Thursday, February 2, 2012

A Statutory Medical Copyright License?

While it is well known that there is a statutory license for use of music (Section 112 (e) and 114(d)(2) of the Copyright Act), many other license agreements are reached with royalty payments scheduled. (For example, YouTube's agreement with the National Music Publishers Association)

Understandably, statutory licensing schemes usually resolve complex issues. Given the recent uproar over SOPA and PIPA, maybe Congress could focus on something a little less controversial.

I came across this recent article regarding a copyright dispute over cognitive screening tests.

While such works may receive copyright protection, I do not believe that anyone wants to face copyright liability for administering what may be an important medical test. While some defenses such as fair use may be available, some medical professionals, or even the hospitals or companies that employ these professionals may not want to assume the risk.

In general, the government should want to encourage the creation of new screening tests and copyright creates this incentive. However, a simple licensing scheme with royalties may provide the appropriate balance so that those in the medical field may administer these tests without risking copyright infringement actions.

A statutory license could be an assessment on the patients to whom the test is administered in the form of a fixed cost. A statutory license could be assessed on the medical professional who administers the test in the form of a fixed royalty rate based on the number of times the test is used on an annual basis. A statutory license could be based on a single flat fee for use of an entire library of such tests. There are hundreds of other ways in which Congress could devise such a statutory license. (Perhaps the most difficult task would be to determine which tests qualify for medical screening tests.)

I think this is a proposed legislation that Congress could pass with relatively little opposition.

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