Copyright Claim Sets Back Cognitive Impairment Testing

Kilrah_il writes "A recent New England Journal of Medicine editorial talks about the mini-mental state examination — a standardized screening test for cognitive impairment. After years of being widely used, the original authors claim to own copyright on the test and 'a licensed version of the MMSE can now be purchased [...] for $1.23 per test. The MMSE form is gradually disappearing from textbooks, Web sites, and clinical tool kits.' The article goes on to describe the working of copyright law and various alternative licenses, including GNU Free Documentation License, and ends with the following suggestion: 'We suggest that authors of widely used clinical tools provide explicit permissive licensing, ideally with a form of copyleft. Any new tool developed with public funds should be required to use a copyleft or similar license to guarantee the freedom to distribute and improve it, similar to the requirement for open-access publication of research funded by the National Institutes of Health.'"

Comments

I hope Karma's a bitch.

[Nemesisghost]

I sincerely hope that all of the authors either have a stroke, Alzheimer's, or some other disease that impairs mental faculty and the attending doctor doesn't know how to perform this test due to their idiotic copyright enforcement.

Public Funds

[fedos]

Any new tool developed with public funds should be entered into the public domain.

FTFY

Re:Public Funds

[Anonymous Coward]

Do you have any evidence this test was developed using public funds? I honestly don't know, but Wikipedia says it was developed by Marshal F. Folstein, Susan Folstein, and Paul R. McHugh in 1975. McHugh is the only author with his own Wikipedia page (and I'm too lazy to do further research), but in 1975 he worked for Johns Hopkins University, which is a private university.

So change the test, duh?

[pla]

Copyright covers the actual content of the test, not the concept of a short battery of simple test of various cognitive skills.

So... Rewrite the damned test. Use different math problems, different spatial problems, different linguistic problems, which gets around the copyright issue entirely but still fundamentally measures the same underlying capacity.

17+34 doesn't magically measure basic math ability "better" than 15+29 just because Folstein, Folstein, and McHugh blessed it.

You failed the (comprehension) test

[Mathinker]

The authors were letting everyone download the new test for free; a corporation, PAR, to which the old test had been licensed is to blame for claiming copyright over (elements of) the new test which may eventually replace the old one.

Unfortunately, there's no easy way to leave them a comment about one's opinion of their behavior on their website. I looked.

Re:You failed the (comprehension) test

[Sloppy]

Unfortunately, there's no easy way to leave them a comment about one's opinion of their behavior on their website. I looked.

You can leave a comment about the business, and a rating of their trustworthiness and vendor reliability here. They should see it if they care about their website, and some of their site's visitors (depending on installed FF plugins) may see it. Whether that effects their business prospects is dubious, but it's something.

If a business publicly asserts that a test which has similar mechanics to their test (but is a completely different expression) is a derived work, I'd say they're a bit untrustworthy (though to be fair, matters of law aren't something they claim expertise with -- OTOH, trustworthy people usually try to STFU on topics they don't understand (but we all make mistakes sometimes)). If they issue DMCA takedown notices based on that misconception, I'd say they're dangerously untrustworthy and no one can safely interact with them in commercial matters, which also impacts their "vendor reliability."

What troubles me more than the copyright issue, is that TFA makes it sound like they sell a "licensed version" of the test. It doesn't say authorized copies (copyright terminology), but a licensed version, which implies there might be terms of use or a contract, wholly unlike how people normally buy most copyrighted works (though many proprietary software publishers now assert that too). That is a pretty threatening idea. I wonder if TFA got that right.

They did. Didn't help.

[Mathinker]

The authors did. That didn't help them against the infringement claims of the corporation which benefits from an older test.

This is one example why many believe copyright does on the whole more damage than benefit to society.

Re:They did. Didn't help.

[Mathinker]

> We'll have to see if the authors' new version is actually copyright infringement on the old one.

I'm sorry to have confused the discussion here by emphasizing something not mentioned in the summary and only in the linked article. It's actually two tests from two different sets of authors. The newer test is called "The Sweet 16" (what a terrible name) and as far as anyone can tell (the newer test is unavailable, even in this era of the Internet, AFAIK), it is unlikely that any claim of infringement is valid.

I just hope some clinician who managed to download the newer test, in the few weeks it actually was available, will have the good idea to ask a favor from a friend who knows how to anonymously publish information on the net.

Re:They did. Didn't help.

[John Newman]

I'm one of the authors on the NEJM article.

The developers of the Sweet 16 - the test apparently "taken down" for copyright infringement of the MMSE - were all Harvard faculty, and work for academic centers that are affiliated with Harvard and its hospitals (Hospital Elder Life Program, Institute for Aging Research and Hebrew Senior Life). The senior author of the Sweet 16 is a well-known Harvard professor. One of the things we find concerning about this case is that Harvard Medical School probably has some claim to ownership of the Sweet 16, and was presumably involved in its defense. If Harvard, with its vast resources, could not or chose not to defend the Sweet 16 successfully, what hope do any other researchers have to develop new cognitive testing tools?

Sweet 16 vs MMSE

[sudnshok]

According to the article, an alternative test called Sweet 16 was produced and was subsequently killed by the MMSE copyright owners' legal action. It sounded like the Sweet 16 used completely new copy but similar logic. Can you copyright logic if all the words are completely different? I'd love to see a comparison of those two tests.

On a side note, I hope no one owns the copyright on the eye chart. I like getting my eyes checked every year or two.

Re:Sweet 16 vs MMSE

[Dcnjoe60]

According to the article, an alternative test called Sweet 16 was produced and was subsequently killed by the MMSE copyright owners' legal action. It sounded like the Sweet 16 used completely new copy but similar logic. Can you copyright logic if all the words are completely different? I'd love to see a comparison of those two tests.

On a side note, I hope no one owns the copyright on the eye chart. I like getting my eyes checked every year or two.

If the logic is germane to the item in question, yes you can copyright logic. Think of it as music and the logic is the step changes from note to note. Changing all the notes to a different key isn't unique enough to say it is a different work.

Re:Sweet 16 vs MMSE

[urulokion]

No you can't copyright logic. Nor can you copyright a thought. Nor can you copyright a plot. Copyright protects the expression of logic, thoughts, plots, et. al. So you can't copyright a plot, but you can copyright a screenplay which is an expression of a plot. You can't a thought, you can copyright a poem which expresses that thought. And you can't copyright the idea of a way to testing cognitive functioning, but you can copyright a standardized test to test cognitive functioning

The only way the Sweet 16 test could me infringing is if it's a derivative of the MMSE test. And I would suspect the creator of the Sweet 16 explicitly avoided that particular trap. It sounds like she created her own test using the general methodology used by the MMSE. Hmmm. Why does that sounds familiar...protection of methodology? Because that's the realm of patents. That's the only thing that the Sweet 16 test could be infringing. But any possible patent protection for the MMSE test has long since expired.

Re:Sweet 16 vs MMSE

[John Newman]

I'm one of the authors of the NEJM article.

We didn't have the space to describe the MMSE and Sweet 16 in detail, but here's a brief description:

The MMSE has 30 items, which include 10 orientation questions (what's today's date, where are we, etc.) and 6 questions for recall (say 3 standard words, repeat them back and remember them for 5 minutes or so).

The Sweet 16 has 16 items which include 8 orientation questions and 6 questions for recall (using different words than the MMSE). The other two questions involve repeating a sequence of numbers backwards.

So there is a lot of overlap between the two tests, and that was presumably the basis for an infringement claim. However, the items that overlap - orientation and recall - are quite generic and were in wide use long before the MMSE was created in 1975. Nevertheless, the authors behind Sweet 16 and their institution could not or chose not to defend the Sweet 16.

It's a little hard to imagine a cognitive assessment tool that doesn't include orientation or short-term memory recall questions, so this will strongly discourage progress in the field. Perhaps one of the Alzheimer's advocacy groups will take notice and defend researchers trying to advance the state of the art.

Corporation, not authors

[Mathinker]

The corporation, PAR, to which the older test is licensed, is behind this. AFAIK, the doctors who authored the older test haven't personally claimed infringement. My guess is that they received a single payment for licensing their test to PAR, and therefore they have no financial stake in the success or failure of the newer test.

Re:not First Post

[Mordok-DestroyerOfWo]

That's fine. I won't quote you and I'll compose my own post.

With blackjack and hookers!

Re:Apologies

[John Newman]

Sorry, I didn't see that the summary incorrectly states that the authors of the older test were claiming infringement. AFAIK, they're not.

I guess I failed the comprehension test. Actually, I didn't really read the summary carefully, since I was already familiar with the actual facts.

I am one of the authors of the NEJM op/ed article.

It is all a little confusing. There are three parties here:
1. The original authors of the MMSE, who through PAR are strictly enforcing copyright protections of the MMSE
2. The authors of a new tool, the Sweet 16, which was created as an open-access alternative to the MMSE but was "taken down" by PAR in a copyright dispute
3. Us, the authors of TFA, who have no relationship to #1 or #2 but are very worried about what this all means for the practice and progress of medicine