17 Jan 2011

Copyright in medical records: where is the "independent intellectual effort"?

by Mary Still

Australian courts have been emphasising the importance of "independent intellectual effort" in copyright cases recently, and Primary Health Care Ltd v Commissioner of Taxation [2010] FCA 419 is another in this trend.

In this case, Justice Stone found that copyright does not automatically exist in a medical records such as prescriptions, health summaries, referral letters and consultation notes. She determined that the existence of copyright in a medical record must be determined on a case-by-case basis.

It was noted that copyright can only exist in medical records where all the authors have been identified and that copyright was more likely to be found in a medical record with only one author. This was because such medical records were more likely to display the level of independent intellectual effort that would justify classifying the record as an original literary work for the purposes of the Copyright Act 1968.


Primary Health Care Ltd, the applicant, was the beneficial owner of a trust. Certain medical and dental practices were purchased on behalf of the trust. The applicant claimed it had acquired, as part of its assessable income, copyright interests as part of its purchase of the practices and as such was entitled to tax deductions from the net income of the trust. Copyright was claimed in the prescriptions, health summaries, referral letters and consultation notes of the acquired medical and dental practices.

Justice Stone noted that in order for copyright to exist there must be something in the medical record sufficiently substantial to qualify as an original literary work. Each individual medical record tendered in evidence was analysed by Justice Stone on its own merits.

Consultation notes

Copyright was found to exist in only one of the consultation notes tendered. This consultation note had only one author. Justice Stone found that this consultation note was a continuous narrative which displayed independent intellectual effort expended in the expression. It was noted that a consultation note is more likely to display a continuous narrative if it was written by only one author.

The consultation notes that had multiple authors were restricted to notations of names of medical conditions, medications and physiological and pathological data. The intellectual effort that went into the creation of these consultation notes was found not to be directed at independent written expression but at patient diagnosis and treatment. As a result these consultation notes were too insubstantial to qualify for copyright protection.

Prescriptions and health summaries

All the prescriptions and health summaries tendered in evidence were also found to be too insubstantial to qualify for copyright protection. The prescriptions consisted only of the names of medications, dosage and standard directions. The health summaries generally contained only a list of previous illnesses and procedures.

Referral letters

Justice Stone was satisfied that the referral letters tendered contained independent intellectual effort of some (albeit occasionally minimal) substance. She noted that although the style of referral letters generally followed a similar pattern, this was reasonable as the style and content were driven by the purpose of the letters. Copyright was found to exist in all the referral letters tendered.

Thanks to Rachel Wright for her help in writing this article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.