We recently published an article in the New England Journal of Medicine describing a crisis in cognitive testing, as doctors and medical researchers increasingly face copyright claims in sets of questions used for testing mental state. We encouraged the creation of a cultural norm in medicine, in which medical researchers would ensure continued availability of their tests through open source licensing for any copyrights that might exist.
In this piece, we consider the legal side of the question. Although copyrights are being copiously asserted in medical testing, are those rights valid, and should they be upheld? The legal precedents in this area are anything but clear, and the courts are divided in the few analogous circumstances that have arisen.
We examine analogies in standardized testing, computer compilations and baseball pitching forms to consider the marvelous question of how to conceptualize a process—which is the purview of patent law—when that process consists of words—which are the purview of copyright law. We also look from an economics perspective at the issue of investment and value creation in the development of de facto standards.
Legal scholars are so often in the position of looking backwards, teasing out solutions to problems that have developed within a doctrinal or theoretical area. Rarely does one have the opportunity to affect the course of events before problems become so deeply entrenched that they are intractable. This is such a moment, and the legal and medical fields should take advantage of the opportunities presented.