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Misusing Copyright Laws in Medicine

A questionnaire used millions of times by doctors is now subject to copyright law.

by
Theodore Dalrymple

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January 18, 2012 - 12:00 am
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The Mini-Mental State Examination (MMSE) is a questionnaire that has been used by doctors throughout the world for more than thirty years to test the cognitive function of those suspected to suffer from dementia. It is very simple and quick to administer, consisting of 30 items, and must by now have been used millions, if not hundreds of millions, of times.

Developed by three psychiatrists, Marshal Folstein, Susan Folstein, and Paul McHugh, it was published in a medical journal, but the authors retained their copyright. Nevertheless, the questionnaire’s format was reprinted in many textbooks and manuals, and physicians all around the world still use it without realizing that they might be infringing copyright. It is still easy to find on the internet.

It is only in 2000, 25 years after it was first published, that the authors, or inventors, of the MMSE tried to assert their copyright. In 2001, they granted a corporation, Psychological Assessment Resources, a license to publish, distribute, and manage all intellectual property rights of the questionnaire.

An editorial in the latest New England Journal of Medicine discusses the problems arising from the assertion of copyright. For example, a recent attempt by other researchers to develop a different questionnaire has fallen afoul of copyright because it used many of the same, or very similar, questions.

Some of these questions are “What day is it today?”, “What month are we in?”, “What year is it?” and “What is this address?”, which in the context of cognitive testing may now be copyrighted, though they were asked to test cognition of patients well before the MMSE ever saw the light of day. Presumably, once the answers to these rather banal questions are used to produce a score on a scale that is itself used to decide whether a patient is suffering from a cognitive defect, they become copyrighted.

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