Commons:Deletion requests/File:Computed tomography of human brain - large.png

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File:Computed tomography of human brain - large.png

These images have not been created by the uploader (he was the subject of the CT scan), therefore he is not the copyright holder of them. Eleassar ^(t/p) 10:14, 16 September 2013 (UTC) f

Per [1]: "The Copyright Office takes the position that X-rays are not copyrightable because they are mechanical. It can be argued whether or not image enhancement in scanning can be protected." I'm not sure what kind of image enhancement does this refer to, but probably the enhancement by intravenous contrast that was used in making this scan. Deletion would be warranted per COM:PRP. --Eleassar ^(t/p) 10:33, 16 September 2013 (UTC)

Xray images are not copyrightable. And even if they were no one has any idea who would own the copyright in that case. If we follow the precautionary principle we may as well delete all X ray images. That would be stupid. We should not have higher copyright requirements than the rest of the publishing world. James Heilman, MD (talk) 11:08, 16 September 2013 (UTC)

A number of orphan works have been deleted from Commons, even though we don't know who owns the copyright. As evident, this is not a native X-ray image, but an enhanced CT. In contrast to X-rays that are generally presumed to not be copyrightable, the status of enhanced images has been stated to be unclear. --Eleassar ^(t/p) 11:11, 16 September 2013 (UTC)

“	Article 49 a. Anyone who has prepared a photographic picture has an exclusive right to make copies of the picture and to make it available to the public. The right applies regardless of whether the picture is used in its original form or an altered form and regardless of the technique used. A picture that has been prepared by a process analogous to photography is also considered to be a photographic picture. The right under the first Paragraph lasts until fifty years have elapsed after the year in which the picture was prepared.	”
—Act on Copyright in Literary and Artistic Works (SFS 1960:729, as amended up to April 1, 2011), http://www.government.se/sb/d/2707/a/15195

Mikael, did the radiologist radiographer agree dedicating these files to the public domain or will they possibly agree? -- Rillke^(q?) 11:18, 16 September 2013 (UTC)

The radiologist is the person who interprets the image, the radiographer is the person who performs the procedure, the machine is the thing that takes it, made by a company. None of these people have rights to the image. They are obliged to keep a record of the image for some years and protect this data from being circulated against the consent of the individual. If the radiologist chooses to ask for consent from the patient to use the image in text books/journals, and the person agrees, then they have some intellectual rights over the image. Since there is no company logo on the film, no patient details, and the person whose anatomy is the subject of the scan has uploaded it themselves, there is absolutely no reason to delete this image. Unsure why this discussion even arose. Lesion (talk) 11:40, 16 September 2013 (UTC)

Xrays are not photographs. Per here "The Copyright Office takes the position that X-rays are not copyrightable because they are mechanical." [2] The CT images are made by a computer program based on X-rays. The computer would not get the copyright and no human is typically involved in the processing. IV contrast is also completely taken care of by the machine. James Heilman, MD (talk) 11:45, 16 September 2013 (UTC)

The source also states: "It can be argued whether or not image enhancement in scanning can be protected," which is the case here. The choice of the dose, the section, the timing and any other parameter all make a CT scan creative and thus copyrightable. --Eleassar ^(t/p) 12:03, 16 September 2013 (UTC)

Choosing parameters in a standardized way in order to create a standardized image is the opposite of creative.--Taylornate (talk) 16:21, 16 September 2013 (UTC)

This is US-law. The tomographic images were prepared at Uppsala University Hospital where each picture that has been prepared by a process analogous to photography, which clearly applies to simple X-ray-imaging, is protected for 50 years after the year in which the picture was prepared. -- Rillke^(q?) 12:04, 16 September 2013 (UTC)

Thanks for the corrections.

A camera is also "just a machine". Even simple reproductions of 2D-PD-works are copyrighted in Sweden, according to the cited law. -- Rillke^(q?) 12:13, 16 September 2013 (UTC)

This is strange logic to me ... when authors ask for consent to use a CT in a textbook or a medical journal, they ask the patient, they do not need to ask the company that makes the machine which generated the image, neither do they have to give credit to those. The company that makes the intravenous catheter that administered the contrast also gets some copyright by this weird logic? Considering we don't actually know what machine, or software was used, and since the individual has clearly requested to have a copy of the image, and has chosen to upload it, there is no real issue here. I would encourage similar uploads by others, they are potentially very beneficial additions. Lesion (talk) 12:52, 16 September 2013 (UTC)

Eleassar, the kind of enhancement they're talking about is not administration of contrast, but digital manipulation similar to Photoshop filters, e.g., to highlight something by manipulating artificial color (not just the automatic artificial color).

Copyright requires the presence of at least a tiny creative element. This is not just an American idea. This is true in the UK, too, where works are not copyrightable unless there was "independent creative effort" involved. Swedish law requires "that the work should display originality or individuality as a result of the originator's personal making. It is, in other words, the originator's special way of expressing something".

If none of the people making the image have any real choice in the way it is done, then there is no copyright possible. That's what's going on with (the vast majority of) these images: the radiographer must precisely follow the orders from the physician, with no creative or "special" elements added on his or her own. The radiographer's goal is for each image to be standard and mechanical, not creative or original. Unlike "a process analogous to photography", the person pressing the buttons here gets no control over lighting, timing, speed, or anything else that might constitute "independent creative effort" or "the originators special way of expressing something".

Weasel: It's conceivably possible that for an extremely unusual situation, the physician's orders for a non-standard arrangement would constitute sufficient originality to give the physician a claim to a copyrightable element. But routine radiological images never do, and so far we haven't seen any "creative" ones. WhatamIdoing (talk) 14:59, 16 September 2013 (UTC)

• I just added template:PD-medical to the image's page.

This file is ineligible for copyright and therefore in the public domain, because it is a technical image created as part of a standard medical diagnostic procedure. No creative element rising above the threshold of originality was involved in its production. See Meta:Wikilegal/Copyright of Medical Imaging for details.

If there is to be debate about that template or surrounding policies, then please do it at Commons:Patient images. Blue Rasberry (talk) 15:03, 16 September 2013 (UTC)

I just saw this discussion and I'm relieved it seems to be solved already. I can possibly get a consent from the radiology department in Uppsala (if they remember me at all) but it's even better to let this be an example of where it isn't necessary. The only really troublesome situation I can think of regarding this matter is if the involved physicians are concomitantly using the same image for another publication, but that situation would be very rare, and even if it happened I think it we can reach an agreement that makes everyone happy. After all, radiology images are primarily created for diagnostics and not for eventual publication, so even if I'm not an expert in law I think it's safe to allow them in most cases. Mikael Häggström (talk) 17:10, 16 September 2013 (UTC)

Permission from the radiology department is useless as copyright belongs to the person who created the image. The department didn't create the image, but one of the department's employees did. Permission is needed from that employee. --Stefan4 (talk) 20:17, 16 September 2013 (UTC)

Hi Mikael, if you are contacting the radiology department anyway, why not ask them to get you in direct contact with the person (technician?) who initially performed the shots or, if not possible for privacy reasons, whether they ask him for a sufficient permission (PD or at least CC-BY-SA). As you are a physician by yourself, you might eventually get such a permission more easyly. --Túrelio (talk) 08:30, 17 September 2013 (UTC)

If we are going to assume that X-rays are copyrightable, than we actually need to read the contract that the technologist has signed with their employer. What if it states that the tech hands over the images to the hospital? Than it would be the Swedish government we need to ask for permission. James Heilman, MD (talk) 10:45, 17 September 2013 (UTC)

It is quite unusual (and has been for decades) for employees to hold copyright to works that they created as part of their job duties. If we assumed that this image is copyrightable (I am convinced that it's not), then we would need a license from the employer, not from the person who was engaged in "work for hire" image creation. WhatamIdoing (talk) 16:04, 17 September 2013 (UTC)

That may be true for the U.S., but hardly for Europe. Anyway, the more relevant question is whether Swedish copyright law or courts consider x-ray images to be protected (like Germany) or not (like U.S.). --Túrelio (talk) 16:10, 17 September 2013 (UTC)

• I think WAID's description of why the image should not be copyrightable is correct. An X-ray image shouldn't be any more copyrightable than the report, even if written, of taking someone's temperature with a thermometer and writing it down. There is no creative element involved. Zad68 (talk) 18:23, 16 September 2013 (UTC)

  Yes agree with Zad that X-rays are more similar to the process of taking a temperature and writing it down. Both require pressing a button. Neither result in the creation of copyrightable material. James Heilman, MD (talk) 19:12, 16 September 2013 (UTC)

• WhatamIdoing, the issue is not "the copyright" here, that would expire 70 years pma and which requires a high level of innovation or creativity but a right that does not; just an author who clicked a button or similar and that expires 50 years after the year in which the picture was prepared. There is a similar paragraph in German copyright law - I mention that because I can read the comments about this law - and there is consensus that no matter of the merit/creativity in a photo -- they are all protected as "Lichtbildwerk". But because Wikimedia Commons does anyway disrespect this right with its {{PD-Art}},  Keep and maybe an amendment at the file description page that this file can't be used freely in some European countries. -- Rillke^(q?) 19:20, 16 September 2013 (UTC)
  • If your justification for deleting it is a Swedish law titled "Act on Copyright in Literary and Artistic Works", then I think that yes, we are talking about "the copyright". (Does Sweden have more than one copyright law? Because CT images are neither "literary" nor "artistic".) WhatamIdoing (talk) 16:26, 17 September 2013 (UTC)
•  Delete It is a photo and it was created after 1968. It is therefore copyrighted in Sweden. The person who created the image (i.e. the person who pressed some button on some machine) needs to give permission. Originality is only needed for protection beyond 50 years after creation. The 50-year copyright term is a protection given to someone who presses a button, not to someone who does something creative. COM:ART deals exclusively with 2D works of art, but the uploader's brain is neither 2D nor a work of art, so COM:ART isn't applicable here. --Stefan4 (talk) 20:17, 16 September 2013 (UTC)

Sweden? What kind of reason is that? And I'm sure that this is a 2D image. It would look very different (i.e. 3D) if it was a 3D reconstruction. Lesion (talk) 21:01, 16 September 2013 (UTC)

Sweden is the source country of the work. The requirement is that the underlying object is 2D, not that the reproduction is 2D. See also COM:L#Interaction of United States copyright law and non-US copyright law. Commons only supports 2D images as no file format for 3D images is supported by Mediawiki. --Stefan4 (talk) 21:28, 16 September 2013 (UTC)

Keep-- This is not a 3D ct. Type this into google images and you can see this. Neither is it accurate to call this a photo. Photographs and CT scans are not the same. Regardless, there is no good reason to delete this image or any similar image. This is a waste of time discussing, the person uploaded the image themselves. When CTs appear in journals and textbooks, they are usually credited to a clinician. The clinician will have had to obtain consent from the patient to use the image in this way. It is not the other way around, the patient does not have to ask consent from the person who took the image to use it however they wish. Lesion (talk) 19:30, 17 September 2013 (UTC)

The person is working for an employer which is often the government, so even if it was copyright able, it would be the gov you would need to ask for permission. But the gov gives to pt James Heilman, MD (talk) 20:45, 16 September 2013 (UTC)

I guess the next question is should I be moving all my images to Wikipedia and off commons if this is commons position?James Heilman, MD (talk) 20:49, 16 September 2013 (UTC)

You are confusing US law with Swedish law. Under US law, the employer is the copyright holder. Under Swedish law, the employee is the copyright holder, but the employer implicitly gets permission to use it for its original intended purpose. There have been numerous cases where an employee has sued an employer for using a work for some other purpose. If something from Sweden is copyrightable in both Sweden and the United States, then USA uses the Swedish rules for determining the copyright holder (see w:Itar-Tass Russian News Agency v. Russian Kurier, Inc.). If something from the United States is copyrightable in both the United States and Sweden, then Sweden uses the USA law for determining the copyright holder, unless the copyright was transferred through some means not considered to be a valid means of transfer of copyright under Swedish law (see NJA 1998 s. 838). --Stefan4 (talk) 21:28, 16 September 2013 (UTC)

•  Keep Neutral We have a reliable source stating that in the US x-rays are not considered photographs and are intelligible for copyright. We have no reliable sources saying that Swedish courts have come to a different conclusion. In the absence of such, I don't believe it is reasonable to assume or be concerned that they have come to a different conclusion. So any comment on the issues of photographs or work-for-hire, etc in Sweden are irrelevant if the object itself is not in fact copyrightable. Though it is possible for Commons editors to construct their own interpretation of copyright law that goes either way, we all know that copyright law does not follow common-sense and cannot be constructed from such. We should not delete images on the basis of unlikely imaginary laws, particularly so when the consequence of doing so would be to remove nearly all x-rays and scans from Commons. Colin (talk) 21:40, 16 September 2013 (UTC)
  • I can't give you any court decision but looking through the web search results for German law, which has a similar article compared to the Swedish Article 49a, there is consensus that x-ray pictures are protected: [3] [4] [5] [6]. It simply looks like this fact is unchallenged. -- Rillke^(q?) 23:05, 16 September 2013 (UTC)
  • We don't need case law to confirm that this image is copyrighted if there is no reliable source interpreting the Swedish law differently than what is written in the act and we have several cases from a country (Germany) with similar legislation. The burden of proof is on the uploader, who should provide evidence that the case law in Sweden differs. --Eleassar ^(t/p) 07:07, 17 September 2013 (UTC)
    • It depends on your starting point-of-view. If you start with the (US belief) that x-rays are not photographs and are intelligible for copyright, then the burden of proof is on the deletion-requester to show that Sweden is different. To think otherwise would allow for anyone to invent imaginary laws in small non-English-speaking countries and demand deletion because evidence to the contrary can't be found. However, if the German situation is opposite then things become less clear. The sources given (in as much as I can follow their translation) aren't "cases" but merely web pages discussing photographs and copyright and which happen to mention x-rays. One can certainly create a work-of-art with an x-ray, even in the US. It would be much preferable to have a reliable source describe a real case where a radiology image was held to be copyright. I would accept this even if in Germany rather than Sweden. Also what would be valuable would be to know how publishers deal with such images (as James notes below). It seems to me it wouldn't be that hard for us to find a Swedish editor to write an email to a Swedish publisher. It would be useful for other countries too. Such publishers would be in a position to know far more than a bunch of Commons users. Colin (talk) 08:55, 17 September 2013 (UTC)
•  Keep What is the original intended purpose? Does that mean that no radiology textbooks get published based on Swedish X-rays as they are typically written by radiologists and not written by X-ray techs? That would be the case if the only original intended purpose was for patient care? But I would argue that publishing on Wikipedia is educating the next generation of physicians and this is one of the intended original purposes. My profession is one with apprenticeship and teaching requirements are in my contract.

There have been a bunch of discussions to delete radiological images, and this is just a continuation. Some, mistakenly IMO, feel that radiological images from all countries should be deleted. There is no case law regarding this issue. We need to have a movement wide discussion if people are going to continue to press for deletion. James Heilman, MD (talk) 21:48, 16 September 2013 (UTC)

We are discussing a particular image from a particular country (Sweden). The Swedish act is clear in its Article 49 a. and the situation is directly comparable to Germany, the neighbouring country with similar legislation. The burden of proof is on the uploader, who should provide evidence that the case law in Sweden differs / X-ray photographs are not copyrighted in Sweden. --Eleassar ^(t/p) 07:07, 17 September 2013 (UTC)

One can also find sources that say they are not copyrightable. Data is not copyrightable, only style is copyrightable. There is no style in an X ray. This ref state that scientific data (such as Xray diffraction) is not copyrightable. This is the same situation.[7] James Heilman, MD (talk) 08:15, 17 September 2013 (UTC)

This source discusses the American, not the Swedish law. --Eleassar ^(t/p) 08:29, 17 September 2013 (UTC)

This is the case in all countries. My Swedish is not good enough to find Swedish sources. But they have books of Xrays so obviously the case is the same. James Heilman, MD (talk) 08:31, 17 September 2013 (UTC)

It is not, because per Rillke above: "looking through the web search results for German law, which has a similar article compared to the Swedish Article 49a, there is consensus that x-ray pictures are protected: [8] [9] [10] [11]. " --Eleassar ^(t/p) 08:33, 17 September 2013 (UTC)

Wikipedia is not a reliable source. Medical X-rays are NOT photographs. They are more like x ray crystallography and are scientific data. Thus is not copyrightable. "The guiding principle is that the atomic positions in natural or synthetic crystals are not copyrightable." [12] and this is true everywere James Heilman, MD (talk) 08:55, 17 September 2013 (UTC)

Did you eventually realize that Eleassar cited 4 (four) different sources, only 1 of which is Wikipedia? Same claim for dental x-rays[13]. --Túrelio (talk) 09:01, 17 September 2013 (UTC)

None of the sources are particularly good. James Heilman, MD (talk) 09:03, 17 September 2013 (UTC)

That's your (probably somewhat biased) claim. Things in other countries are not all the same as in the US.

Just take note that - at least in Germany - x-ray images are doubtless considered as copyright protected. Even though they are categorized only a "Lichtbilder" (simple images), they are protected for 50 years after publication or creation. --Túrelio (talk) 09:14, 17 September 2013 (UTC)

Wikipedia is not a reliable source, but this is not Wikipedia and there is no reason to doubt what Rillke told us. Unless you provide a clear and specific source stating that medical X-ray images are not protected in Sweden, significant doubt that the image is free remains, and per COM:PRP this defaults to delete. --Eleassar ^(t/p) 09:06, 17 September 2013 (UTC)

Ah so Wikipedia is a reliable source on Commons. James Heilman, MD (talk) 09:46, 17 September 2013 (UTC)

Eleassar, you are simply wrong that James needs to prove a negative. Please try to consider things from other people's viewpoints. I agree the sources are poor. This is not something that is impossible to find out. Scientific, medical and dental publishers must deal with it all the time. This image has been on Commons and is a Featured Picture and in use on Wikipedia for five years. Let's not get all wound up and bad tempered trying to delete it in a hurry. The question over copyright of radiology images in various countries is one Commons needs to discover from good quality sources that deal with this specific subject. I suggest we contact Elsevier, who are pretty international. I'd be happy to write them an email. Perhaps someone could consider contacting someone else in the hope that one of us gets a reply. For my own opinion, as much as it is utterly worthless, I don't see the difference between an x-ray and a school photograph: subject queues up to sit on a spot and the "operator" presses a button. But I also don't believe copyright law follows common sense. Colin (talk) 09:29, 17 September 2013 (UTC)

Great, so because there is no clears laws surrounding X-rays we should simply delete them all. However none of what is at COM:PRP applies to this situation. I guess those of us interested in medical images should consider going someplace else.

No one has any interest in following what the rest of the publishing industry dose? James Heilman, MD (talk) 09:46, 17 September 2013 (UTC)

No, but I also don't have to prove the positive. Per COM:EVIDENCE, significant doubt is enough and there is plenty of it. I really would like to know what can the industry tell us about the copyright status of medical X-rays images in Sweden. --Eleassar ^(t/p) 09:49, 17 September 2013 (UTC)

Commons needs confident know-nothings like a hole in the head. Sorry Eleassar, but a bunch of web pages that wouldn't pass WP:V don't raise "significant doubt". Amateur lawyers doing Google searches can probably prove just about anything, in much the same way as amateurs doing PubMed searches of abstracts can prove some drug treats or kills whatever they want to say. There are thousands of people who's day job it is to know whether they need to get copyright on images and who to contact: they work for professional publishers. IMO it is about time Wikimedia hired professionals to deal with this crap rather than have us squabble over it. But no, then they'd have to take responsibility for the content, which they wouldn't do. Let's park this till someone comes up with something better than what Google turned up that morning. Colin (talk) 10:00, 17 September 2013 (UTC)

May I just comment that personal attacks are not welcome here and may get you blocked? Dear Colin, these are references to reliable sources (if you not count Wikipedia in), and how many (reliable or unreliable) sources stating the opposite have you produced? None. --Eleassar ^(t/p) 10:04, 17 September 2013 (UTC)

You seriously need to chill, Eleassar. Colin (talk) 10:23, 17 September 2013 (UTC)

Nobody in this discussion has provided any evidence that radiology images like the subject of this DR are copyright in Sweden. In that regard, we are all "know nothings". Some of us are more confident we are right than others. Whether that confidence is justified or helpful is a matter of opinion. I think, in the matter of copyright law, confidence in the absence of knowledge is generally deeply unhelpful. It is a simple matter for this lack of knowledge to be resolved. We can make more effort than simply putting some search text into Google. Colin (talk) 10:29, 17 September 2013 (UTC)

•  Keep. I see no compelling copyright problem here. Rillke and JMH both make valid observations: there may be countries in which there is uncertainty; yet the publishing industry position is that they are not under copyright. More nuanced data from a global medical publisher would be welcome; but in the absence of clear guidance from them, we should keep all such images. Perhaps with a special "radiological image" category. --SJ+ 10:35, 17 September 2013 (UTC)

Thanks SJ. Good suggestion that we put these in a special category. James Heilman, MD (talk) 10:39, 17 September 2013 (UTC)

• One last comment and than I will leave this to others. If we are going to be both assume that X-rays are copyrightable and be super cautian than we will need to get permission from all 10 potential copyright holders (ordering physician, patient, radiologist, hospital, government, X-ray tech, machine manufacturer, software programmer, the Queen of English in my jurisdiction, and shareholders of hospitals in other jurisdictions). This will eliminate all radiological images from Wikipedia. Last time I wrote the Queen asking her to release content under a CC BY SA license she didn't respond. If the Wikimedia movement takes this stance I will go elsewhere. Should we allow a couple of admins on commons to make this call? I don't think so. James Heilman, MD (talk) 11:09, 17 September 2013 (UTC)

James, you might have had more luck with the Queen if you weren't trying to copy £20 notes at the time. Colin (talk) 11:53, 17 September 2013 (UTC)

Yah maybe... James Heilman, MD (talk) 12:15, 17 September 2013 (UTC)

Permission by the copyright holder is sufficient. Copyright holder in Europe = Author = Photographer = The one who took a picture at a moment = The one who pressed the button. You cannot transfer copyright in most European countries. We have the concept of exclusive usage rights (and this is not done by default but needs a contract) that can be granted.

However, I have to admit that I don't know how CT imaging is usually performed; if it is fully automatic (including the timing when the pictures are recorded, which is automatically calculated by sensors based on the patient's position or so), then there would be no copyright holder because it would be entirely machine-created. -- Rillke^(q?) 21:12, 17 September 2013 (UTC)

Your description of copyright owner is incomplete and thus not useful. See Works created for an employer (UK) for example. Earlier Stefan4 said it was different in Sweden. And in the UK, the law for Commissioned works seems to have changed around 1989. So it is complex. Colin (talk) 07:26, 18 September 2013 (UTC)

It is not. First, a scout image is obtained, then the orientation and the thickness of the slice is adapted, then the final image is taken.[14][15] --Eleassar ^(t/p) 21:41, 17 September 2013 (UTC)

•  Keep because of precedent in the Swedish publishing industry. Medical images of patients have been published in Sweden before. No one has presented any publication from Sweden in which a medical image is reproduced with a note of permission from any of the technicians who executed the order for the image. Here are some images from the en:University of Gothenburg which do not show patient permission technician permission as an example of a case which presumes that such photos do not need such permission. I would like for someone who asserts that technicians are copyright holders to show examples of cases in which photos are published with permission of the technician operating the imaging equipment. Blue Rasberry (talk) 13:54, 17 September 2013 (UTC)

  Here are some more from Läkartidningen and in Swedish - Feokromo­cytom, Snabbspår jodkontrast­medel Can a Swedish speaker check these articles and comment on the image credits assigned? — Preceding unsigned comment added by Bluerasberry (talk • contribs)

Though explicit evidence from Swedish law or court decisions would be surely welcome (I asked Stefan4 for it), your examples aren't that convincing as all of them are self-publications by the researchers themselves. In such a scenario, a "thanks" in the Acknowledgements section of the paper is usually considered as sufficient, in case the images hadn't been taken by one of the authors anyway.

In addition, your other point about "patient permission" is not relevant here, as this discussion is about copyright, not about personality rights or privacy. --Túrelio (talk) 14:44, 17 September 2013 (UTC)

Examples would be easy to find. A little hard for an English speaker to find them in Swedish but would be simply if one simply went down to a Swedish medical library and pulled up some case reports. The image in this case is super easy to recreate. I order a good 10 CT heads a week. At least half of them are normal like this one. The bigger point is what do we do when commons admins try to wipe Wikimedia Commons clean of all X-rays when there is less than the required 10 OTRS permissions emails from all 10 potential copyright owners for each image? James Heilman, MD (talk) 15:09, 17 September 2013 (UTC)

Sorry, I meant technician permission. "Patient permission" is not relevant here - I was thinking of something else. I do not understand why these examples are not convincing. Are you suggesting that the researchers publishing the paper are also the copyright holders of the images? Why do you call them "self-publications"? It would be unusual for a medical researcher who is not an imaging specialist to do their own imaging, would it not? I know nothing about the practice of acknowledging copyright by saying "thanks" without explanation - I think it is typical to give a photo credit when one is justified. Would you disagree? Blue Rasberry (talk) 15:17, 17 September 2013 (UTC)

By "self-publications" I meant that these papers were published in scientific journals by the researches themselves. I.e., the x-ray images in question were rather surely created in their own departments. Except of freely licensed journals (rare), in such a case copyright is usually not in consideration. It is a alltogether different situation than, let's say, a book in which a third person, who is not from the author group or the same university, would publish such images. If even in such cases, there would be no permission/courtesy mentioning, this would be more relevant for our question. --Túrelio (talk) 15:25, 17 September 2013 (UTC)

Just above I provided some academic journal articles published in Läkartidningen by a third party called sv:Sveriges läkarförbund. This organization is taking other people's copyrighted content and republishing it somehow, and it is to be expected in academic publication that contributors are credited in articles. Can we get a Swedish reader here? What photo credits are mentioned in these articles? Blue Rasberry (talk) 15:43, 17 September 2013 (UTC)

I had a look at those articles in Läkartidningen, and indeed it's published by a very respectable organization. Still, I actually didn't see any source or permission at all in the article for those images. It's not an unusual situation in Sweden though, because I think it's practically more relaxed when it comes to copyright. Mikael Häggström (talk) 19:16, 17 September 2013 (UTC)

I am interpreting the lack of statement about copyright as supporting evidence that there is not a precedent of applying this kind of copyright to technical medical images in Sweden. Internationally we are also lacking evidence that anyone has asserted copyright for routine medical imaging. I remain feeling that there is not sufficient evidence to say that copyright should be applied in this case. Blue Rasberry (talk) 19:58, 17 September 2013 (UTC)

•  Keep without prejudice to another deletion discusison if/when better information becomes available. Fundamentally, a medical image is the result of a prescribed, automated (may be considered "mechanical") process and no creative art is involved or intended. If multiple radiographers prepared the same prescribed imaging of the same subject, the expected ideal result would be that the resulting images would all be identical--no creativity is involved, intended or desired. In contrast, if multiple photographers were all to photograph the same subject, the expected result would be that each image would be different and reflect the artistry of each photographer. So, fundamentally, a medical image can't be considered in the same category as a photograph, even if the technology used to produce the results of each are similar. As a result, I agree with Colin and James that the sources pointed to so far aren't directly relevant enough or authoritative enough to cast the significant doubt required per COM:PRP. I think they cast a little doubt, but not "significant". It's also instructive to look at what other publishers have done, and they use medical imaging without notes of license--I think this points to some doubt that such license releases are required. Zad68 (talk) 15:42, 17 September 2013 (UTC)
• About this "a process analogous to photography": People may have forgotten, but we're not talking about an X-ray here. We're talking about a "CAT scan". There's no film. There is no "light". What it produces is a bunch of data that is later assembled in multiple different ways to produce images. There's really nothing analogous to a photograph here. WhatamIdoing (talk) 16:23, 17 September 2013 (UTC)

Light is not that much different from x-rays, which are used in CT imaging. --Túrelio (talk) 16:31, 17 September 2013 (UTC)

Well, to be honest, apart for which part of the spectrum we chose to be sensitive to, there's little difference between "bunch of data that is later assembled in multiple different ways to produce images" and the complex processing involved in producing a JPG from raw sensor data in a camera. Just because the CT scan stitches images together doesn't change things any more than when I stitch images together with Hugin to create a panorama -- both produce a 3d mathematical model and generate a 2d image from it. One might have a harder time comparing MRI with photography, however. But we are all trying to use our cleverness to explain why we think CT is or isn't copyright. Yet copyright rules defy rationality. We must accept the reality of the law no matter how silly it may be. And where there is no case law to draw on, we may do well to follow best industry practice. We need to watch not to draw conclusions about radiography works from documents discussing artistic works (whether generated by light rays or x-rays). To do that confuses the medium with the work. -- Colin (talk) 19:01, 17 September 2013 (UTC)

I don't speak Swedish, but as explained above, Germany has similar legislation and X-ray images are considered copyrighted there (in addition to the already cited sources, see also e.g. [16] - last paragraph). Per analogy, they must also be presumed to be copyrighted in Sweden unless we have reliable evidence to the contrary. Industrial standards can't be seen as reliable, they may simply mean that no-one particularly cares.[17] However, this does not make these images free. --Eleassar ^(t/p) 22:10, 17 September 2013 (UTC)

• About artistry

“	Copyright law protects the rights of writers, composers, painters and other creative persons to control the use of what they have created.	”
—Infobox about Copyright Law, http://www.government.se/sb/d/2707/a/15195

There is a law cited at the top of this page which starts by saying "Anyone who has prepared a photographic picture has an exclusive right..." I feel that photography in this sense is stated in this law to apply to creative persons, not technicians, and the law itself is called "Act on Copyright in Literary and Artistic Works". A medical image is supposed to be non-artistic. Blue Rasberry (talk) 20:05, 17 September 2013 (UTC)

•  Keep per Bluerasberry and James Heilman. And BTW just what is the art in a radiographer's pressing a few buttons formulaically when a medical specialist (i.e., the subject) has conceived and structured the imaging procedure? Tony (talk) 20:16, 17 September 2013 (UTC)
  • In which case the law in itself is inconclusive because what's artistic taking a camera and pressing the button? And is is really creative creating a database? You know that databases are also covered by copyright law in many countries (c.f. Article 49.) while their creation is usually pure craftsmanship. The law was amended too often without checking actually their scope. -- Rillke^(q?) 21:00, 17 September 2013 (UTC)

If everyone wanted identical images then everyone would just buy a postcard.

@Tony, there is not supposed to be art in what a radiographer does. Your plumber does not have a copyright to the sculpture he built under your sink and your electrician has no copyright on the pattern woven in your fuse box because these are technical tasks which are supposed to be done according to specification and without artistic or copyrightable input. @Rillke, the law itself is clear that taking photos with a camera is artistic. Also every picture of the same subject - such as the Eiffel Tower - will be unique, and even if it is photographed 10 million times any human will be able to look at any two photos taken at different times by different people and be able to instantly tell that they are different images. In creative works people celebrate the tiniest differences, focus on them, and become emotionally invested in the act of making very similar images to what already exist. In radiography everyone wishes that any two images of the same subject would be identical, and it is ideal and the basis of medical science that when different technicians at different times perform the same imaging they should be able to collect the same non-copyrightable data in the form of a machine visualization. The idea is to pull data out of a system, not do creative work. In the law you cited it says that for a database to be copyrighted significant work has to go into the process, but in medical imaging this seems not even possible because unlike with art, beyond the minimal level of work there is nothing significant which is possible to add to performing medical imaging. No one has provided any sources or supporting evidence that the law has ever restricted use of such images under copyright. Some supporting evidence has been provided in the form of examples showing that this is not done. Blue Rasberry (talk) 01:23, 18 September 2013 (UTC)

Yes architects get copyright but builders don't. Techs are much more like builders than architects. James Heilman, MD (talk) 01:37, 18 September 2013 (UTC)

Let's pretend that people held a competition in which they would try to copy a known pd painter. Most of them except for the most skilled ones would fail, and all of them would create a work that would be copyrighted as original. Here also, they try to do it in a standard way, but the selected thickness of the slice, the area, the gantry angulation, scan delay time after contrast administration etc. ([18]) and other parameters must be tailored to an individual patient. Not two brain scans are exactly the same. It has also been explained above that the Swedish law clearly states that any work analogous to photography is copyrighted, and that there is not much difference except for the wavelength between a CT scan and a photograph. It is simply incorrect to say that no one has provided any sources or supporting evidence that the law has ever restricted use of such images under copyright:

• "Auch Bilder, die mittels Infrarotlicht oder Röntgenstrahlen entstanden sind, gelten in diesem Sinn als Lichtbilder." (Also images that are created using infrared light or X-rays are considered light images [i.e. copyrighted])[19]
• "Röntgenbilder unterfallen als Lichtbilder dem urheberrechtlichen Leistungsschutzrecht." (X-ray images as light images are an object of copyright.)[20]
• "Das Lichtbild selbst ist mittels "strahlender Energie" herzustellen, dazu zählt die herkömmliche Fotografie mittels eines strahlungsempfindlichen stofflichen Verbrauchsmediums (Dia- oder Negativfilm, lichtempfindliche Stoffe), Röntgenbilder, Flug- oder Satellitenaufnahmen und dergleichen, wenn der Hersteller, also der Fotograf, in irgendeiner Weise auf den Herstellungsprozess eingewirkt hat, so dass ein Mindestmaß an geistiger Leistung bei der Herstellung erforderlich war, etwa durch Festlegung der Aufnahmebedingungen des Urbildes." (The light image itself is created by "radiation energy". This includes the traditional photography ..., x-ray images, aircraft images and satellite images, and similar, where the creator, i.e. the photographer, has influenced the creation process in any way that requires a minimum standard of spiritual input, e.g. by setting the recording conditions of the original image.)[21]
• [22]: "Das Bildmaterial unterliegt dem Urheberrecht, das bedeutet, das ist Eigentum der Radiologie." (The images are copyrighted, this means they are the property of the Radiologie department.)

These sources relate to the German situation, but it is arguably directly comparable to the Swedish law, because the two copyright laws contain the same clauses. We have considered aerial photographs and satellite images copyrighted, and in what way do they differ from the craftsmanship? On the other hand, which examples do you think, Rasberry show these images are not copyrighted? If you mean the industry, I'm sure we all know numerous copyright violations (i.e. "similar stuff exists") can't change the law. Just think of the FOP clauses which have in many cases not been respected by it. --Eleassar ^(t/p) 07:14, 18 September 2013 (UTC)

"that there is not much difference except for the wavelength between a CT scan and a photograph" This is the sort of reasoning where we get unstuck. We really have to stop synthesising law from components and snippets. Yes there are similarities between an x-ray and a photograph : rays of "light" on a "light"-sensitive plate or sensor for an "image". But an x-ray isn't an image any eye can see. An electron microscope forms an image as does a MRI scanner, but neither use techniques remotely like photography. Is the waveform on a sound-spectrum copyright? Perhaps the waves on my EEG are copyright? That's a picture - someone placed the electrodes on my head and pressed a button to start recording. If someone drew it it would be copyright. Is a sonar mapping of the sea-bed like a "photo"? Going to CT changes things again. In some ways it seems more like putting a document into the sheet-feeder of a photocopier and pressing "go". Really the decision over whether these are copyrightable acts count be argued either way endlessly and for ever and the arbitrary decision is for the courts to make not us. We mustn't assume that just because one document says "x-rays" can be copyright, this applies to all x-rays -- like saying printed, handwritten or etched writing are all copyright so therefore all documents are copyright. Colin (talk) 09:27, 18 September 2013 (UTC)

Love the comparison to ECG. You are exactly right, these are images made by waves and pushing a single button, exactly the same as CT and X-ray. It produces a picture. I guess we need to delete all these two now. As I now I have not gotten permission from any of the techs to upload them. Now I sometimes push the button but do not hook up the leads? Who gets copyright in that case? This is great we are all lawyers now :-) James Heilman, MD (talk) 09:52, 18 September 2013 (UTC)

This 2006 legal text says "the patient information itself, however, is generally thought to belong to both the provider and the patient" X rays and CTs are patient information. When a nurse tags a temperature who owns that? When one publishes a case study they do not need consent of the nurse to publish a persons temperature? James Heilman, MD (talk) 08:30, 18 September 2013 (UTC)

A temperature is a single piece of data (not a database) which is not eligible for copyright. If the nurse would take a photo of the measuring device, the nurse would own the copyright of the photo in Sweden and in Germany. -- Rillke^(q?) 10:01, 18 September 2013 (UTC)

No they take dozens of these and put them in tabular graphs in the ICU. More or less a little database. James Heilman, MD (talk) 10:16, 18 September 2013 (UTC)

I assume that a publication of a case study usually does not contain ten thousands of records. -- Rillke^(q?) 23:22, 19 September 2013 (UTC)

By the way stating that the X-ray is owned by the X-ray tech is accepted by no one in the world. It is so silly. And yet we continue to discuss this as a possibility, like somehow if enough Wikipedians state it is so that will make it so. I would love to see one bit of evidence that supports this has ever been the case. It would be like saying that if a nurse takes a temperature she owns copyright to that number and a physician must get signed permission to publish that data as a case report? Taking a temperature is just as hard as taking an X-ray. What about the lab techs that generate the blood analysis, do they own the copyright on the numbers their machines generate? What about the person who drew the blood? James Heilman, MD (talk) 08:43, 18 September 2013 (UTC)

Colin makes a great point regarding what the publishing industry does. For content that is author-supplied "it is up to them [the authors] to sort out permissions and copyright". The journals, with their impeccable ethical standards, simple get the authors to sign a form and wash their hands of it. I have signed these forms a few dozens times without much though.James Heilman, MD (talk) 09:02, 18 September 2013 (UTC)

I really do not see the analogy. An ECG is not a fixation of light comparable to a photo, whereas an X-ray image is. In the same manner, I also don't see any analogy as to the process of creation between a photo/X-ray and a blood test or a temperature measurement. I also do not see what can the American legal system tell us about the completely different European copyright legislation. Of course, the above-cited references, related to the comparable German legislation, are just irrelevant... --Eleassar ^(t/p) 10:03, 18 September 2013 (UTC)

If anything, in regard to pressing a button, a CT/X-ray may be compared to satelite images, like this one. These are considered copyrighted. Yet it has been explained that several adjustments must be made before a button may be pressed and possibly also afterwards.[23] --Eleassar ^(t/p) 10:09, 18 September 2013 (UTC)

Okay so just to be clear you are stating that the tech owns X-rays, CT's and MRIs? What about nuclear medicine imaging? James Heilman, MD (talk) 10:20, 18 September 2013 (UTC)

Based on the references cited above, Article 49a of the Swedish copyright act and the comparability of the German and Swedish copyright law, I'm stating that X-rays and CTs are most probably copyrighted in Sweden. Per "Das Lichtbild selbst ist mittels "strahlender Energie" herzustellen" (The light image itself is created by "radiated energy"), this is probably also the case for the MRIs. Per what Stefan4 told us, the employee (the technician) is the copyright holder in Sweden. --Eleassar ^(t/p) 10:33, 18 September 2013 (UTC)

An eeg is created by "radiated energy" - electromagnetic fluctuations on the surface of my brain are picked up by sensors spread over my scalp and turned into an image by a pen on paper or displayed on a screen. There's a creative act (however small) in arranging those electrodes. An MRI is closer to how a TV creates a picture from the radio signal broadcast by the antenna -- and me turning the TV on is not a copyrightable act. There's certainly no part of the electromagnetic spectrum hitting and being reflected/absorbed/diffracted/focused by the patient's body. Just as I can use a keyboard to create a non-copyrightable document (a list of house numbers in my street) or draw a non-copyrightable pictures (a 2d molecular diagram), it is possible to use x-ray to create a non-copyrightable image. Just because some document says documents and pictures created by keyboard or pen can be copyrightable doesn't mean all documents and pictures created by keyboard or pen are copyrightable. Please let's stop trying to work out copyright from snippets of partly-relevant and completely-irrelevant sentences scraped off some web page. We need to find an alternative solution to this problem. Colin (talk) 10:52, 18 September 2013 (UTC)

Possibly, however the subject of this image is a CT. --Eleassar ^(t/p) 10:54, 18 September 2013 (UTC)

So what we have is:

1. Xrays might be copyrightable in Germany
2. because Sweden often has similar laws to Germany than this means they might be copyrightable in Sweden
3. we think that in Sweden the person who pushes the CT button might then hold the copyright

Sounds like a very far stretch of logic and a great deal of synthesis. So far that I find this argument more or less worthless. I can invent equally plausible situations were three laws / presumptions patched together would result in the deletion of EVERY single image on Commons.

Okay now let me try one: sculptures are copyrightable in some places, some places have laws similar to other places, building are sort of like sculptures, pictures of building therefore might be copyrightable, the person who builds the building owns the copyright, therefore we need permission from the builders before we can have pictures of building on Commons. James Heilman, MD (talk) 11:08, 18 September 2013 (UTC)

• Keep. In order to be protected by copyright or by related rights any work must be "the author's own intellectual creation" (a quote from the German copyright law). Since routine medical images are obviously not "intellectual creations" of radiographers, it follows that this image is not protected by any copyright or related rights. Ruslik (talk) 11:33, 7 October 2013 (UTC)

How could it not be an intellectual creation if the following applies: "The selected thickness of the slice, the area, the gantry angulation, scan delay time after contrast administration etc. and other parameters must be tailored to an individual patient." The intent is to show the relevant structures well, therefore the image must be optimised, tailored to an individual patient (it is not enough to just set predefined values of parameters that are in all cases the same). This is exactly stated in [26]: "one should not underestimate the diagnostic gain that can be achieved by optimizing scan parameters". --Eleassar ^(t/p) 11:56, 7 October 2013 (UTC)

Eleassar, you are not only amateur lawyering here but you're the judge too it seems. Please, these are things for someone with a law degree, a curly wig and professional experience of the subject matter to decide. Commons editors can argue both ways endlessly forever. It isn't getting us anywhere. Colin (talk) 12:33, 7 October 2013 (UTC)

I don't see a persuasive argument for the claim that medical images are not intellectual creations, and I also don't find this quote ("the author's own intellectual creation") in the German copyright act. That's all I wanted to say. Thank you. --Eleassar ^(t/p) 12:39, 7 October 2013 (UTC)

Well, the my point is that whether anyone can persuade you is quite irrelevant. It is time we stop acting like self-appointed judges and get an external professional to decide -- otherwise apply the "I have better things to do with my time than delete perfectly good educational content" principle. -- Colin (talk) 13:18, 7 October 2013 (UTC)

It is called "following standard examination techniques". There is nothing intellectual about them. An appropriately designed medical scanner can do many if not all of these "adjustments" automatically. (See article 2, part 2)Ruslik (talk) 13:23, 7 October 2013 (UTC)

@Ruslik0, in Germany x-ray images are protected as "simple images" by § 72UrhG (as opposed to works, § 2UrhG), which does not require creativity/originality for protection. --Túrelio (talk) 13:50, 7 October 2013 (UTC)

"Only the author's own intellectual creations constitute works within the meaning of this Act." Read again: this act, which includes all articles including 72. Again, "The provisions of Part 1 applicable to photographic works shall apply mutatis mutandis to photographs ...". The part 2 of article 2 of Part 1 applies to photographic works and therefore applies with necessary modifications to photographs. Ruslik (talk) 19:50, 7 October 2013 (UTC)

Reliable sources state otherwise, e.g. [24] (pg. 385): "Germany, Italy and Norway are three European countries that offer protection to non-original photographs. [emphasis mine] Under German law, works of photography ("Lichtbildwerke") are photographs with sufficient level of originality or "artificial craftsmanship", and are subject to the regular copyright term of life plus seventy years. All other photographs ("Lichtbilder") fall under § 72, paragraph 3 of the German Copyright Code ("Urheberrrechtsgesetz"), which provides that for photographs not meeting the originality standard.... In other words, photographs with sufficient originality have the standard life-plus-seventy term of protection, while all other photographs enjoy only a fifty-year term of protection from the date of publication (or, if unpublished, the date the photograph was taken)." --Eleassar ^(t/p) 21:08, 7 October 2013 (UTC)

Here is another article, in addition to those cited above, that states X-ray images are copyrighted in Germany.[25] --Eleassar ^(t/p) 21:34, 7 October 2013 (UTC)

But Sweden is not mentioned. I also just noticed that this image is not in fact a "photograph or product manufactured in a similar manner to photograph". This is a tomographic reconstruction—a set of images (slices) generated entirely by a computer based on information extracted from original X-ray projections (photographs). Since these images are not photographs, they do not fall under the article 72 (or a similar article from Swedish Copyright Law). So, because they as entirely computer generated images lack originality, they are not protected by copyright. So, my final opinion is keep and we do not need to continue this scholastic discussion about German Copyright law. Ruslik (talk) 08:32, 8 October 2013 (UTC)

The same applies to Sweden and to CTs: see my quotes at the end of the deletion request, the relevance of which has been confirmed by a notable Swedish copyright expert. --Eleassar ^(t/p) 08:46, 8 October 2013 (UTC)

Arbitrary section break

Joking aside, we do have a serious pragmatic problem here. When a user uploads a regular photograph they tick a box to say they took it, for example, but we don't require them to send OTRS a receipt for their camera and a signed affidavit from their partner that they were holding the camera at the time or that any Lightroom/Photoshop adjustments were done by only by them. We simply trust them and combined with that place all the responsibility for that trust being misplaced onto the uploader. We're even less careful with uploads from a third-party site like Flickr. In that case, two people (the uploader and the Flickr user) might not be telling the truth or aware of the law. We don't (unlike a regular stock photo site) ask the uploader to sign something and provide contact details so we know where to send the lawyers. We've come to some pragmatic solution that works for a volunteer crowdsourced site with anonymous users.

So here, in the general case, we can't determine for all or even any countries:

• whether a given diagnostic/clinical medical image has copyright at all (x-ray, CT scan, MRI, etc), other than for straightforward photographs.
• who owns the copyright (if any) other than if the uploader took a straightforward photograph of their own free will (not under employment).

A photograph taken by Doc James with his own camera of one of his patients and that isn't being used for the patient's medical treatment/notes will be his copyright and he can upload it provided he has necessary consent. But for the rest?

The solution the medical journals seem to take is to pass all responsibility over to the author (or to any picture agency they use). They haven't solved this problem either -- they've simply arrived at a pragmatic solution. I suggest we do the same. We need to limit this to images where there is at least some chance the uploader has actually got the relevant permissions. So I suggest we require the uploader to have been involved in the image generation -- patient, doctor, radiographer, radiologist, for example. For images uploaded from third-party websites, we should examine their standards for ethics wrt permission/copyright/consent in much the same way as wikipedia examines a publisher's standards for reliability. Possibly we can compile a list of journals and major websites that are likely to be sound. Radiology mages uploaded from just any old random site or Flickr, say, would be deleted. Thoughts? Colin (talk) 12:20, 18 September 2013 (UTC)

Okay, Colin proposes adopting publishing standards, whatever those are. Is there anyone here who suggests that Wikimedia Commons should have a different publishing standard than the medical publishing industry? If we found consensus in articulating decades of precedent in some major medical journals, could everyone here adopt those existing practices when consensus is found that something happens and examples of alternative practices are lacking? I think it would be best to look to history to see what ought to be done rather than try to develop new standards. In what ways might a Wikipedia article different from any other medical publication, and can anyone provide reasons why existing industry practices should not apply to Wikipedia? Blue Rasberry (talk) 13:23, 18 September 2013 (UTC)

Wikipedia standards, hmm, depends. In regards to privacy issues etc., I could agree. In regard to copyright issues, no, as Commons has a stricter copyright policy than :en, for example. Our license/copyright information to re-users must cover uses beyond Wikipedia.

IMO, we have really enough user opinions now. We know that the key question, whether x-ray and similar images are (copyright-like) protected, has different answers from country to country. It's No in the U.S.; it's Yes in Germany (and likely Austria). To get data for Sweden, we should ask legal experienced users on Commons, :sv-Wikipedia or eventually at WMF-legal. --Túrelio (talk) 14:29, 18 September 2013 (UTC)

This isn't an x-ray (like you get for a broken arm) any more than a photocopier takes a photograph. Yes it uses x-rays, but so does a photocopier use light. This is a CT-scan and we simply have no document in any language for any country that says specifically that these are or are not copyrightable. And I doubt you will find one. And if sv-wiki turns up the same amateur-lawyer speculation we have here, then we are no further forward. One the one hand we have the precautionary principle meaning that we must delete nearly all such images due to our (and everyone else's) ignorance of the copyright position. On the other hand we have over-confident amateur lawyers saying yes/no when they really don't know for sure. And WMF-legal will absolutely not give legal advice -- they can only give legal advice to their client for a specific issue the client faces -- and that is WMF who don't upload images and aren't being sued. The most you will get from WMF-legal is the sort of answer we got in the child-regrets-CC-licence saga, where they said the law was unclear, untested and Commons community needs to come up with its own solution. Like in that saga, some said the only option should be to ban under-18 contributors. We didn't consider that acceptable. So if deleting all radiographic images is unacceptable then what do we do? This applies to images taken from published websites too - because ultimately it seems they don't know the copyright position of their own images either. Colin (talk) 15:09, 18 September 2013 (UTC)

The fact that's this is about CT is a side-question to me. Let's first try to find out what is legal/necessary in Sweden if it would be a conventional x-ray. Thereafter we can get more specific. I mean, if x-ray is not protected in Sweden, CT won't be either. --Túrelio (talk) 15:46, 18 September 2013 (UTC)

I'm going to try asking some authors-of-papers-that-have-radiographs to see what their experience is. I had hoped the publishers would say, but they just pass the responsibility onto the authors. I maintain that talking to people who do this for a living is far more productive approach than amateur speculation or WMF-legal vagueness. And it would be great if other people did this for their own countries/languages too. Colin (talk) 16:53, 18 September 2013 (UTC)

Okay have spoken with a publisher, he states "I assume (and the author confirms with his signature) that the author owns all copyright", with respect to requiring signed consent he states "no, we don't ask for that. we assume authors have taken care of this".

Have spoken with one of the most well published authors I know. I asked "When you guys publish an X-ray in a journal who do you say owns the copyright to the X-ray" He replied "Good question... I have no idea" James Heilman, MD (talk) 01:05, 19 September 2013 (UTC)

Diagnostic Xray copyright in Germany

As to the logic described above:

• We have four references stating "X-ray images are copyrighted in Germany," and no references stating "X-ray images are not copyrighted in Germany." > It is reasonable to assume that they are indeed copyrighted.
• The German act contains the clause: "Photographs and products manufactured in a similar way to photographs shall be protected, mutatis mutandis, by the provisions of Part I applicable to photographic works."(Article 72)
• It is reasonable to assume that X-ray images are copyrighted in Germany because of this clause.
• The Swedish act contains a statement with the same meaning: "A picture that has been prepared by a process analogous to photography is also considered to be a photographic picture."
• It is reasonable to assume that there is significant possibility X-ray images are copyrighted in Sweden too, because the clause is the same. Stated otherwise, there is significant doubt that X-ray images are free in Sweden.

The other question is who owns the copyright. The Swedish act states: "A person whose name or generally known pseudonym or signature appears in the usual manner on copies of the work or when it is made available to the public shall, in the absence of proof to the contrary, be deemed to be its author. If a work is published without the name of the author being stated in the manner prescribed in the first paragraph, the editor, if he is named, or otherwise the publisher, shall represent the author until his name is stated in a new edition or in a notification to the Ministry of Justice. "[26] Based on this, it seems that, in regard to this image, the uploader is the representative of the author, and thus may freely license the work. Have I missed something? --Eleassar ^(t/p) 07:05, 19 September 2013 (UTC)

You keep focusing on the medium. Like saying "We have lots of sources saying printed documents are copyright". Let's remember that the reason the US don't regard x-rays as copyright is that they don't see the creative act. The "Article 49a" section quoted at the the beginning of this discussion actually covers "Neighbouring rights", not copyright itself. It is essentially concerned with the term of any copyright and what control the artist has. It isn't concerned with whether X is copyright in the first place -- it is more concerned with different kinds of artists (and a "photographer" is thus defined). So for our purposes, that section is irrelevant and an example of why I'm so frustrated with amateur lawyering.

So, looking at the Swedish Copyright about what is actually protected:

What is protected by Copyright: The Copyright Act deals with the protection of literary and artistic works. this includes, for instance, compositions in speech or in writing, computer programs, databases, musical and stage works, films, photographs and other pictorial art, architectural works, applied art and, generally, the products of all intellectual creativity regardless of the way in which they are expressed. For a product to be considered a work, it must be the result of an author’s own personal intellectual creativity. The product must be unique, for instance in the sense that no two persons independently of each other would have expressed the ideas, facts or circumstances, etc. contained in the work in the same way. This is often expressed in terms of the work having to attain a certain level of originality. This means, for instance, that factual news of the day, or simple forms and the like do not have protection. Copyright protection does not extend to the facts or ideas contained in a work, only to the personal way in which the author has expressed the contents.

Now, look at CT. The person lies down on a "bed" and is strapped into a cage that holds their head in a very fixed regular position. They lie completely still. They are aligned under the scanner and a machine then takes a series of x-rays and computes an image. A good team will create an image that is identical to another team. Any variation from one radiographer and another is an error. Indeed any variation is most likely to be due to the subject moving, rather than operator creativity. If in a month's time you get another CT scan, perhaps by a different radiographer, you expect it to be absolutely identical to the first apart from any change in the size of your brain tumour. So looking at the above section, CT scanning spectacularly fails to be considered a literary and artistic works because "two persons independently of each other" should create the same result.

Btw, I have asked some authors in the US and UK and also the Society of Radiography in the UK. Only one reply so far, from an author, which confirms James experience that permission/copyright of such image is not ever raised, nor has there been any issues. I'm keen to wait for replies from them but consider the above to be pretty damning against CT being copyrightable in any country. Colin (talk) 07:51, 19 September 2013 (UTC)

Now your response is "amateur lawyering" too. It has not been published in a reliable source by a copyright expert. A reply by one author from the UK does not concern copyright law in Sweden. There is still significant possibility that X-ray images are copyrighted in Sweden, which means significant doubt that they're free. --Eleassar ^(t/p) 08:05, 19 September 2013 (UTC)

Oh I fully agree I'm an amateur lawyer, but Eleassar, at least I'm not reading the wrong section in the document. A section who's purpose is absolutely not to define what is copyrightable, but to define one kind of artist and what non-copyright (neighbouring rights) rights they have. Doh! Really, you should admit your gross mistake and move on. I have a reliable source saying that to be a copyrightable work, "no two persons independently of each other would have expressed the ideas, facts or circumstances, etc. contained in the work in the same way" yet this is clearly and demonstrably not the case for CT scanning, where the purpose is manifestly to produce a work devoid of operator variability. The same is true of MRI (which certainly isn't analogous to photography in any way) and to a lesser degree to any x-ray -- there will be more variability but it isn't due to a creative act. Colin (talk) 08:21, 19 September 2013 (UTC)

You're so self-assured, "clearly and demonstrably not the case", "You should admit your gross mistake..." etc. Firm convictions about the copyright law in Sweden based on one or two opinions of authors from the United Kingdom don't make a case, and don't take away the doubt. As to the citation, it also states "for instance in the sense", the citations above ([27] and others) show that people/experts think this is not the only instance. Yes, photographs and works produced in an analogous way (not the medium, the process is relevant!) are dealt with in the related rights section of the act. Does this mean photos are not copyrighted in Sweden?! --Eleassar ^(t/p) 08:31, 19 September 2013 (UTC)

So now you know what it's like dealing with someone assured of their own position based on reasoning you don't agree with. Frustrating isn't it. But I didn't wake up one morning and decide my most important mission was to see to it that Commons and Wikipedia was devoid of all radiography images based on made-up synthesised laws that fly in the face of industry practice and would technically mean all radiographic images in all journals and books were "illegal" because the author's didn't get permission from the radiographer.

My opinion is based on plain reading of the correct section in the copyright law. Eleassar, I'm quite sure an actual artist could create a work of art using an x-ray machine and it would be copyrightable in Germany and Sweeden and they'd have all sorts of neighbouring rights as a "photographer" to exercise control over their for so many years.

You say "photographs are dealt with in the related rights section of the act. Does this mean photos are not copyrighted in Sweden?" You are reading it wrong still and still over-concerned with this irrelevant section - the section is about people not works. "Photographers" are dealt with in the related rights section of the act (and they define a Photographer as someone who made a photograph or did someone similar to that). All this means is that such a person, creating an artistic work that is copyrightable [defined elsewhere], has these neighbouring rights. It is a different section (document) that defines what sorts of work is copyrightable at all. And in this Sweden is no different to other countries.

As for the "for instance in the sense", I think they have confused "i.e." with "e.g." when translating or even in the original (which is an unofficial document). They are just trying to express the same concept in a number of ways to help us understanding. The essence (which is true of copyright in all countries) is that there must be some creative original act due to the personality rather than random variation. The actual creative input can be very small in some countries, but can we not agree that the radiographer in a CT scan is required to not be creative, to not put their personality into the image in any way, to be as regular as a car assembly line in producing the same scan for the same person from one instance or one operator to the next. Colin (talk) 08:54, 19 September 2013 (UTC)

Even if the creative element was a sine-qua-non: as explained above, there is some creative element in CT scans, which may just be above the threshold of originality in the country. ("the selected thickness of the slice, the area, the gantry angulation, scan delay time after contrast administration etc. and other parameters must be tailored to an individual patient."). As far as I know, the intent is to show the relevant structures well, therefore the image must be optimised, tailored to an individual patient (it is not enough to just set predefined values of parameters that are in all cases the same). This is exactly stated in [28]: "one should not underestimate the diagnostic gain that can be achieved by optimizing scan parameters". I'm also not saying that "all radiographic images in all journals and books were "illegal" because the author's didn't get permission from the radiographer." The copyright act states: "person whose name or generally known pseudonym or signature appears in the usual manner on copies of the work or when it is made available to the public shall, in the absence of proof to the contrary, be deemed to be its author. If a work is published without the name of the author being stated in the manner prescribed in the first paragraph, the editor, if he is named, or otherwise the publisher, shall represent the author until his name is stated in a new edition or in a notification to the Ministry of Justice." This is the case in most publications (and, as stated above, in my opinion also actually holds true for this image). --Eleassar ^(t/p) 09:09, 19 September 2013 (UTC)

I disagree that the parameters you mention represent "creative element" or even that they are under control of the radiographer. This is a diagnostic procedure that happens to generate an image rather than a measurement. It isn't a "literary or artistic work". It makes no sense that any country's copyright department is concerned with such works. And indeed this appears to be reality. Nobody is concerned with permission for these images. Except on Commons, where reality isn't important it seems. Colin (talk) 10:01, 19 September 2013 (UTC)

After consulting with a German legal expert on :de and in order to remove a possible source of confusion, I want clarify that the protection by §72 UrhG[29] (copyright law of Germany) for x-ray and similar images in Germany is not copyright sensu stricto, but falls under the so-called Related rights or neighbouring rights (German de: Leistungsschutzrecht). These rights do not have the same strict requirements (individual originality) as copyright, which also explains why the duration of protection is far shorter (50 years after publication/creation in Germany). --Túrelio (talk) 16:03, 19 September 2013 (UTC)

Thank you for the information, and also to your colleagues for having provided reliable references at de:Bildrechte#Röntgenaufnahmen. --Eleassar ^(t/p) 17:09, 19 September 2013 (UTC)

After reading this and the WP article on neighbouring rights and others online, I see I have misunderstood that section's purpose. I apologise to Eleassar. It appears even non-artistic non-creative works can be protected by measures similar to artistic copyright in some countries. -- Colin (talk) 17:50, 19 September 2013 (UTC)

I love proving negatives. What is being asked from us at commons is similar to proving that "God does not exist". In science those arguing the positive must provide the evidence not those arguing the negative. James Heilman, MD (talk) 10:13, 19 September 2013 (UTC)

• We have NO documentation that diagnostic X-rays are copyrightable in Germany. The only decent source says "(1) Photographs and products manufactured in a similar way to photographs shall be protected, mutatis mutandis, by the provisions of Part I applicable to photographic works." Diagnostic X-rays are not manufactured in a similar way to photographs. There is a very strict procedure that the techs must follow. No artistic ability is allowed. They are being done for medical reasons. [30]
• And this by Colin more or less states that they are not copyrightable " it must be the result of an author’s own personal intellectual creativity. The product must be unique, for instance in the sense that no two persons independently of each other would have expressed the ideas, facts or circumstances" [31]
• The three others are simply interpretations of this.

James Heilman, MD (talk) 10:24, 19 September 2013 (UTC)

What do you mean by "Based on this, it seems that, in regard to this image, the uploader is the representative of the author, and thus may freely license the work. Have I missed something?" James Heilman, MD (talk) 10:26, 19 September 2013 (UTC)

Could get the position of medical publishers in Sweden if that would be useful? Or are we still fixated on inventing laws in an attempt to delete all diagnostic X-rays from Wikipedia? On a side note why do some of the admins/editors here hate diagnostic X-rays so much? Why the effort to destroy thousands of hours of volunteers work, when these same volunteers are simply trying to improve people's access to health care information? Is there any documentation of any X-ray tech complaining not just to the WMF but in any country or language about them not getting credit for their image? Has any government / hospital requested the pull down of images? Have any patients complained about the publishing of their X-ray? Why are we inventing a problem that those who have been doing this for a good 100 years have never seen as a concern? James Heilman, MD (talk) 10:38, 19 September 2013 (UTC)

I mean that I am ok if this image stays. I'm sure there are some others copied from German/Swedish websites and books though that should be deleted.

I can't agree that "There is a very strict procedure that the techs must follow. No artistic ability is allowed. They are being done for medical reasons." means the process through which an X-ray/CT image is produced would not be analogous to the process through which a photo is produced. In fact, we have a very good description of why it is analogous.[32] Reasons, artistic ability etc. do not concern the process itself.

No-one is trying to delete all medical images from Wikipedia, and we also don't care about other factors and reasons than COM:PRP, like "The file is obviously common property. It can be found all over the internet and nobody has complained." We're just trying to "build and maintain in good faith a repository of media files which to the best of our knowledge [without any significant doubt] are free or freely-licensed." --Eleassar ^(t/p) 11:19, 19 September 2013 (UTC)

Actually it does looks like an attempt to delete all medical images from Wikipedia. For example we have [33] and others. If as you state the tech owns the image and rule is followed on Commons all radiological images must be deleted and no open source images can be used as open source publishers do not get copyright release from the techs. And I am of course trying to prevent the deletion of all radiological images. James Heilman, MD (talk) 11:26, 19 September 2013 (UTC)

No, because "If a work is published without the name of the author being stated in the manner prescribed in the first paragraph, the editor, if he is named, or otherwise the publisher, shall represent the author until his name is stated in a new edition or in a notification to the Ministry of Justice." The publisher is the uploader in this case, and the photo was not published previously. Therefore, he represents the author. --Eleassar ^(t/p) 11:29, 19 September 2013 (UTC)

Okay so after all this we are good? Does what you state above means that if an X-ray has not been published previously than anyone can publish it and be the author until someone sends a concern to the Ministry of Justice? Does this now mean that you support keep this X-ray and other X-rays submitted by physician and patients as long as they have not been published elsewhere? That is all I have been arguing for all along. James Heilman, MD (talk) 11:36, 19 September 2013 (UTC)

That's true; that's why I've asked whether I'm missing something. I've not checked for other countries than Sweden though. --Eleassar ^(t/p) 11:38, 19 September 2013 (UTC)

So will you restore [34] or should I take it to COM:UDR, after the RfC on this topic? James Heilman, MD (talk) 11:42, 19 September 2013 (UTC)

I can't restore it because I'm not an administrator and because it would be out of process. It will be best if you take it to COM:UDR. --Eleassar ^(t/p) 11:46, 19 September 2013 (UTC)

Point of logic: we have no references at all saying all and every x-ray created in Sweden (or any country) is copyright. We have some sources that say photographs (and things similar to photographs) can be copyrighted. And we have some sources that discussion the "neighbouring rights" that belong to photographs/photographers. There's a logic error being made by people finding the word "photograph" in a ruling on copyright and assuming this applies to all of them in every circumstance. All in fact this does say is that photographs are one of the kinds of things we can copyright, and when they are copyrightable works, here are the various rules concerning them. For example, this says "Protected literary, scientific and artistic works shall include, in particular:1. works of language, such as writings, ... 6. illustrations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and three-dimensional representations." Are all "works of language" copyrightable? No. I can create a document in English containing words and numbers that isn't copyrightable. The actual text matters -- is there anything original in what I did? Are all "drawings" copyrightable? No. I can draw a 2D molecular diagram of a simple molecule and it isn't copyrightable. The actual subject matters. Are all "tables" copyrightable? No. I can create a table of the elements and their atomic weights, for example, and it isn't copyrightable.

As for the "first to publish" clause Eleassar is mentioning (which would be the uploader of our scan if never previously published) I'm quite unfamiliar with that concept. Is it unique to some countries? Is it discussed elsewhere in policy? Colin (talk) 11:53, 19 September 2013 (UTC)

Update: based on clarification by Túrelio above (16:03, 19 September 2013) it appears some countries may protect photographs (and similar) without the need for creative/artistic/originality with "related rights" similar (though shorter) than artistic copyright. It would be useful to know which. I still don't understand the get-out-clause Eleassar has found regarding unknown authors and publishers=uploaders. This seems to me to contradict my understanding of issues such as orphaned works. It would be good to get a legal expert to explain that. I will continue to await further external inputs, particularly from radiographer's societies. While I am now less sure of the copyright exemption for this image in Sweden, my concern remains that we may, in regard to radiographic images, be going above and beyond the reality of professional publishing. To this end, gathering information from those involved in producing, authoring and publishing such images as their day-job is essential IMO for us to come up with a reasonable pragmatic solution. We've had these images (and this one in particular) for many years and they are extremely valuable to us in illustrating many articles. We should be in no hurry to come to a decision. Colin (talk) 17:50, 19 September 2013 (UTC)

Support. While this DR is not unreasonable, it is not in any way pressing, as we have so far no clear evidence whether in Sweden x-ray and similar images are protected as in Germany or not protected as in the U.S. It would be ideal if in the end we would have listing of the protection status (including references) for x-ray images etc. for all relevant countries, similar to Commons:Country specific consent requirements or COM:FOP. --Túrelio (talk) 20:36, 19 September 2013 (UTC)

Support being conservative and not rushing to delete a useful image (and lots others like it) when there is significant doubt there is a copyright problem to start with, there is no pressing need to delete it, it does not seem likely that it will be challenged, and there's ample evidence in the world of professionally published works that it's likely not a problem. Zad68 (talk) 01:48, 20 September 2013 (UTC)

If the law is as you state and in Germany the X-ray techs owns all the X-rays than either there would be a paper trail (and this would be documented and likely be big news) or there would be no radiology textbooks or journals produced locally (which would also be big news). Maybe they do simply buy all their books from other countries with more liberal laws but I somehow highly doubt it. This would mean that this is not the interpretation of laws on the ground. I have a good friend who worked in health care / publishing in Germany for 10 years and will ask her as I see here tomorrow. James Heilman, MD (talk) 00:17, 20 September 2013 (UTC)

I hope that you will be able to provide some additional evidence that the interpretation is incorrect or that the two clauses (Germany: "Photographs and products manufactured in a similar way to photographs shall be protected, mutatis mutandis, by the provisions of Part I applicable to photographic works"; Sweden: "A picture that has been prepared by a process analogous to photography is also considered to be a photographic picture.") must be interpreted differently in regard to medical X-ray images. In accordance with wikimedia:Resolution:Licensing policy, all content is required to be free in the sense of the Free Works Definition, which means "For your work to be truly free, it must use one of the Free Culture Licenses or be in the public domain." However, this image, as I've stated above, may be kept in my opinion per the cited clause. I don't see any contradiction in regard to orphan works. --Eleassar ^(t/p) 16:31, 21 September 2013 (UTC)

The Swedish radiologist stated that he would check with the legal department at his hospital. James Heilman, MD (talk) 18:24, 23 September 2013 (UTC)

In Sweden the protection of "photographic pictures" is not really a copyright but a related right. I believe that since it is not a copyright, the threshold of originality does not apply. It is hard to find sources that give a clear demarcation of what should be classified as a photographic picture. In the Swedish legal tradition, preparatory works to the legislation count as sources of law. In the SOU 1956:25, page 470,[35] it is written that:

I förslaget har såsom föremål för rätten helt allmänt angivits fotografisk
bild. Med uttrycket får i överensstämmelse med tekniskt språkbruk förstås
bild, som uppkommit genom inverkan av ljus på därför känsliga ämnen. I
allmänhet är fråga om synligt ljus. men även bilder som uppkommit under
inverkan av annan strålning, såsom ultraröd eller ultraviolett sådan, röntgenstrålar
o. s. v. äro att hänföra under lagen.

which seems to give protection to X-ray images. I'm not a lawyer, there may be later developmens I'm not aware of etc. Edaen (talk) 13:23, 29 September 2013 (UTC)

Edaen, a sincere thank you for having provided this directly relevant information. This gives significant weight to the claim that X-ray images and other medical images analogous to photographs are protected in Sweden. Since related rights are treated in Commons in the same way as the copyright in the narrow sense and because per en:Related rights "both authors' rights and related rights are copyrights in the sense of English or U.S. law.", we can't keep this image unless the copyright holder sends us his permission or the WMF officially declares X-ray images free. --Eleassar ^(t/p) 22:02, 29 September 2013 (UTC)

And who are these mysterious copyright owners? James Heilman, MD (talk) 01:47, 30 September 2013 (UTC)

Per Stefan4, the employee who takes the image is the copyright holder in Sweden. --Eleassar ^(t/p) 07:09, 30 September 2013 (UTC)

Great so you are saying that the copyright holder in Sweden is the X-ray tech. Would the position of a director of a health care region in Sweden be sufficient to change your mind? And would you like their position in Swedish, English or both? James Heilman, MD (talk) 16:38, 30 September 2013 (UTC)

If it was made before 1994-07-01 the copyright holder can be assumed to be the employer, most likely the relevant en:Landsting. For younger X-rays it is probably the employee. Edaen (talk) 16:51, 30 September 2013 (UTC)

Yes and I would say 99% or more of our X-rays are after 1994. Would me getting a position from a Swedish hospital director and their legal department change anyone opinion? James Heilman, MD (talk) 16:54, 30 September 2013 (UTC)

I agree that on-the-ground knowledge from experts who deal with these images as their job is most valuable. With the caveat that they may be wrong and getting away with it. We need to balance the armchair lawyering against the reality here. Neither side own the Truth. Please guys can we work together on this. And to that end, I don't see this deletion request as a suitable venue for calm discussion among friends. It is adversarial in its whole setup. Let's take our time over this. Colin (talk) 16:59, 30 September 2013 (UTC)

But, on the other hand, maybe the copyright status of X-ray images depends on how far the process is from direct human action. If there is to much machine inbetween it may not count as a photograpic picture after all. See for example this quote from en:Riksantikvarieämbetet which refers to the opinion of a photographers rights lobby:

"Sveriges fotografers förbund ser inte mekanisk scanning som grund för upphovsrätt – produkten kan jämföras med det som kommer ur en övervakningskamera."[36]

Edaen (talk) 17:23, 30 September 2013 (UTC)

I agree with Colin: the opinion of the mentioned director is valuable, but it is only his opinion and must be taken with a grain of salt. Court cases and opinions of renowned copyright experts are much more reliable. It would be of much help if Edaen or some other user speaking Swedish could find some court cases or other reliable material where the issue of the copyright holder on photographs or the images analogous to them has been discussed. Otherwise, unless we have strong evidence to the contrary (an opinion of a respected copyright expert), we should follow the clauses written in the copyright act. Of course, I'd also be interested in the mentioned opinion of the hospital director. In any case, no source states that the person depicted in the image (the patient) would be the copyright holder. --Eleassar ^(t/p) 20:04, 30 September 2013 (UTC)

Some comments about the above

Some comments about the above:

• Anonymous publication: One user mentioned 7 § which states that the publisher represents the copyright holder if the copyright holder isn't know. There is also 38 § which states that the publisher is the copyright holder for things created before 1 July 1994. Right, but you missed 8 §: it's only published if the author consented to publication. You can't usurp the copyright by distributing something anonymously without permission and then claim that you are the publisher and therefore represent the copyright holder. Unless the uploader had permission to publish the image, then the image is unpublished, and if the image is unpublished, then the copyright is represented by the photographer alone.
• Originality: Originality is required for protection under 1 § (protection which lasts for 70 years p.m.a. if the identity of the author is known). Originality is not needed for protection under for example 46 § (protection for sound recordings and films lasting for 50 years from creation), 49 § (protection for databases for 25 years from creation) or 49 a § (protection for photos for 50 years from creation). 49 a § is also extra clear in that it tells that if the photo has originality, then it is protected under both 1 § and 49 a § ("Är en sådan bild föremål för upphovsrätt, får denna rätt också göras gällande.") Similarly, many films are copyrighted as artistic and literary works, but CCTV shots presumably only get the shorter protection due to lack of creativity.
• Related rights: These are treated as standard copyright protection on Commons. For example, we have on numerous occasions deleted sound recordings and films of performances which didn't have permission from the people recording the sound or from the performers. See also the similar COM:IDENT which states that we delete photos of people if the laws of the country of photography do not permit people to use the photos.
• Transfer of copyright: Copyright can be partially transferred to other people (see 27 §), but I don't see why this matters here. For example, the protection given by 2 § (economic rights) can mostly be transferred (but note for example 26 o § which says that the w:droit de suite can't be transferred other than by inheritance), but the protection given by 3 § (moral rights) can't be transferred other than by inheritance. This means, for example, that if I slap {{Cc-zero}} on an artwork I've made, then I can still claim compensation from the droit de suite, as I'm not allowed to renounce my rights.
• Copyright holder for a work for hire: The term "work for hire" is an American term which in the Swedish law only exists for computer software (40 a §). If you request someone to take a photo, and the photo was taken before 1994-07-01, then the copyright belongs to the person requesting to have the photo taken (see 14 § in the lag (1960:730) om rätt till fotografisk bild). If the photo was taken thereafter, then the copyright belongs to the photographer. Special rules apply if you request someone to take a portrait photo, and the rules differ slightly depending on when the photo was taken (see 14 § in the photo law for photos taken before 1994-07-01 and 27 § in the current law for photos taken thereafter). I don't know if you could call an X-ray of a head a "portrait photo". --Stefan4 (talk) 23:40, 25 September 2013 (UTC)

Thank you for having told me what I've missed: "Right, but you missed 8 §: it's only published if the author consented to publication." It seemed like a too simple solution. The publication of this file as PD would therefore require an OTRS-confirmed or othewise independently verified permission by the author himself (or herself), unless we gain some additional evidence that medical X-ray images are not protected in Sweden. --Eleassar ^(t/p) 06:02, 26 September 2013 (UTC)

I did suspect this get-out fix wasn't going to be true. What remains however, that analysis of how copyright law might apply to x-rays and other radiology images appears to be purely academic. Back in the real world (and I use the term seriously, not mockingly), there appears to be no issue whatsoever. Commons is putting self-uploaded images under greater scrutiny than any actual publisher does, and as result, foolishly cripples itself. I have so far found no evidence that real publishers own the copyright to the radiology images they are publishing, and may not even have any documented evidence they actually have any right to publish them at all. They may have some assurance from the authors of papers who sign than they've got all necessary "permission", whatever that may be, but it falls apart when you find out these authors never ask for permission, nor do the radiographers appear to feel it is needed. Enquiries continue, but I still feel Commons needs to find an alternative pragmatic solution from applying purely academic legal speculation to such images. It does us no good to lose all such images (which is the consequence, because we can't even trust open-access published images either) over some purely theoretical issue. Colin (talk) 07:22, 26 September 2013 (UTC)

Looks like we are trying to become the ivory tower. I have spoken with lots of people about this issue, both X-ray techs, journal publishers, the college of physicians and surgeons, published academics and radiologists from both Sweden and other countries, health region administrators and lawyers. Not one of them supports Common's interpretation of the law around X-rays in Sweden or any other country in the world.

Now both Colin and I have done a great deal of leg work. How about those trying to state that the tech owns the image, have you found anyone in the real world who supports your interpretation of the law? James Heilman, MD (talk) 00:12, 27 September 2013 (UTC)

I appreciate your work, but, frankly, I can't trust you on this, because you seem to have the agenda to keep this file no matter what. Colin and you have both demonstrated that you are men of strong opinions,[37][38] but at least Colin has honestly admitted that these do not always hold water.[39] As to the "ivory tower", it is irrelevant if a file is non-free but no one takes this seriously: we have deleted countless non-free images for FOP and other reasons even though there is no evidence anyone takes these issues seriously or is even aware of them. To keep them would go against our policy of COM:PRP and against the Wikimedia resolution. We delete non-free files not because we would be afraid someone might sue us, but because our scope and policies require us to host only content about which there is no significant doubt that it is free. This is meant in the legal sense. Namely, we use the free works definition that states: "In order to be considered free, a work must be covered by a Free Culture License, or its legal status must provide the same essential freedoms enumerated above." etc.[40] --Eleassar ^(t/p) 12:04, 27 September 2013 (UTC)

Which statement don't you trust? I don't appreciate your comment at all, frankly. FoP issues are not at all similar in any way at all. See this for example to see how huge the issue is and how many legal battles and payments are made. There is simply no comparison with radiology images. You are right that commons policy has problems with these images at present. And therefore its policy needs to change. Colin (talk) 12:20, 27 September 2013 (UTC)

The policy has to change? I read this as stating: "This image is not in accordance with the policy." Correct me if I'm wrong. --Eleassar ^(t/p) 12:27, 27 September 2013 (UTC)

Eleassar, do you feel good in yourself right now? You know, the "Imagine a world in which every single person on the planet is given free access to the sum of all human knowledge. That's what we're doing" soundbite? Because I think, in order to save face, you are determined to pursue this to the logical conclusion. If there was a negative-barnstar, I'd be giving you one right now. Colin (talk) 12:37, 27 September 2013 (UTC)

Instead of answering my question, you have decided to go ad hominem. You can still create one or vandalise my user page. If you think this image is irreplaceable, I can tell you it is not. Regards, --Eleassar ^(t/p) 12:51, 27 September 2013 (UTC)

A wise man once said "When a Wikipedian uses Latin, you can be sure they are up to no good". Actually your motivation is absolutely key here and a vital consideration if Commons needs to adjust/clarify its policy. Our policy isn't written on tablets of stone but part of the Wiki like everything else. Our discussion should be about how to fix the problem, not about how to dig in our heals and endeavour to make Commons a little bit worse today than it was yesterday. It isn't about just this image. Colin (talk) 13:04, 27 September 2013 (UTC)

This discussion is not about a single image. This single image is super easy for me to recreate. This is a discussion about a few peoples attempting to delete all diagnostic images from Commons (and maybe all ECGs too). This is more or less an attempt by a few to push out all medical editors. That you find that those of us who have put hundreds of hours into Commons strongly oppose your efforts should not come as a surprise. Neither should our position not to accept the position of a couple of fellow Commoners and our request for broader community input. The fact that some are already claiming that community consensus does not apply to them [41] is disconcerting. But let me assure that "yes it does". James Heilman, MD (talk) 16:47, 27 September 2013 (UTC)

The only consensus that is currently evident to me is that there is more or less significant doubt the nominated image is in accordance with the established policies and the Wikimedia resolution. Feel welcome to gain consensus to change the policy and the resolution, but this requires the involvement of more than just ten editors. As to the solution, the only solution that seems viable to me besides changing the policies is that the uploader sends a valid permission by the copyright holder (per Stefan4, this would be the technician) to the OTRS. --Eleassar ^(t/p) 07:15, 28 September 2013 (UTC)

Please see also the additional evidence about the X-ray images being copyrighted in Sweden that has been posted today by Edaen at #Diagnostic Xray copyright in Germany. --Eleassar ^(t/p) 22:06, 29 September 2013 (UTC)

So do you want to try to develop consensus on Commons that the copyright of X-rays in Sweden and Germany is owned by the X-ray tech? James Heilman, MD (talk) 20:50, 30 September 2013 (UTC)

In my opinion, additional research is needed. --Eleassar ^(t/p) 21:33, 30 September 2013 (UTC)

Okay so what do you propose we do know? And what and how is this additional research going to be carried out? James Heilman, MD (talk) 21:55, 30 September 2013 (UTC)

I'm going to send an enquiry to the Institute for Intellectual Property Law and Market Law (IFIM) at the Faculty of Law in Stockholm (have yet to find the correct person). What questions do you propose? For example:

• Are medical X-ray images, CTs, MRIs, PETs etc... copyrightable in Sweden
• If yes, who is the copyright holder
• ...

--Eleassar ^(t/p) 22:19, 30 September 2013 (UTC)

• Who would one need to get permission from to publish in an Open Access journal under a CC BY license? Is it the X-ray tech, the hospital, the ordering physician or the patient? And if it is the hospital who within the hospital? James Heilman, MD (talk) 23:22, 30 September 2013 (UTC)

Agree these are vital questions that we and the Open Access journals both have or need an answer to. Without them, if we maintain the slim claim these are copyrightable, then the "nuclear option" is the only one for all radiographic images on Commons. Colin (talk) 07:08, 1 October 2013 (UTC)

I've sent an e-letter to prof. Marianne Levin. I hope that she will answer soon or at least point us to someone who will. If and when I get her reply, I will let you know and will archive it in our OTRS system. --Eleassar ^(t/p) 07:10, 4 October 2013 (UTC)

Professor Levin has expressed her interest about the matter and has stated that she needs to think and talk to her colleagues about the issue, so I will notify you when she sends me her final reply. In the meantime... the definition of "process analogous to photography":[42] "... radiography and other radiation recording techniques (such as X-ray radiography, gamma radiography, autoradiography) - which, in general, involve the recording of subsurface features of objects - are processes analogous to photography. Here, the source of the recording of images is not light but radiation, the techniques, however, are analogous to the techniques of photography. At the other end of the spectrum, there are then such picture-generating processes about which there could be serious doubts whether they are still analogous to photography or whether they are already beyond that category. The so-called nuclear magnetic resonance technique by means of which pictures are taken through scanning molecules, for example, in a human body that has been placed in a very powerful magnetic field (under the effect of that field, molecules emit radio signals which are recorded as a picture) or the techniques used for electronic microscopes are in that outer border area, although on the basis of an extensive interpretation of the term, they can still be deemed to be processes analogous to photography." --Eleassar ^(t/p) 17:10, 7 October 2013 (UTC)

This citation has been received by professor Levin affirmatively ([43], I can send this to the OTRS, but will wait until she sends us her final answer, which I expect she will) and it is also written in this article (pg. 296) that "MRI images, CT scans, and the like are analogous to photography." This should be taken in consideration when interpreting the relevant clause from the Swedish copyright act: "A picture that has been prepared by a process analogous to photography is also considered to be a photographic picture."[44]. How to interpret the clause is directly evident from the following citation from Cyber Law in Sweden (pg. 96): "Pictures can be protected as photographic works or as photographic pictures. The former requires a higher level of originality; the latter protects all types of photographs, also the ones taken by amateurs, or within medicine or science. The protection requires some sort of photographic technique being used, which includes digital cameras as well as holograms created by laser technique. The difference between the two types of work is the term of protection, which amounts to seventy years after the death of the author of a photographic work as opposed to fifty years, from the year in which the photographic picture was taken." --Eleassar ^(t/p) 21:56, 7 October 2013 (UTC)

Here I post the letter by professor Levin in regard to the Swedish law that I received yesterday (will be sent to the OTRS). It is also available and discussed at Commons:Requests for comment/Xrays#Professor Levin's letter.

"In Sweden, all photographic pictures are protected under the Copyright Act on Copyright in Literary and Artistic Works (1960:729).

Photographic works, i.e., works with an artistic expression enjoy a full copyright protection as any other literary or artistic work under Art. 1 of the Act (cf. the Berne Convention and Art.9 of the TRIPS Agreement). Art. 1 of the Copyright Act gives to the author, or his successor in title, exclusive right to control the work by reproducing it and by making it available to the public; be it in the original or an altered form, in translation or adaptation, in another literary or artistic form or by other technical means.

All other photographic pictures are protected as a neighboring right under Art 49 a of the Copyright Act. In the latter case, anyone who has produced a photographic picture has an exclusive right to reproduce the picture and to make it available to the public. The only requirement is that the picture is the result of a photographic method in an extensive interpretation of the term, what can still be deemed to be processes analogous to photography. The neighboring right lasts 50 years from the year it is taken or published.

While copyright originally can only originally occur by a physical person, the author, the neighboring right to a photographic picture can occur by the act of a physical person (the photographer) as well as by a mechanical device that has instructed a machine to produce photo pictures.

In conclusion, in Sweden no photographic pictures can be reproduced or made available to the public without permission by the copyright holder or the owner of the photographic picture (neighboring) right. In regard of medical images, it is difficult to say who would be the holder of the image right. But if it is a picture taken by an employee at a hospital, it seems most logical that the hospital as a judicial person is the right holder, i.e. not the patient, nor the doctor or the nurse operating the camera.

As all pictures are protected against all reproduction and/or making available. The commercial or non-commercial purpose does not matter for the requirement of authorization, but could be relevant for the question of damages.

Marianne Levin

Professor Ll.D., Ph.D. h.c.

Department of Law

Stockholm university"

RfC

Have started a RfC dealing with the questions here Commons:Requests_for_comment/Xrays James Heilman, MD (talk) 11:35, 27 September 2013 (UTC)

Permission from department granted

I have now gotten permission from the Head of Department of Radiology to have it published under the Creative Commons CC0 1.0 Universal Public Domain Dedication, and it's been verified in the OTRS system. With this permission, I hope we can make a decision to keep the image. Mikael Häggström (talk) 07:01, 20 October 2013 (UTC)

Thanks for your efforts and sorry that you have involuntarily become "involved" in an unnecessarily inflammatory basic discussion. --Túrelio (talk) 07:39, 20 October 2013 (UTC)

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Kept: As the permission, now obtained by the uploader, has been verified by OTRS and seems to be in accordance with the general statement of Prof. Levin about the protection of "photographic pictures" in Sweden. -- Túrelio (talk) 07:46, 20 October 2013 (UTC)