Moreover, because of many known and documented abuses and thefts, patients may be reluctant to disclose personal data.
As a result of this unwillingness, there is great potential for harm not only to patients, but also to the entire medical profession. When patients have little or no true control over their personal information, they simply are not as candidly open with doctors, and rightly so. As a result, many diseases and outbreaks of contagion may go undetected, simply because of patient unwillingness to disclose personal information.
The idea of Subjectright is for the medical profession, and other stakeholders such as government organizations, managers, hospitals, and insurance companies, to agree that the ownership in data acquired from a patient belongs to the patient. Under Subjectright, only the Subject (e.g. patient) of the data may authorize its storage, retrieval, transmission, or disemination. Such data is said to be Subjectright, and is denoted by circle S, or "S" in parentheses, for example, as "Subjectright (S) by S. Mann".
Subjectright data may include very personal data, such as (possibly by telemedicine) any video of a medical examination which might, for example, reveal the unclothed body of the patient, or the body in a less than fully clothed state, or electrical waveforms from the patient's body, such as an ECG waveform acquired and stored on a computer system. Subjectright data may be provided by the patient (as, for example, by way of videoconferencing from the subject's own home computer, when requesting medical assistance remotely), or Subjectright data may also be acquired within the hospital setting. Subjectright data also includes video, audio, or written reports on Subject, whether these are prepared by the subject or done by staff in a clinical setting. Subjectright data may also include samples from Subject's body, as well as data derived from these samples.
Moroever, with the very real possiblities of Wearable Computing ("WearComp") and Implantables (wearcomp.org and implantables.com), there is a very real possibility for the most up-to-date medical record to exist as part of the patient's body. For example, a WearComp with heart sensor can easily maintain a lifelong ECG waveform. In this sense the most up-to-date medical record of a person is on the person's body, and thus it makes sense to have physical storage of the rest of the Subjects's medical records on the Subject's body as well. Such distributed storage, among bodies of Subjects, may well be the ultimate solution to the privacy problems of medical records that arise when data is aggregated and stored in central storage facilities.
This Agreement, effective as of July 29, 1999 by and between W. Steve G.
Mann with address 284 Bloor St. W., Suite 701, Toronto, Ontario, Canada, and
his concerns, (the "Discloser") and _____________________, with headquarters
at _____________________________, Toronto, Ontario, Canada (the "Recipient").
WHEREAS, the Discloser seeks to purchase, either directly, or through his
concerns (insurance company, tax dollars, or the like) professional medical
advice pertaining to the state of his body, possibly including advice on
improved maintenance of his body, or referral to other specialists, such a
cardiologist, or the like, who may also perform various services for Discloser.
WHEREAS, the Discloser desires to provide the Recipient with information
(hereafter referred to as Confidential Information) pertaining to Discloser's
body, possbily including modifications thereto, or instrumentation connected
thereto.
WHEREAS, the Recipient may view Discloser's body in an unclothed state,
or a non-fully clothed state, the visible appearance of Discloser's body
in said state comprising Confidential Information.
WHEREAS, the Recipient may obtain measurement data, including but not
limited to image data, picture information, time varying electrical signals
such as EKG, EMG, EEG, or the like, said data being Confidential Information.
WHEREAS, Confidential Information includes any information, whether in
written, verbal, graphic, or machine readable, or other form, including
but not limited to information pertaining to any information concerning
Discloser's mind and body, theory of its operation, its construction, or
training process for it.
As used herein, "Confidential Information" excludes the following:
A. Information which, at the time of its disclosure
under this Agreement by the Discloser was in the public domain, without
violation of an obligation of confidence by the Recipient;
B. Information which, after its disclosure under this
Agreement by the Discloser becomes part of the public domain by publication
or otherwise, without violation of any obligation of confidence by the
Recipient;
C. Information which the Recipient can demonstrate, by
clear and convincing evidence, was in its possession without outside
restriction at the time of its disclosure under this Agreement by the
Discloser;
D. Information which the Recipient can show to have
been independently developed by employees of the Recipient who have not had
access to the disclosed Confidential Information;
E. Information which the Recipient rightfully obtains
from a third party without restriction and without breach of this Agreement
by the Recipient.
If any portion of any of Discloser's information falls within any
one of the above exceptions, the remainder of such information not within
any of the above exceptions shall continue to be subject to the restrictions
of this Agreement; and
WHEREAS, Discloser herein confirms that Discloser has invested a
great deal of time, effort, money, and opportunity cost in developing and
protecting his body; and
WHEREAS, as a condition of entering into an arrangement with and
providing Confidential Information to the Recipient, the Discloser requires
that the Recipient enters into this Agreement setting forth the arrangement
between the Discloser and the Recipient respecting the evaluation of the
Discloser's body.
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Recipient
agrees as follows:
1. Truth of Recitals. Discloser herein confirms that the foregoing
Recitals are all true and correct.
2. Non Profit. Recipient agrees not to use the Confidential
Information in development of any products, including commercial products,
or to profit financially from the Technology, without first coming to
licensing terms acceptable to Discloser.
3. Non Use. Recipient agrees not to use the Confidential
Information in its research other than to evaluate the health of Discloser's
body, and to assist Discloser in maintaining the health of his body, unless
Recipient first comes to licensing terms with Discloser. Recipient further
agrees that Confidential Information that is provided to Recipient by the
Discloser or that is discovered by the Recipient shall not be used except for
evaluation of the Discloser's body for its suitability and level of health,
or for licensing purposes, should Recipient wish to negotiate a license to
use Confidential Information for other purposes.
4. Discloser provides the Confidential Information on an as is basis
and explicity disclaims all other warranties, including without limitaiton
a warranty of fitness for any particular purpose.
5. Non Theft. Recipient agrees that it shall not obtain any right,
title, or interest in respect of any aspect of any Confidential Information
and that it shall not apply for any intellectual property rights, database
rights, or other rights in respect of any aspect of any Confidential
Information.
6. Non Disclosure. Recipient agrees that the Confidential
Information is disclosed for Recipient's sole use as provided for in
this Agreement and Recipient agrees not to disclose, convey, sell,
transfer, or otherwise provide information pertaining to the
Confidential Information to other parties. Recipient further agrees
that any information concerning Discloser's body, its operation, and
related processes is provided to Recipient by the Discloser or that is
discovered by the Recipient shall be held in strict confidence.
Recipient agrees that Confidential Information will only be disclosed
to employees or other organizations having a "need to know" for
purposes of evaluating or maintaining Discloser's health. Recipient
will ensure that all such employees or organizations will be bound by
written obligations of confidence. Alternatively, Recipient and
Discloser may agree that it is Discloser's responsibility to transfer
this Confidential Information to those which Discloser feels have
a "need to know".
7. Reports. Recipient agrees to provide reports to Discloser
describing the Recipient's health on evaluating the Discloser's body.
Recipient agrees to share with Discloser the discovery of any
deficiencies in Discloser's body, its state of being, or its state of
maintenance, as well as any negative impressions, but otherwise agrees
to maintain these impressions in confidence.
8. Survival of Provisions. Recipient recognizes and agrees that the
enforcement of this Agreement is necessary to ensure the preservation,
protection and continuity of the privacy, dignity, well being, respect,
and goodwill of Discloser, as well as the commercial value in respect to
Discloser's person, social situations, earning potential, and the like.
9. Recipient agrees that the terms, shall jointly and severally
survive any termination of this Agreement, regardless of any reason for
termination of this Agreement.
10. No Obligation License. Nothing in this Agreement shall obligate
the Recipient to purchase a license, or the Discloser to license any
data, information, or Subjectright Property.
11. No Obligation to Disclose. Discloser is under no obligation to
provide Confidential Information and may stop providing Confidential
Information at any time.
12. Return of Confidential Information. Recipient agrees hereby
to return to Discloser or destroy (as decided by Discloser) any and all
copies of Confidential Information.
13. Right to Audit. Discloser reserves a right to audit to
make certain that Recipient no longer has copies of material
containing Confidential Information after Return of Confidential
Information is requested by Discloser. In the event of the discovery
of said Confidential Information, Recipient agrees to pay cost of audit.
13. Locality. This Agreement shall be governed by and construed
as an agreement in accordance with the laws of the Province of Ontario.
14. Joint and Several. The invalidity or unenforceability of
any provision of this Agreement shall not affect the other provisions of
this Agreement, but this Agreement shall be construed and reformed to the
fullest extent possible. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors
and assigns. This Agreement cannot be modified or amended except by written
agreement executed by Discloser. This Agreement shall remain in force
regardless of whether the Technology is later licensed by Recipient.
15. Replacement. This Agreement supercedes any previous
agreement that may have been in force.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as
of the date first written above.
____________________________________ _____________
Date