These changes took effect on 1 March 2016.
How does the My Health Record system affect copyright?
Information that healthcare provider organisations upload to the My Health Record system may contain the organisation’s intellectual property. This includes documents (such as pathology reports or specialist letters). In future, the My Health Record may also contain sound recordings and cinematograph films (such as recordings of a person’s breathing for their treatment as a chronic asthmatic or an ultrasound for the treatment of a prenatal condition). This means that any use of that information by participants in the My Health Record system may infringe the organisation’s copyright.
How was copyright previously managed?
To allow the system to operate, registered healthcare provider organisations granted (through the participation agreement) a licence to the My Health Record System Operator to use, reproduce, modify, adapt, publish and communicate health records they upload for the purpose of providing healthcare and using the My Health Record system. That licence also included the right for the System Operator to sub-licence other participants in the system so that health records could be shared as part of providing healthcare and for other system purposes.
Granting this licence did not affect the rights of the copyright owner, and did not allow any other entity to obtain those rights.
What has changed?
The My Health Record System no longer relies on intellectual property licences. Instead, a new copyright exception has been established in the Copyright Act 1968 which provides that information in, or downloaded from, the My Health Record system can be used for certain purposes without infringing copyright.
For what purposes can health information be used without infringing copyright?
Copyright will not be infringed if the information is used by a participant in the My Health Record system:
- for a purpose required or authorised by the My Health Records Act 2012 – this includes providing healthcare to the individual;
- where it is unreasonable or impracticable to obtain the copyright owner’s agreement to the collection, use or disclosure, and the participant reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of an individual, or to public health and safety; and
- in a permitted health situation (as defined by the Privacy Act 1988) – this includes collecting relevant third party information (i.e. a family history) as part of providing healthcare to an individual.
This exception applies to all participants, even those that are not covered by the Privacy Act.
What if I use the information after it has been downloaded from the My Health Record system?
Sharing and use of health information does not just occur in the My Health Record system. For this reason, the exception to copyright continues to operate even after the information has been downloaded from the My Health Record system. This is because, for example, a document might be downloaded by a registered healthcare provider organisation and then passed on to a treating specialist who is not registered with the My Health Record system, and that specialist needs to be able to use and share the information to provide healthcare without infringing any copyright that might subsist in the record.
Does this mean my organisation can upload anything without infringing copyright?
No. Since the copyright exception didn’t commence until 1 March 2016, it is important for organisations to consider when material was created and who created it.
- If the organisation wants to upload material created before 1 March 2016 and it owns the copyright in the material, there will be no copyright infringement so they can upload it.
- If the organisation wants to upload material created before 1 March 2016 and it does not own the copyright in the material, they must not upload it unless the copyright owners grants a licence to the My Health Record System Operator and other healthcare provider organisations to use the material for the purposes of the My Health Record system.
In practice, it is anticipated that most organisations will not upload material prepared before 1 March 2016.
If an organisation uploads information to the My Health Record system that does infringe copyright, that organisation will be liable for any damages.
Why were these changes made?
Intellectual property licences were previously granted through the use of participation agreements. Healthcare provider organisations are no longer required to enter into participation agreements in order to register to participate in the My Health Record system so it was necessary to develop an alternative approach.
An exception was considered the simplest way of ensuring that health information could be used as intended without infringing copyright.
Further, outside the My Health Record system healthcare providers have generally relied on implied licences to share and use health records that might be subject to copyright. This change removes any ambiguity by providing a clear authority.