't cite any Commons policy page that explains why such an x-ray might not be free, or describe (sourced reliably, of course) what the law is in Germany regarding such x-rays.

Regardless of the legal/policy merits of deleting such images, I am appalled at the way this is being done. Nothing has been learned from the original x-ray that sparked this RFC. This is is deeply insulting to our contributors and quite unprofessional behaviour. People performing administrative roles (not necessary as an Admin) should work with our contributors to help them fix issues with their images. The approach here is all wrong. Colin (talk) 13:15, 21 October 2013 (UTC)

You know, all kinds of people can do here whatever they want. Go to Commons:Administrators' noticeboard/User problems and open a new RFC about who and when can open a deletion request. :P --Eleassar (t/p) 13:33, 21 October 2013 (UTC)
As I mentioned on my discussion page all potentially involved persons in my hospital will give / have given permission (oral) to what I do here with radiologic images from my department or endoscopic images of the department of internal medicine. But I'm not in the hospital for several weeks now and so the written permission will take some time. Deleting images before that doesn't seem to be helpful for what we all intent with our participation in the WP-project. I put a lot of work in the selection, image-optimization, description, uploading and categorization of the images. In case of the image-series (such as the one on my userpage) there is additional work arranging the series not mentioning the programming of the javascript. So I hope that anyone who wants a deletion is aware of this and so will give enough time to correct some possible formal faults. It's always easier to destroy than to build up.--Hellerhoff (talk) 11:14, 14 November 2013 (UTC)
Ok. Can you approximately state how much time do you need? --Eleassar (t/p) 11:21, 14 November 2013 (UTC)
I will be back end of january. But cannot promise that the permission will be my first task there. Greetings! --Hellerhoff (talk) 11:18, 24 December 2013 (UTC)
Thanks for the update. I see your three images listed above were deleted a few days ago, I presume because more than 30 days had passed since the {{OTRS pending}} date they were tagged with (14 Nov). I'm not an OTRS volunteer, but I'd be happy to help get them restored once you have the appropriate written permissions. --Avenue (talk) 12:27, 24 December 2013 (UTC)

Copyright office draft[edit]

On page 300 it states medical imaging is NOT copyrightable [59]. I guess we should wait for the final version before we begin restoring? User:Eleassar, User:Avenue and User:Stefan4 does this change your position at all? James Heilman, MD (talk) 19:03, 20 August 2014 (UTC)

Please read Эlcobbola's response on the talk page. It seems this is an opinion by the Copyright Office, not necessarily supported by law. Huntster (t @ c) 23:39, 20 August 2014 (UTC)
My position has been all the time that medical images are not copyrightable in the United States. This, however, has nothing to do with them being copyrightable in Germany and Sweden. --Eleassar (t/p) 06:08, 21 August 2014 (UTC)

References[edit]

  1. a b c Iyer, Patricia; Levin, Barbara J.; Shea, Mary Ann () Medical Legal Aspects of Medical Records, Tucson, AZ: Lawyers & Judges Pub. Co., p. 5 ISBN: 9781930056756.
  2. Balen, Paul (September 1997). "Claims for Crown Copyright on Medical Records". Clinical Risk 3 (5): 157. DOI:10.1177/135626229700300508.