Intellectual Property in Electronic Health Records

intellectual property
Intellectual Property

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Intellectual Property in Electronic Health Records


As a nurse, one comes into contact continually with issues of electronic health records. The Health Insurance Portability and Accountability Act is one of the Acts of the Federal Government that attempt to speak to the question of e-health records and classification of it as intellectual property. In this case, it is required that in the provision of cover for Americans, there is need to have a catalog of information kept by the health care providers which can be used in the offer of health covers (Hiller et al, 2011).

The HIPPA provides for mechanisms of protection of such information that is intellectual property by the privacy rule which demands that Personally Identifiable information ought not to be disclosed unless within the framework provided for under the Act (Bates, 2005).


It is the case that such information may be used in the carrying out of research. However, there is no clear methodology of addressing intellectual property concerns in the information that is stored therein. Most certainly, the IP in the coming up with software that can store such information is squarely an entitlement of the software developer.

Where does this leave the information and the collector of information? This is a question that must be determined to inform agreements that organizations which offer IT services to the health care providers may have to craft in their Service Level Agreements. (Garde, 2007)

It cannot be avoided that this is an issue that deserves adequate attention because often, the patient will not know whether they have any rights regarding the information they give herein. This actually gives them impetus to lie about the information they give.

Even if they do not lie about the information they give, they may end up being a bit economical about the truth in the information they give.  The growing need for enhancement and embrace technology in every area and the growing relevance of cloud storage means that the traditional ways of record keeping by health care providers is an idea of a bygone age. (Garde, 2007).

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It is a mundane principle of IP law that information gathering cannot amount to a situation where the gatherer is granted IP rights. This is because IP rights involve the exertion of mental capacities and the sweat of the brow cannot suffice for the abrogation of such rights by one such person. Ultimately, there is then a question that arises. Who then is entitled to such rights?

These information rights will inform how we handle such information and the procedures to be followed in the use or transfer of such information. The seriousness of the question of confidentiality and security of information is at the centre of electronic health records. In the event that this is not properly addressed, there is a real possibility that the policy on the creation of such records crumbles and the efficiency envisioned in such an instance fails in the main.


A priority, I perceive need to have a brief legislation on the IP rights regarding such scenarios. In such a case, there is need to properly brainstorm and see whether a law can be crafted to even sanction properly the actions of such persons who may handle such information, for instance nurses as they go about with their ordinary dealings.

It may then appear as though there shall be an overlap with the question of Confidentiality as already provided for in other pieces of legislation including HIPAA. However, this will be more specific and will spell out clearly the IP rights and offer a more comfortable pillow for the patient and users of such information will be under a more elaborate set of duties. (Zittrain, 2000)

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There is an elaborate procedure for the making of laws. In this my case, I have already encountered the need by observation and from experience that there is no clear policy directive on such. There is also an alarming dearth of scholarly attention to such an area which has far reaching implications for research. A focus group discussion with members of the profession reveals that information may be abused without the knowledge of the proper owners of the said property which is actually a virtual violation of the fundamental right to dignity.

It is the case that information that is de-identified may be used for research with few qualms. However, this does not completely take away the need to have the proper owners of the information at the centre of such a procedure.

This procedure is made easier by the fact that a citizen like me may institute the procedure without being found to have lacked the requisite locus. As the law progresses, the question of locus is slowly being found to be merely procedural and cannot be allowed to supersede substantive societal needs and justice. As a matter of conjecture, this will need a bit of education of the stakeholders on the issues to which this law will speak to.

Only then will a critical mass be achieved because this is a fairly technical area that may not be fully appreciated by many. However, IP Law is an issue of concern to all policy makers because the traditional forms of property are slowly being phased out.

The presentation of such laws to both houses of congress, both of whom must ruminate over the proposals and determine whether or not they deserve parliamentary attention. (Mason, 2015) It is hoped that the idea shall not die at the committee stage, but shall sail through to help protect the rights of patients.


Bates, D., 2005. Physicians and ambulatory electronic health records.”. Health Affairs, 24(5), pp. 1180-1189..

Garde, S., 2007. “Towards Semantic Interoperability for Electronic Health Records–Domain Knowledge Governance for open EHR Archetypes.”. Methods of information in medicine, 36(3), pp. 332-343..

Hiller, J., McMullen, M. S., Chumney, W. M., & Baumer, D. L. (2011). Privacy and security in the implementation of health information technology (electronic health records): US and EU compared. BUJ Sci. & Tech. L.17, 1.

Mason, A. T. a. G. S., 2015. . American constitutional law: introductory essays and selected cases.. 1 ed. New York: Routledge.

Zittrain, J., 2000. “What the publisher can teach the patient: intellectual property and privacy in an era of trusted privication.. Stanford Law Review, pp. 1201-1250.

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