Although the controversy was conceived almost nine months ago, the authors of a New England Journal of Medicine (NEJM) “Perspective” article recently gave birth to a flood of commentary about the actions of a current owner of the copyright to a long-used mental status examination demanding that a recent, free, “open source” mental status exam be taken down from the website where it was available.
Our villain is PAR, “also known as” (its words, although to me that always evokes an image of an evlidoer who seeks to hide its identity) Psychological Assessment Resources, which “publishes psychological assessment instruments, software, books and other related materials in the following areas: personality/counseling, neuropsychological assessment, forensics, achievement/development/learning, intellectual/ability/cognitive, behavior/health, and career development/business.”
Since 2001, PAR has owned the copyright to the “Mini-Mental State Examination” (MMSE). Before PAR acquired the copyright from the MMSE’s authors, the MMSE, according to the NEJM article, was “widely distributed in textbooks, pocket guides, and Web sites and memorized by countless residents and medical students” and had become the de facto standard for cognitive testing of patients in clinical settings. The test consists of 30 short questions and tasks that a medical provider asks a patient to answer or do. PAR charges $1.23 per copy of the test instrument. Although the MMSE is apparently now in its second incarnation, I was able to find a copy of what is apparently the first edition of the test.
Our heros are Tamara G. Fong, MD, PhD, and her colleagues, who developed, tested, and made available to the world–for free–the “Sweet 16” cognitive impairment test. If all scientists did this all the time with their inventions, the world would be a wonderful place indeed.
But, as they say, no good deed goes unpunished (has anybody ever performed a scientific study of that?). PAR, apparently afraid of losing its sales of the MMSE, demanded that the Sweet 16 be removed from its internet home at the Hospital Life Elder Program. The Sweet 16 was removed, and there is no indication from any player whether that might change any time soon.
The Legal Background
A fuller and better explanation of why PAR is way off base with its claim that the Sweet 16 infringed its copyright is presented by law professor James Grimmelman. But I’ll give the Reader’s Digest version of applicable copyright law, and hope that Reader’s Digest doesn’t sue me for copyright infringement.
Article I, Section 8 of the United States Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Congress, never one to exercise restraint in wielding powers, has created an extensive set of laws to protect authors–whether or not their art is “useful”–and inventors.
Section 106 of Title 17 of the United States Code, the copyright law, gives the owner of the “copyright” to the work several exclusive rights in the work, including the rights to
- Reproduce the work;
- Prepare derivative works based on the work;
- Distribute copies of the work;
- In the case of artistic works, perform the work publicly;
- In the case of artistic works, display the work publicly;
- In the case of audio recordings, “perform the copyrighted work publicly by means of a digital audio transmission.”
Apparently, PAR’s claim here is that the Sweet 16 was a “derivative work” of the MMSE. Section 101 of he Copyright Act defines “derivative work” as follows:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
I cannot fully determine whether the Sweet 16 is a derivative work because I can’t find a copy of the Sweet 16 to compare to the MMSE, and, frankly, I don’t really know what the above-quoted language would mean when applied to a test for cognitive status.
Even without seeing the Sweet 16, however, I am comfortable saying that I would find it hard to believe that it would qualify as a “derivative work” of the MMSE. As Professor Grimmelman explains, and as Section 102(b) of the Copyright Act provides, copyright protection is not available to a process or procedure (don’t ask me what the difference between “process” and “procedure” is):
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
To the extent that the MMSE is merely a process to determine a person’s cognitive state by asking certain types of questions, it’s not subject to copyright protection.
Also, the MMSE is probably not protected because it’s not truly “original.” Copyright law protects only “original works of authorship.” According to some of the medical articles I read in researching this, the kinds of questions embodied in the MMSE–questions like “What is the year?”–have been around a long time in assessing cognitive status. Perhaps the specific order and wording of the questions is protected to the extent it might be “original,” but the use of the questions themselves is apparently not original.
The moral background
It seems that, for PAR, what’s good for the goose isn’t good for the gander. According to a complaint filed against PAR that ended up in federal court, in the mid-2000s PAR was asked by an author of one of its tests to take down from the internet a revised version of the test. The author was concerned that important portions of the test were missing from the internet version, and that the internet version as published had not been validated by scientific studies. According to the complaint, a contract between PAR and the author prohibited PAR from making revisions to the test except by agreement with the author, and PAR breached that agreement by publishing the internet version. Because that case appears to have been settled out of court, it is impossible to know what happened in the end, although the test in question is still on PAR’s website, in several versions. But it appears that PAR did not act so quickly, if at all, to remove a disputed work from the internet, as it demanded that the Sweet 16 authors do.
And, at least one commentator has not-so-subtly implied that the “Brief” version of the MMSE-2, published by PAR, of course, may actually be a spin-off of the Sweet 16. If that’s true, then the moral lows to which PAR has sunk become even deeper. If it’s the other way around, that is, if the Sweet-16 authors “copied” the brief version of the MMSE-2, that still doesn’t change my mind: the “brief” version of the MMSE-2 would still be a “process” that is not subject to copyright protection, and PAR would be merely trying to suppress a legal alternative to its tests. I can’t find any indication of when the “brief” version was first published or whether PAR even claims that the Sweet 16 was copied from the “brief” version of the MMSE-2.
Why was the Sweet 16 taken down?
What can be done?