BMJ - PKI and signinng slight confusion

[Nicholas Bohm]

At 10:38 AM 9/14/2000 +0100, Denis Russell wrote:
>At 9:56 pm +0100 13/9/00, John Enser wrote:
>>Denis,
>>
>>No lawyer can resist an invitation to pontificate.
>>
>>You are right.  Separate ownership of physical and intellectual assets is
>>very common - you buy a newspaper, you own the paper, but not the copyright
>>in the words on the paper, which are with the newspaper or (occasionally)
>>the author, or the copyright in the photographs, which remain with the paper
>>or photographer.  You can re-sell the physical object, but you cannot trade
>>in the words or pictures separate from the object
>....
>
>I understand that, but I thought that this case was slightly 
>different. In the case of a newspaper you do indeed buy the physical 
>paper, but mainly because you want to be able to read one copy of the 
>words on the paper. That's why you buy a *copy* of the paper. You 
>only buy one *copy* of the words, and making more than one copy 
>violates the copyright. What I thought was being suggested was 
>something slightly different. A Doctor apparently doesn't buy his own 
>paper, but it is supplied by an external agency, X. The Doctor then 
>writes some information onto the paper. The suggestion seemed to be 
>that because X owned the paper, that gave them some kind of right to 
>whatever might get written on it. That isn't clear to me. It seems to 
>me that there should be some kind of ownership of the abstract 
>information that is at least in principle separable from the medium 
>on which it is recorded. In the case of computer disks, this seems 
>clear. I can own my hard disk, but I can accept that some software on 
>it is owned by someone else. The act of writing the software on the 
>disk doesn't of itself give me any ownership of the information, even 
>if the information was put there by the owner of the information.
>
>Writing stuff on paper feels a bit different. I think this is because 
>writing on paper is essentially a one-time irreversible operation. 
>Once the information is written on the paper, its future (or at least 
>the future of that physical *copy* or representation of the abstract 
>information) and the paper are bound together: Owner of paper "give 
>me my paper back". Owner of information "you can't have the 
>information". Owner of paper "but the information is mine now". Owner 
>of information "no it isn't"...
>
>I fear that the resolution of this would involve a discussion of the 
>intention of the two parties in supplying the paper and using it, but 
>in principle I think the situation should be one of separation of 
>ownership as in the case of the disk drive.
>
>	Denis

Much of the discussion about ownership of information has been a discussion
about terminology.  In my experience of this and other similar discussions,
trying to define what constitutes owning information by analogy with what
constitutes owning familiar physical objects (like pieces of paper) is not
a helpful project.  

The reason may well be that physical objects are relatively stable and
persistent, and therefore support an intelligible distinction between what
is the original owned object and what is a mere copy.  Information may
reside in well fixed physical objects, or in less well fixed electronic
ones; and in either case is easily transformed and transferred in ways that
destroy conventional ideas of what is a copy and what is an original.  If I
have an apple locked in my safe, you can't have the same apple locked in
your safe.  If I have some information secured somewhere, you may also have
the same information secured somewhere else.

I hope this suggests why discussions based on ownership of information can
be confusing and sometimes not very illuminating.

It is of course true that rights in information can be owned, as
intellectual property rights show.  The most relevant right in the context
of the earlier discussion is the right to have information kept
confidential - a client's right, for example, not to allow his lawyer to
release the content of legal advice given by the lawyer or the content of
the information the client gave the lawyer for the purpose of obtaining
that advice.  That can be understood without reference to the idea that the
client owns the information, which as a proposition seems to me to add
nothing useful; and it tends to lead to discussions about whose ink and
paper were involved, which I think is irrelevant.

In the medical context, I think there is no doubt that what the patient
tells the doctor is confidential.  The precise scope of the duty of
confidence owed by the doctor to the patient depends on what the patient
consents to, expressly or by implication.  No doubt there is some general
consent to access by other doctors in the same practice, and perhaps by
some practice staff (e.g. a practice nurse).  There may be specific
consents to disclosure to a specialist on referral.  The NHS likes to
think, I suspect, that there is some woolly general consent to any
disclosure within the health service for the good of the nation's health in
general:  I think that anything of the kind is most dubious.  I find it
surprising how vague all this is, and perhaps it's time to reward a few
lawyers for litigating it to a point if clarity (but I'm not volunteering).

Regards,

Nicholas Bohm

Salkyns, Great Canfield,
Takeley, Bishop's Stortford CM22 6SX, UK

Phone		01279 871272	(+44 1279 871272)
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