Copyright in Diagnostic Tests: Not yet the end for fair use

Abstract

The authors tackle the issue of copyright protection under US law for diagnostic tests such as the Folstein Mini-Mental State Examination (MMSE). The article claims that no copyright vests in such works, these being outside the scope of copyright-protectable subject-matter. Even where copyright is held potentially to subsist in diagnostic tests such as the MMSE, it would be difficult successfully to argue that the MMSE is sufficiently original for the purpose of copyright protection. Even more difficult would be a situation where clinicians were held liable for copyright infringement, because they had photocopied or downloaded the MMSE. The fair use doctrine could in fact be successfully invoked by potential defendants. The article concludes by holding that fair use, not licensing models to be adopted on a sole voluntary basis, is the answer to restrictions unduly imposed by copyright to access of diagnostic tests and suchlike.