Can Medical Knowledge Be Copyrighted?

A patient with a history of syncope, first degree AV block with evidence of a bundle branch block and 2:1 block on telemetry is examined and 1:1 conduction ensues with carotid massage. You recommend a pacemaker because you understand the electrophysiologic principle of "gap phenomenon" but realize that you had a question that looked just like that on a prior cardiac electrophysiology medical board examination. You recall that just prior to that examination, you electronically signed a statement that contained something like the following contract language just before the computerized examination started (but recall you were never given a copy of that mystical agreement):

I understand that all ABIM materials are protected by the federal Copyright Act, 17 U.S.C. § 101, et seq. I further understand that ABIM examinations are trade secrets and are the property of ABIM. Access to all such materials, as further detailed below, is strictly conditioned upon agreement to abide by ABIM's rights under the Copyright Act and to maintain examination confidentiality.

I understand that ABIM examinations are confidential, in addition to being protected by federal copyright and trade secret laws. I agree that I will not copy, reproduce, adapt, disclose, solicit, use, review, consult or transmit ABIM examinations, in whole or in part, before or after taking my examination, by any means now known or hereafter invented. I further agree that I will not reconstruct examination content from memory, by dictation, or by any other means or otherwise discuss examination content with others. I further acknowledge that disclosure or any other use of ABIM examination content constitutes professional misconduct and may expose me to criminal as well as civil liability, and may also result in ABIM's imposition of penalties against me, including but not limited to, invalidation of examination results, exclusion from future examinations, suspension, revocation of certification, and other sanctions.

Can you divulge this principle of gap phenomenon (and a similar example of this phenomenon) that once appeared in an almost identical way on your board examination to your residents?

According the American Board of Internal Medicine (ABIM) and the above agreement, it would seem that I cannot.

But is such a medical principle and my personal example displayed on this blog truly copyrightable by the ABIM?

According to prior court decisions, under the principle of the "merger doctrine" my example does not violate the Copyright Act. In fact, according to Mazer v. Stein, 347 U.S. 201, 217 (1954), the Supreme Court stated "Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself." This protects my First Amendments' free speech right and the fact that this same principle was shown to me years before by my mentor, Mel Scheinman, MD at the University of California, San Francisco when I trained as a fellow in cardiac electrophysiology.

To be clear, the disclosure of an exact replica of a board question and its detractors (wrong answers) might be subject to a copyright dispute, but it is clear that simply mentioning to residents that you saw a "similar question" on your specialty board examination and providing an example to your residents and fellows does not compromise your ability instruct your residents about such an important electrophysiologic principle as "gap phenomenon." In actuality, it is hard to copyright medical information that is widely available in the medical literature.

But this has not deterred the ABIM from continuing its legal battles against physicians who they claim may have shared information about their certifying examination question content.

More Suits Against Physicians Filed

Currently, the ABIM is continuing to sue physicians for possible Copyright Act infringement of their secure board examinations from participants in the Arora Board Review course given in 2009 (!), this time a young internal medicine physician from Puerto Rico (the full text of this suit can be viewed here). While this trial has yet to be heard, it will be interesting to see if the ABIM's Copyright Act infringement claims have merit. The suit is interesting because it gives a detailed accounting of the ABIM's test creation methods and the damages they hope to recover. I encourage my physician readers to review the suit.

Even more interesting to me, however, is the answer to the claims made in the ABIM's suit by the defendant and the countersuit filed against them (seen here). The claims of the "ABIM Individuals' Illicit Conduct" (beginning on page 22) are important to review, for if they are found to be true, they offer insight into the extent ABIM will go to protect their intellectual property and the damages they inflict of physicians that might be wrongly accused, including the use of a "spy," claims fo the violation of a "Pledge of Honesty" that the defendant never saw, public claims that he was "unethical and unprofessional," and having only 10 days before every medical licensing board in his jurisdiction would be notified of the ABIM's decision, leaving (in my view) no opportunity for due process.

These are extremely important issues for physicians to understand as the "restructuring" of the ABIM continues in light of the ABIM getting it "wrong" and the financial revelations and deceptive disclosure practices of the ABIM raised on this blog and elsewhere.  If the court finds in favor of the defendant in many of the claims made by him, I have a feeling there will be many more suits against the ABIM to follow.

It also raises the very real possibility that the ABIM Foundation was not created as a means to define and promote "medical professionalism," but rather to serve as a legal defense fund for the ABIM as they protect their monopoly interest in the physician specialty accreditation process.

-Wes