Project:The copyright status of Wittgenstein’s works

The copyright status of Wittgenstein’s works

By Michele Lavazza

29 December 2022

This is the preprint version of the article of the same title published in the 2023 issue of Wittgenstein-Studien. Please cite the published version: Michele Lavazza. “The Copyright Status of Wittgenstein’s Works.” Wittgenstein-Studien, vol. 14, no. 1, Jun. 2023, pp. 153–183. https://doi.org/10.1515/witt-2023-0009. The preprint is made available on this website with the kind permission of the publisher. © Michele Lavazza, De Gruyter. All rights reserved.

Introduction

The copyright status of Ludwig Wittgenstein’s works is a more complicated matter than that of the works by most other authors. This is largely because the greater part of his writings was published posthumously, with the intervention of different editors, by different publishers, in different countries. The purpose of this essay is to dispel some common misconceptions about copyright in general, to describe the rules that apply to Wittgenstein’s literary legacy and to clarify the current copyright status of his writings. This, in turn, is to illustrate how the Ludwig Wittgenstein Project strives to pursue its goals in a thoroughly lawful manner. This text is a research paper; it is scholarly in nature and does not constitute legal advice.

The purpose of copyright and the public domain

Before starting to talk about Wittgenstein and his writings, it is important to briefly discuss the purpose of copyright and its general logic. This will help us gain a better understanding of the ethics behind the laws and make sense of what copyright is and what it is not.

Copyright aims to ensure that anyone who performs a creative effort and gives birth to a creative work controls the reproduction and dissemination of such work. Others do not, by default, have the right to copy it—hence the term—without the author’s permission, which is usually granted for a fee. This, in turn, ensures that artists and intellectuals have at least a chance at making a living out of their creative labour.

The concept of “copyright” relies on the understanding that intellectual property is unlike other forms of property in that breaching it—“stealing”—does not mean that the original owner ceases to be in possession of their work. Copies can be made of books, pictures, recordings, etc. that leave the originals intact, whereas stealing gold or cattle means taking it away from someone. “Owning” a book as its author does, for example, as opposed to owning an individual specimen as a reader may, means having legal control over what can and cannot be done with it; “stealing” a book means doing things with it that the author has not agreed to, and this goes way beyond shoplifting an individual specimen.

Thus, the aim of copyright is, among other things, to make creativity viable on the market by giving authors monopoly over the distribution of the copies of their works. By being the only authorised sellers of those works, albeit often with the intermediation of a publisher, or a label, etc., authors may be able to secure an income.

The difference between intellectual property and the property of material goods, however, has implications that reach beyond the relative ease of breaching the former compared to breaching the latter. The very power of culture consists in the possibility for words, pictures, music, etc. to be reproduced with relatively little effort and, most importantly, without thereby consuming, diminishing, or getting any closer to the depletion of the “source”. As the saying—often misattributed to George Bernard Shaw—goes: “If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas”. The benefit that society as a whole gains from the exchange and the transmission of ideas has long been clear. Therefore, a limitation always accompanies the affirmation of the author’s rights over their works: eventually, copyright expires, and the works become public property. Unlike the property of a house, then, which can be handed over from parents to children by way of inheritance for, in principle, endless generations, the intellectual property of a creative work expires two to three generations after the author’s death, depending on the country or territory.

The rationale for the finite duration of the copyright term lies, firstly, in the concept that the circulation of ideas through the replication of works of art (and fiction, and nonfiction) is in the interest of the human community, and not only in the interest of the author and their heirs; and, secondly, it lies in the concept that if such circulation is free not only in the sense of “freedom”, but also in the sense of “free of cost”, the interest of the human spirit will be much better served.

Wittgenstein's testament. “I give to Mr. R. Rhees Miss G.E.M. Anscombe and Professor G.H. von Wright of Trinity College Cambridge All the copyright in all my unpublished writings and also the manuscripts and typescripts thereof to dispose of as they think best but subject to any claim by anybody else to the custody of the manuscripts and typescripts. I intend and desire that Mr. Rhees Miss Anscombe and Professor von Wright shall publish as many of my unpublished writings as they think fit but I do not wish them to incur expenses in publication which they do not expect to recoup out of royalties or other profits.”

The logic of copyright and of its term being limited by design, thus, is as follows. Authors should be able to exploit their works financially (depending on one’s broader moral view, this may be, perhaps, so as to reward their genius, but also to enable them to keep doing what they do while letting others benefit from their creativity as well). Additionally, authors should be able to control what can or cannot be done with their works from points of view unrelated to the financial one (which can be important when it comes to new editions or translations of a book, remixes of a sound recording, reproductions of a picture, etc., in assessing the quality of which authors are entitled to the last word). Sooner or later, however, the circulation of such works should stop being subject to the author’s consent or their family’s (in order for the public to fully enjoy the works without limitations, and especially without having to pay to do so).

In other words, the “spirit” of copyright laws is that:

• upon the birth of a piece of creative work, the right to copy it, distribute the copies, sell them, modify the original and disseminate the modified version (a translation, a remix, etc.) belongs exclusively to the author—all rights are reserved;
• when the author dies, the abovementioned rights belong, equally exclusively, to the author’s legal heirs for a period of time that, generally speaking, may vary from 30 to 100 years (but is usually 50 or 70);
• then, when the copyright term expires, the work enters the public domain, which means that anyone is legally entitled to copy it, distribute it, sell it, modify it; those who were previously the exclusive holders of the rights are not entitled to any privilege any longer and have, in fact, the same status as all other members of the public; no rights are reserved, except for, in some cases, the few “soft” provisions we call “moral rights” (see below, § Contracts, constraints unrelated to intellectual property, and politeness).

The public domain is meant to be a guarantee that culture is not forever subject to the monetary laws of buying and selling. In spite of local differences in copyright legislation, it is remarkable that in every last country on Earth the copyright term is finite, and all jurisdictions share the moral understanding that it is right for the public to eventually be free to do anything they want with a piece of writing, music, visual art, etc.

The public domain is as important a feature of intellectual property laws as copyright. Attempts at restricting the public’s right to access and use works that are in the public domain should be considered as illegal as accessing and using copyrighted material without permission. Of course, it is much more common for publishers to sue for copyright infringement than for individuals or non-for-profits to sue for what we could call “public domain infringement”. This is due to an obvious imbalance in power—that is, financial resources, knowledge, and organisation—but the argument is not any less urgent for this reason.

A very short history of the rights on Wittgenstein’s writings

Ludwig Wittgenstein died on 29 April 1951. In his last will and testament, he appointed G.E.M. Anscombe, R. Rhees, and G.H. von Wright as his literary heirs. Thus, they became the copyright holders for Wittgenstein’s writings.

In the second half of the 20th century, they made (or sometimes delegated) the decisions about what to publish and how, and they had a right to receive royalties for the sales of the books.

Rhees died in 1989, Anscombe in 2001, and von Wright in 2003. Although the author of this essay was unable to find a detailed account of their wills and testaments, it is clear that, after their deaths, the copyright holders for Wittgenstein’s writings became The Master and Fellows of Trinity College at the University of Cambridge. This leads us to think that it was Rhees’s, Anscombe’s, and von Wright’s joint will to elect Trinity as the heir to the intellectual property of Wittgenstein’s writings.

29 April 2021 was the 70th anniversary of Wittgenstein’s death and on 1 January 2022 Wittgenstein’s writings entered the public domain in those countries where the copyright term is 70 years P.M.A. (post mortem auctoris, i.e., “after the author’s death”). This includes most European countries, much of Africa, Asia and Oceania, and most Latin American Countries. In some jurisdictions, including many African and Asian countries, as well as Canada, where the copyright term is 50 years P.M.A., Wittgenstein’s works were already in the public domain. In some other countries, such as the United States, where copyright laws are rather different than in most other countries and determining the copyright status of a work is not simply a matter of counting the years that have elapsed since the author’s death, some of Wittgenstein’s works are still copyrighted; there, it is still Trinity that counts as the copyright holder.

This map provides a simplified overview of the duration of copyright terms worldwide. Please note that in some countries, for example the US, copyright laws are more complex than elsewhere and knowing that a given number of years has passed since an author’s death is not sufficient for determining the copyright status of their works; in the US, in particular, the publication date of a work often influences its copyright status. Moreover, even in those cases where a country’s copyright term is a definite period after the author’s death, exceptions may extend copyright further; in France, for example, where the duration of the copyright term is 70 years P.M.A., copyright lasts longer for those authors who died at war and officially count as morts pour la France—among them, famously, Antoine de Saint-Exupéry.

In the next few sections, we will examine from the point of view of copyright: the relationship between Wittgenstein’s handwritten or typewritten originals and transcriptions, curated editions, and translations; the relevance, or lack thereof, of the ownership of the material papers to intellectual property; the complications of international copyright law in the age of the internet; the copyright status of individual published works by Ludwig Wittgenstein.

The stratification of copyright

It may happen that creative works themselves become the basis for other creative works. When a text is translated, for example, if the original counts as a creative work, then the translation does too; when a statue or a building are photographed, if the three-dimensional object counts as a creative work, then the two-dimensional image does too; etc.

It is important to understand how these “layers” of copyright function, particularly because of how important the issue of transcriptions and translations is for the future of Wittgenstein studies. An additional difficulty which will be briefly discussed in this section stems from the question of whether, and to what extent, an editor’s work may count as original or creative enough to generate a further layer of copyright in addition to the copyright of the source material that undergoes the editing.

Transcriptions and originality

The general rule that governs the stratification of copyright is quite simple: both the creative work which is the starting point of a creative effort (as its material or its subject) and the creative work which is the output of such effort are copyrighted.

In the case of a translation of a book the author of which is still alive, for example, the author is the original text’s copyright holder and may licence another party, typically a publisher, to sell a translation; the translator will be the translation’s copyright holder and may in turn licence another party, again the publisher, to sell the translation. The publisher of the translation will need to have agreements with, and usually pay, both the author and the translator.

When copyright on the original text expires, it becomes possible for anyone to translate it and publish the translation without having to ask for permission. However, extant translations are still copyrighted until their copyright expires. For example, even though Wittgenstein’s Tractatus is now in the public domain in countries with a 70 years P.M.A. copyright term, the Pears-McGuinness translation will be copyrighted in those countries until the 70 years P.M.A. term expires for both Pears and McGuinness, that is, 1 January 2090, for Pears passed before McGuinness and McGuinness passed in 2019. On the other hand, since F.P. Ramsey died at a very young age, many years before Wittgenstein himself, his translation entered (or will enter) the public domain in any given country when the original did (or will).

Since, most often, the translator belongs to a younger generation than the author, “canonical” translations usually enter the public domain significantly later than the corresponding originals.

It must be stressed, however, that for a new layer of copyright to be generated a creative effort must be involved.

Copyright protects creative works as opposed to mere mechanical labour. This is also true when we talk about a creative work being the subject or the material for something else that may or may not be a creative work itself.

For example, the photograph of a three-dimensional object is universally considered a creative work, because of the choices that need to be made by the author in terms of angle, framing, composition, lighting, focus, focal length, shutter speed, aperture, etc. Even though the Nike of Samothrace is in the public domain, each of the photographs of it that are created daily are protected by copyright.

On the other hand, photocopies and scans are universally considered to be purely mechanical reproductions of two-dimensional objects, and therefore do not entail the formation of a new layer of copyright. This is also true for frontal photographs of paintings or other two-dimensional works of art. The example here will be much more relevant: since the original handwritten and typewritten notes taken or dictated by Wittgenstein are now in the public domain in most countries, the scans that are available on the Wittgenstein Source website are now in the public domain too, at least in those countries where copyright expires 70 years or fewer P.M.A. No matter how expensive or time-consuming scanning thousands of pages was, such effort was not of a creative nature, it did not leave room for originality, and copyright laws do not cover its output.

The same is true for verbatim transcriptions. These are also considered “mechanical”, not in the sense that a machine should be able to carry out the same job as a human being, but in the sense that they are thoroughly faithful reproductions of the text in the abstract sense of the term—i.e., the sequence of characters (letters, numbers, punctuation marks, special characters) with their formatting.

Let us produce an example. In summer 2022, thanks to Prof Sacha Raoult’s kind intervention and helpful mediation, the Ludwig Wittgenstein Project received permission from the Directors of the Centre Gilles-Gaston Granger at the Aix-Marseille Université to publish a web edition of Granger’s French translation of the Tractatus Logico-Philosophicus. During the autumn and winter of the same year, the Ludwig Wittgenstein Project’s volunteers scanned a paper edition of the book and, with a combination of OCR, manual transcribing, and proofreading, they generated the MediaWiki source code for the text, which is used by the website’s parser to generate the page’s HMTL “on the fly”; the latter, in turn, is rendered visually by web browsers. The procedure was neither easy nor simple, and it was very time-consuming; it required knowledge of the French language, understanding of MediaWiki and HMTL markup, familiarity with the logical and mathematical notation used by Wittgenstein and with the LaTeX syntax for writing and typesetting the formulae. However, this process cannot be regarded as original or creative, because it is a verbatim transcription, that is, a 1-to-1 substitution of some character or formatting feature with a corresponding character or XML tag. (The fact that, in MediaWiki syntax, XML tags are mostly replaced by other markup conventions is of no import, because that too is a 1-to-1 substitution.) Particularly in the case of the transcription of a print edition, where there is no issue of interpreting potentially ambiguous handwriting, if multiple people were to transcribe the same text, the output would have to be absolutely identical: the output, in other words, is process-agnostic, and this is enough reason to consider the transcriber’s activity as a non-creative activity. No new layer of copyright is generated by the process. In the case of Granger’s translation of the Tractatus, the copyright owners gave the Ludwig Wittgenstein Project permission to publish its digital edition, but the French texts stays copyrighted and all rights on it remain reserved; however, when the copyright term will expire on Granger’s translation, the digital edition will be in the public domain too, regardless of how long the Ludwig Wittgenstein Project volunteers will live. A verbatim transcription is not of itself eligible for copyright protection and is in the public domain if the original is.

The same argument that was expressed in the above paragraph can, perhaps, be expressed in an even more striking way. Once an original is transcribed into a plain text source file the markup of which incorporates all the information that was present in the original itself, that source file can always be rendered as a document, for example a web page, that visually reproduces all the features of the original. In other words, the visual features of the text (emphases, additions, deletions, etc.) can be transformed into markup and markup can be transformed back into visual features. To put it in a very Wittgensteinian way, the original and the transcription have the same “mathematical multiplicity”, they are in a strong sense interchangeable, and the latter does not add anything creative to the former, no matter how painstakingly long and accurate the procedure is. (Within the frame of this argument, it also becomes even clearer why translations, on the other hand, are and should be considered creative works: there is no way a translation can be “translated back” into the original text: if one tried to reconstruct the German text of the Tractatus by translating an English version back into German, the result would obviously be very different from the original.)

It could be argued that a significant degree of competence is, however, required in order to successfully complete a transcription such as that of the Tractatus, and that not everyone would be able to do it, and that therefore the task is more than merely mechanical. The reply to this is as follows: no transcription into a digital format could ever be done by a person who cannot read and write, because, even if (as a stretch) it is thinkable that individual strokes of ink may be reproduced by pen or pencil without interpreting them as a sequence of letters and words, the very fact of using a keyboard requires the ability to switch seamlessly from lowercase to uppercase and to understand the difference between an “O” and a “0”, between a lowercase “L” and a capital “I”, etc., that is, it requires the ability to read and write. Now, it is agreed that copying a text verbatim is not a creative activity. It should also be acknowledged that the divide between not being able to read and write and being able to do so is greater than the divide between, for example, not understanding MediaWiki markup and understanding it, or between being familiar with Wittgenstein’s logical and mathematical notation and not being familiar with it. Therefore, if the competence needed to transcribe a text into Microsoft Word (that is, the ability to read and write) is not enough to make that activity creative, then the competence needed to transcribe all the formatting and the exotic features of the Tractatus into MediaWiki is not enough to make that activity creative. More generally, even if it is true that a certain degree of competence is necessary in order to achieve an acceptable level of accuracy in a complex transcription, that does not mean that a new copyright layer is created in the process, because that degree of competence has nothing to do with creativity or originality.

The first image is a scan from the Gallimard edition of Wittgenstein’s Tractatus logico-philosophicus, translated by Gilles-Gaston Granger. The second image is the MediaWiki source code of the corresponding Ludwig Wittgenstein Project transcription (in addition to typical MediaWiki markup, such as the {{}} syntax for templates, the relatively complex proposition 4.42 includes LaTeX markup within the <math></math> tags). The third image is the Ludwig Wittgenstein Project’s transcription as viewed in a web browser. The processes that lead from the first picture to the second (encoding) and from the second to the third (rendering) are both 1-to-1 substitutions (images in the Tractarian sense).

For transcriptions of handwritten materials which set themselves a goal that goes beyond providing a digital version of the text, different conclusions may have to be drawn because different hypotheses may have to be taken into account. In the context of Wittgenstein studies, the case of the Wittgenstein Archives Bergen’s transcriptions of the Nachlass must now be discussed explicitly.

Under the direction of Profs Claus Huitfeldt and Alois Pichler and over more than 30 years, the WAB has rendered the scholarly community an invaluable service by providing excellent, extremely rich transcriptions of Wittgenstein’s manuscripts and typescripts that, at the moment of this writing, can be accessed online at no cost. The XML files created by the WAB include all the information which the originals themselves contain—including emphases, strikeouts, alternatives, sidenotes, page breaks, and more—and allow the user to dynamically select which information set should be displayed. It is impossible to overestimate the importance of this resource, and the generosity behind the decision—by Trinity and the WAB—to make it available on the internet for free should be duly stressed. The effort that went into making and proofreading the transcriptions should also be recognised. The question arises whether and to what extent this effort can count as a creative one.

What was said above remains valid for the WAB transcriptions: insofar as creating a digital edition of a handwritten or typewritten text consists of a 1-to-1 substitution of some visual feature with the corresponding character or XML tag, the output is to be considered a faithtful reproduction of the original material and cannot, in and of itself, be copyrighted. However, two points must be stressed that were not relevant in the case we discussed previously (the example of the French translation of the Tractatus) but are important here.

The first point is that, even though the WAB’s transcriptions are produced in accordance with strict rules based on the TEI Guidelines, in many cases the transcriber is forced to propose what we may call an interpretation. This is, in turn, not only because Wittgenstein’s handwritten texts, unlike printed texts, may be difficult to decipher on the grounds of the quality of the author’s penmanship; but also and perhaps most importantly because the transcriber must systematically decide whether or not to include some visual items in the transcription based on whether or not they are semantically relevant, and how to encode them based on what their semantical value is—which is not always trivial. In other words, very often, more than one way of encoding the text is consistent with the rules. Where there is room for this kind of uncertainty and an interpretation is needed to make up for the uncertainty, there is room for originality too.

The second point is that the WAB’s transcriptions also make Wittgenstein’s implicit references to people and books explicit: embedded in the XML files are also the full names of people Wittgenstein only mentions by surname or talks about without naming them at all; information about the books Wittgenstein discusses or quotes from without citing the full title; etc.; here, again, the transcriber can then be said to be responsible for an interpretation, and, again, where there is a margin for interpretation (when the multiplicity of the text is not exactly the multiplicity that is needed for the transcription to be unequivocal), there is room for originality too.

When talking about the transcription of the French print edition of the Tractatus, it was said that because the procedure was tantamount to copying, it did not generate a new copyright layer; when talking about the WAB transcriptions, it should be said that if or when the procedure was tantamount to copying, it did not generate a new copyright layer, but if or when it was not, it did. It could also be agreed to express this conclusion—which, incidentally, is an open conclusion, that does not claim to settle the question of the copyright status of the WAB’s XML files once and for all—by saying that, unlike the Ludwig Wittgenstein Project’s digital edition of the Granger translation of the Tractatus, the WAB’s XML files, or at least some of them, are more than just transcriptions.

The first image is a scan of Wittgenstein’s Ms-176,1v (from Wittgenstein Source). The second image is the corresponding WAB XML transcription. The <del></del> and <add></add> tags and their attributes, which account for Wittgenstein’s substitution of ist with wird, can be considered a 1-to-1 substitutions of certain visual features with some conventional markup. On the other hand, the inclusion of a reference to a specific passage in Georg Lichtenberg’s Sudelbuch K, which Wittgenstein does not cite explicitly, can be considered an addition, an interpretation, and a ground for arguing that there is room for originality in the role played by the transcriber.

The authorship issue

It should be added that, from the point of view of Wittgenstein scholarship, the issue of copyright layers is particularly thorny when it comes to assessing the impact of the editors’ work on the very authorship of a published book. This issue is related to but different from the main issue of this paper and will only be briefly touched upon here.

Except for the Tractatus, all of Wittgenstein’s philosophy books were published posthumously. In some cases, for example that of the Philosophical Investigations, Wittgenstein himself came very close to having the book ready for the printing press; in some others, for example that of On Certainty, he marked a few sections of his notebooks in such a way as to make it clear that they belonged together, which, in turn, was taken by the literary executors to be a strong indication that it would make sense to publish them as a standalone work. In such instances, very little room was left for the editors to be original or creative, and it would be difficult to argue that what they did with Wittgenstein’s own writings in order to turn them into books generated a new layer of copyright.

In yet other cases, however, the editors’ intervention was very significant in selecting and sorting Wittgenstein’s remarks while preparing them for publication, so that originality or creativity may be said to have been involved. The best example of this is probably G.H. von Wright’s editing of Culture and Value. In such instances, the editors may have to be considered co-authors, thereby extending the copyright term on a work beyond the 70-year period after Wittgenstein’s death.

Given the uncertainty of this matter, the Ludwig Wittgenstein Project opted for a cautious approach, which is presented in a separate essay. Further discussing the problem or the Ludwig Wittgenstein Project’s solution to it would lead us away from the main issue of this paper, because there is the question of the copyright status of works that have Wittgenstein as their author—and this is the main issue of this paper—and then there is the question of the authorship of works that may not have Wittgenstein as their sole author: neither is trivial, but the latter does not affect the former.

Contracts, constraints unrelated to intellectual property, and politeness

When a person is the holder of the copyright on a given work (because they are the author or because they are the author’s heir), they have the right to sign contracts that give others permission to use the work in specific ways under specific conditions. Typically, an author will sign an agreement with a publisher in order for the latter to print, distribute and sell the book and for the former to receive a sum of money in exchange—often a royalty, i.e., a percentage of the cover price of the copies sold.

Regardless of the agreements that copyright holders and publishers may have, however, the expiry of the copyright term is always a sufficient condition for the work to be in the public domain. No contract has the power to extend copyright protection beyond the term defined by the local legislation.

Example of an unwarranted and abusive apposition of the “©” sign on the back of a postcard sold by a museum. The postcard features a faithful reproduction of Salomé dansant, a painting by Gustave Moreau (1826–1898). The painting is in the public domain everywhere in the world, and the photograph is not eligible for copyright protection because it does not meet the requirements in terms of originality.

This, as well as the general nature of the public domain itself, is sometimes the subject of misunderstandings because publishers tend to print the copyright symbol “©” or another copyright notice on all books they produce, regardless of the copyright status of the text, possibly hoping to protect the typesetting and layout (which, however, are usually below the threshold of originality) or perhaps simply trying to discourage photocopying even public domain texts. As mentioned above (§ Introduction. The purpose of copyright and the public domain), however, adding copyright symbols where they do not belong should be regarded as illegal.

Additional restrictions may make the picture more complicated.

One such restriction is what we call “moral rights”. Moral rights have to do with the author’s dignity as such and with their unique relationship to their work. In some countries, they do not expire. The definition of moral rights also varies across jurisdictions, but most often they include the right of attribution and the prohibition that works be remixed in a way that negatively affects the author, their image, or their reputation. This wording may seem to forbid adding a moustache to a reproduction of Mona Lisa or creating a horror version of Winnie-the-Pooh, but in practice such things are widely accepted, as long as it is clear that the parody or distortion is attributable to the remixer, and not to the author. Moral rights have limited import as far as copyright and the public domain are concerned: insofar as they entail the obligation to attribute authors, for example, they do restrict the scope of what can be done with public domain works, since by the definition of public domain alone attributing authors whose copyright expired would not be compulsory; however, they entirely lack the characteristic feature of copyright laws that has to do with establishing someone’s monopoly on a set of works. Moral rights have no financial import whatsoever.

Another set of restrictions may arise from the fact that, even after copyright expires, ownership of the original specimen remains. Thus, for example, the Louvre may well forbid visitors to take photos of its paintings—even though most of the works in the museum are out of copyright—simply because they have the authority to dictate the house rules; on the other hand, they have no authority to forbid us to freely share, modify and even sell the faithful reproductions of public-domain two-dimensional works that can be found on their very website. In the case of Wittgenstein, his originals have several different owners—the Wren Library, Trinity College, Cambridge; the Austrian National Library, Vienna; the Bodleian Library, Oxford; the Noord Hollands Archief, Haarlem; the Bertrand Russell Archives, McMaster University Library, Hamilton—but this also has no import as far as copyright and the public domain are concerned.

Finally, even in the arid landscape of copyright law and the harsh arena of the publishing business, politeness and bona fides are not without importance. It remains a good practice to inform the former copyright holders or the owners of the originals when a new edition or translation of a public-domain text is planned; and it is crucial that projects which share the same goal of improving the availability of a given cultural asset to the public are well coordinated, do not uselessly compete with each other, and on the contrary work together in a spirit of cooperation or, at least, complementarity. This is as good a place as any to say that if the Ludwig Wittgenstein Project were to fail to comply with these basic rules of manners it would not be because of a slapdash attitude, but because of a failure to identify some of the many stakeholders.

Copyright in the age of the internet

It was mentioned above that breaching intellectual property rules is somewhat easier than breaching regular property rules, at least insofar as the “stolen” object is not taken away from the owner and it may even be difficult for them to realise that they have been robbed.

Computers and the internet have made copying creative works and distributing them easier than ever before. They have, therefore, multiplied the instances of copyright infringement. (As a side note, it should be remarked that they have also multiplied the instances of lawful distribution of copyrighted material for a fee, thereby significantly enriching the publishers that have taken advantage of the newer media.)

Copyright law has changed remarkably little to meet the challenges of the digital age. The most significant innovation in the landscape of copyright law since the beginning of the 21st century has been the codification and the spread of the Creative Commons licences, which will be briefly discussed below, in § The Creative Commons licences. Other than that, the world’s copyright system is not designed for the digital age, and often seems to be altogether unfit for it.

One of the challenges for those who are looking to lawfully share out-of-copyright content in a digital format is the fact that the web is an intrinsically international space—it is, after all, the worldwide web—and within it national borders are almost non-existent.

As far as copyright is concerned, international relations are still largely regulated by the Berne Convention, adopted in 1886 and last amended in 1979. This document establishes that signatory countries must grant copyright protection to all works that have another signatory country as their country of origin.

Now, because copyright rules are very much country-specific, it is common for a work to be copyrighted according to the laws of a given country and in the public domain according to the laws of another. For example, Soldier’s Pay, William Faulkner’s first novel, published in 1926, is in the public domain in the US, where everything that was published before 1927 is now out of copyright; it is, however, copyrighted in the European Union, because Faulkner died in 1962 and the EU’s copyright term lasts 70 years after the author’s death. For the same reason, Wittgenstein’s Tractatus was already in the public domain in the US in 2021, when it was still copyrighted in the European Union.

What does it mean, then, to lawfully share out-of-copyright content on the web? Should we wait until the content is out of copyright according to the laws of every last country on Earth? This would clash with the principle, stated above, that the public’s right to access public domain works should not be limited beyond what a given legislation already does. Should we consider it enough for the copyright term to have expired in the country where the website is based, even though the location of the servers or the legal registration may be immaterial as far as the location of the audience is concerned? This would expose the site to the risk of being considered a pirate website, and therefore being blocked, in counties that have a longer copyright term.

There is no definite answer to this question, precisely because there is no international treaty with provisions that take into account the contemporary state of information technology. A viable solution, however, is that of respecting two requirements while publishing works on the internet: for them to be in the public domain, or at least reusable, in the country where the website is based and in their country of origin. (With reference to the relevant cases, the difference between “in the public domain” and “reusable” will be discussed in § The copyright status of Wittgenstein’s individual works.)

This is, for example, the policy of the Wikimedia projects, which have earned a very respectable position among those who are trying to challenge the traditional closed culture system while abiding by its rules.

The notion of “country of origin” is a traditional concept that is defined by the Berne Convention itself. Even though its application is not always obvious when a work is first published in a digital format, for it may then be considered to be simultaneously published throughout the world, determining the country of origin of a work that was first published in print is rather straightforward:

Under the Convention, determining the country of origin of a published work is simply a matter of ascertaining where that work was first published or simultaneously published. The rules provide that for works first published in a country of the Union, the country of origin will be that country. For works published simultaneously in several countries of the Union which grant different terms of protection, the country of origin will be the country with the shortest term of protection […]

The question should then be answered: what does it mean for a website to be located in a certain country? This question is rather complex for high-traffic sites which, to better serve requests, have servers in many locations and for sites which are operated by multinational companies; it is, however, quite simple in the case of the Ludwig Wittgenstein Project, since our servers are located in Italy and the owner of the website is both Italian and based in Italy. The Ludwig Wittgenstein Project therefore operates under Italian laws and European Union regulations.

Finally, it should be noted that the policy according to which the Ludwig Wittgenstein Project only publishes works that are free in their country of origin and in Italy, in spite of adhering to a widely accepted best practice, does not of itself solve the problem posed by the fact that some of the texts that are available on our site are not in the public domain in some countries, for example Mexico, where the copyright term is 100 years P.M.A. It is the reader’s responsibility to comply with the laws of their country by making sure that a given work is in the public domain there before accessing it or downloading it. Still, nothing would prevent a country where some of the materials that we publish are not in the public domain, for example Mexico, from blocking access to the Ludwig Wittgenstein Project’s site for users located within its territory.

The Creative Commons licences

Before moving on, it is now appropriate to provide a very short introduction to the Creative Commons licences. This is for three reasons:

• as it was claimed in the previous section of this essay, they are probably the most meaningful innovation in the field of intellectual property since the advent of the internet;
• as we will see in the last section of this essay (see § The copyright status of Wittgenstein’s individual works), some of Wittgenstein’s works have been released by their copyright holders under the terms of Creative Commons licences;
• the Ludwig Wittgenstein Project releases all its original content under Creative Commons licences.

Creative Commons licences provide a simple solution for creators to publish their works under terms that, on the one hand, allow others to use the content for free and, on the other hand, require the party who uses the content to meet a variable set of conditions, based on the creator’s own choice. The introduction of the Creative Commons licences was prompted by the realisation that, given the ease of sharing texts, pictures and multimedia files brought about by the web, an increasing number of people would be happy to publish their creative works outside of a commercial logic—i.e., without the hope or even the intention of making money out of their sale—but would still want to reserve some rights.

Devised by a team of legal experts led by Lawrence Lessig and first released in 2002, the six Creative Commons licences are based on the recognition of three freedoms and four constraints. The three freedoms are:

• the right to share a work, meaning to duplicate it, republish it, distribute it;
• the right to remix a work, that is, to edit a picture, translate a text, remix an audio track in the strict sense or otherwise create a derivative work based upon the original;
• the right to sell a work, that is, to use the original or a work derived from the original commercially.

The four constraints are:

• the requirement to attribute the work, that is, to cite the author or authors;
• the requirement to share derivative works, if any, under the same licence as the original;
• the prohibition to sell the work or a work derived from it, or otherwise use it commercially;
• the prohibition to remix the work, meaning that no works can be derived from it.

The combinations of these freedoms and constraints generate the six licences, listed below from the “most free” to the “least free”:

• Creative Commons Zero (CC0): a waiver equivalent to the public domain, where the author grants permission to use the work for all purposes without any limitations, not even requiring attribution; it should be noted that CC0 is not strictly speaking a licence, but is rather referred to as a “tool” for relinquishing one’s rights;
• Creative Commons Attribution (CC BY): the work can be used for all purposes, but the author must be credited;
• Creative Commons Attribution – ShareAlike (CC BY-SA): the work can be used for all purposes, but the author must be credited and derivative works, if any, must also be licenced under CC BY-SA;
• Creative Commons Attribution – NonCommercial (CC BY-NC): the work can be used for non-commercial purposes only; the author must be credited;
• Creative Commons Attribution – NonCommercial – ShareAlike (CC BY-NC-SA): the work can be used for non-commercial purposes only; the author must be credited and derivative works, if any, must also be licenced under CC BY-NC-SA.
• Creative Commons Attribution – NoDerivatives (CC BY-ND): the work can be used for all purposes, but it cannot be remixed; the author must be credited;
• Creative Commons Attribution – NonCommercial – NoDerivatives (CC BY-NC-ND): the work can be used for non-commercial purposes only, and it cannot be remixed; the author must be credited.

Creative Commons Attribution and Attribution – ShareAlike are considered “free” licences because they allow reusing the work for any purpose, including commercially, and remixing it; in this sense, the other licences are “non-free”, even though they still allow reusing the work and, in some cases, remixing it under stricter conditions.

The copyright status of Wittgenstein’s individual works

In this section, we will apply the concepts described above in order to clarify the copyright status of Wittgenstein’s works. We will limit ourselves to those that have been published on the Ludwig Wittgenstein Project’s website, thereby excluding those texts where the editors may have to be counted as co-authors.

For each work, the copyright status in the country of origin and in Italy will be described and explained. What is written about Italy can be considered to be valid, to some extent, for all countries where, as a general rule, copyright expires 70 years or fewer P.M.A.; however, since local exceptions may exist, generalisations should be made, so to speak, at one’s own risk. Occasionally, the copyright status in the United States will be discussed, as the US, despite not playing any special role from the point of view of the Ludwig Wittgenstein Project, are certainly, to this day, the centre of gravity of the web.

The information is valid and up to date as of December 2022. Copyrights that are still standing will gradually expire in the coming years and decades.

Review of P. Coffey, “The Science of Logic”

The Review of P. Coffey, “The Science of Logic” was first published in the British journal The Cambridge Review, vol. 34, no. 853, 6 March 1913, p. 351.

Its country of origin is the United Kingdom. This work is in the public domain there, as well as in Italy, because the copyright term for literary works in both countries is 70 years P.M.A. and the author died before 1952.

Additionally, it is in the public domain in the United States because it was published in 1913 and everything that was published before 1 January 1927 is now in the public domain in the US.

Notes on Logic

The Notes on Logic were first published in the United States of America, in the journal The Journal of Philosophy, vol. 54, 1957, pp. 230–245.

Their country of origin is the US. In order to determine the copyright status of a work which has the US as its country of origin, knowledge of the date of the author’s death is not sufficient. Per the Hirtle chart, the current copyright status of a work first published in the US between 1927 and 1964 depends on whether or not it was published with a copyright notice (which we should assume was the case) and, if it was, on whether or not copyright was renewed before its expiry, the term of which was then 28 years: if copyright was renewed, the text is still copyrighted in the US; if it wasn’t, the text is now in the public domain in the US. Lacking further information, it should be assumed that the copyright on this text was renewed. Assuming that it was indeed renewed, then the duration of its copyright term is 95 years from the publication date, meaning that it will enter the public domain the US on 1 January 2053.

However, in February 2017 Wittgenstein’s Ts-201a1 and Ts-201a2, containing the text of the Notes on Logic, were released by the copyright holders under the terms of the Creative Commons Attribution – NonCommercial 4.0 International licence (CC BY-NC). Therefore, the text should be regarded as being in the public domain in countries where the copyright term is 70 years P.M.A. and licenced under CC BY-NC 4.0 International in the US. As was discussed above in this essay (see § Copyright in the age of the internet), a work being in the public domain in its country of origin is not a requirement for it to be freely reusable, remixable, etc. elsewhere, but rather a generally accepted good practice when the work is to be published on the internet; because of the internet’s lack of national boundaries, in other words, we consider it a good compromise to always make sure that we abide by the rules both of a work’s country of origin and of the country where the work is used, remixed, etc. The situation is similar when a work is not in the public domain in its country of origin but rather is licenced under the terms of a Creative Commons licence: we always want to abide by the rules both of a work’s country of origin and of the country where the work is used, remixed, etc. In this case, this means treating the work (Wittgenstein’s original text) as though it was also licenced under CC BY-NC in Italy, where the work is in the public domain because the copyright term for literary works is 70 years P.M.A. Now, CC BY-NC does not prohibit derivative works (for it does not include the “ND”, “NoDerivatives” clause), nor does it require derivative works to be licenced under the same terms (for it does not include the “SA”, “ShareAlike” clause). Therefore, the Ludwig Wittgenstein Project’s Italian translation of this text was lawfully published under CC BY-SA.

Notes Dictated to G.E. Moore in Norway

The Notes Dictated to G.E. Moore in Norway were first published in Germany in the volume Schriften (Band 1. Tractatus logico-philosophicus. Tagebücher 1914-1916. Philosophische Untersuchungen), edited by G.E.M. Anscombe and G.H. von Wright, Suhrkamp, Frankfurt am Main 1960, pp. 226–253.

Their country of origin is Germany. This work is in the public domain there, as well as in Italy, because the copyright term for literary works in both countries is 70 years P.M.A. and the author died before 1952.

Tagebücher 1914-1916

The Tagebücher 1914-1916 were first published in Germany in the volume Schriften (Band 1. Tractatus logico-philosophicus. Tagebücher 1914-1916. Philosophische Untersuchungen), edited by G.E.M. Anscombe and G.H. von Wright, Suhrkamp, Frankfurt am Main 1960, pp. 85–278.

Their country of origin is Germany. This work is in the public domain there, as well as in Italy, because the copyright term for literary works in both countries is 70 years P.M.A. and the author died before 1952.

Logisch-philosophische Abhandlung

The Logisch-philosophische Abhandlung was first published in Germany in the journal Annalen der Naturphilosophie, no. 14, 1921, pp. 185–262.

Its country of origin is Germany. This work is in the public domain there, as well as in Italy, because the copyright term for literary works in both countries is 70 years P.M.A. and the author died before 1952.

Additionally, it is in the public domain in the United States because it was published in 1921 and everything that was published before 1 January 1927 is now in the public domain in the US.

Wörterbuch für Volks- und Bürgerschulen

The Wörterbuch für Volks- und Bürgerschulen was first published in Austria as Wörterbuch für Volksschulen, Hölder-Pichler-Tempsky, Vienna 1926.

Its country of origin is Austria. This work is in the public domain there, as well as in Italy, because the copyright term for literary works in both countries is 70 years P.M.A. and the author died before 1952.

Additionally, it is in the public domain in the United States because it was published in 1926 and everything that was published before 1 January 1927 is now in the public domain in the US.

The preface (Geleitwort zum Wörterbuch für Volksschulen) was first published in Wörterbuch für Volksschulen, edited by A. Hübner, E. Leinfellner and W. Leinfellner, Schriften der Österreichischen Wittgensteingesellschaft, Hölder-Pichler-Tempsky, Vienna 1977, pp. xxv–xxxv. Its country of origin is Austria. This work is in the public domain there, as well as in Italy, because the copyright term for literary works in both countries is 70 years P.M.A. and the author died before 1952.

Some Remarks on Logical Form

Some Remarks on Logical Form was first published in the British journal Proceedings of the Aristotelian Society, supplementary vol. 9, London 1929, pp. 162–171.

Its country of origin is the United Kingdom. This work is in the public domain there, as well as in Italy, because the copyright term for literary works in both countries is 70 years P.M.A. and the author died before 1952.

Lecture on Ethics

The Lecture on Ethics was first published in the United States of America, in the journal The Philosophical Review, vol. 74, no. 1, January 1965, pp. 3–12.

Its country of origin is the US.

However, in February 2017 the text of Wittgenstein’s Ts-207 was released by the copyright holders under the terms of the Creative Commons Attribution – NonCommercial 4.0 International licence. The text of the Lecture on Ethics that was published in the Philosophical Review in 1965 only differs from the text of Ts-207 for very few spelling variants and punctuation marks; the two must thus be considered to be the same text and to share the same copyright status. Therefore, the text should be regarded as being in the public domain in countries where the copyright term is 70 years PMA and licenced under CC BY-NC 4.0 International in the US. See above, § Notes on Logic, for more details.

Bemerkungen über Frazers “The Golden Bough”

The Bemerkungen über Frazers “The Golden Bough” were first published in the Dutch journal Synthese, vol. 17, no. 3, September 1967, pp. 233–253.

Their country of origin are the Netherlands. This work is in the public domain there, as well as in Italy, because the copyright term for literary works in both countries is 70 years P.M.A. and the author died before 1952.

Blue and Brown Books

The Blue Book and the Brown Book were first published in the United Kingdom in the volume Preliminary Studies for the “Philosophical Investigations”. Generally Known as The Blue and Brown Books, Blackwell, Oxford 1958.

Their country of origin is the United Kingdom. These works are in the public domain there because copyright on posthumously published literary works that were created before 1989 and first published less than 20 years after the author’s death expires 70 years after the author’s death, and the author died before 1952. It is also in the public domain in Italy, because the copyright term for literary works there is 70 years P.M.A. and the author died before 1952.

Philosophische Untersuchungen

The Philosophische Untersuchungen were first published in the United Kingdom as Philosophische Untersuchungen, edited by G.E.M. Anscombe and R. Rhees, Blackwell, Oxford 1953.

Their country of origin is the United Kingdom. This work is in the public domain there because copyright on posthumously published literary works that were created before 1989 and first published less than 20 years after the author’s death expires 70 years after the author’s death, and the author died before 1952. It is also in the public domain in Italy, because the copyright term for literary works there is 70 years P.M.A. and the author died before 1952.

Zettel

The Zettel were first published in the United Kingdom as Zettel, edited by G.E.M. Anscombe and G.H. von Wright, Blackwell, Oxford 1967.

Their country of origin is the United Kingdom. This work is in the public domain there because copyright on posthumously published literary works that were created before 1989 and first published less than 20 years after the author’s death expires 70 years after the author’s death, and the author died before 1952. It is also in the public domain in Italy, because the copyright term for literary works there is 70 years P.M.A. and the author died before 1952.

Bemerkungen über die Farben

The Bemerkungen über die Farben were first published in a traditional book form in the United Kingdom as Bemerkungen über die Farben, edited by G.E.M. Anscombe, Blackwell, Oxford 1977.

If this were to count as the first edition, their country of origin would be the United Kingdom. This work is not in the public domain there because copyright on posthumously published literary works that were created before 1989 and first published more than 20 years after the author’s death expires 50 years after the publication date, and this work was published in 1977.

However, Ms-172, Ms-173, and Ms-176, in which Wittgenstein’s remarks on colour are contained and from which the 1977 edition was compiled, had already been published, albeit in a rather uncommon kind of edition. In 1967, looking to make the Nachlass available to scholars in its “raw” form, Cornell University microfilmed the corpus; the print version of the microfilms, i.e., a facsimile edition of (almost) the entire Nachlass, was published by Cornell itself in 1968. Even though it is a rather untypical book and even though, in particular, it lacks an imprint, the Cornell edition seems to meet the American legal definition of “publication” and the Bemerkungen über die Farben, which were part of this publication, must therefore be considered to have the US as their country of origin. Possibly because of being published by a university library for mere research purposes, however, this edition did not bear a copyright notice. Works first published in the US between 1927 and 1977 without a copyright notice are in the public domain there, because at the time this formality was a necessary condition for the work to be copyrighted at all. Thus, the Bemerkungen über die Farben are in the public domain in their country of origin. They are also in the public domain in Italy, because the copyright term for literary works there is 70 years P.M.A. and the author died before 1952.

Über Gewißheit

Über Gewißheit was first published in a traditional book form in the United Kingdom as Über Gewißheit, edited by G.E.M. Anscombe and G.H. von Wright, Blackwell, Oxford 1969.

If this were to count as the first edition, its country of origin would be the United Kingdom. This work is in the public domain there because copyright on posthumously published literary works that were created before 1989 and first published less than 20 years after the author’s death expires 70 years after the author’s death, and the author died before 1952. It is also in the public domain in Italy, because the copyright term for literary works there is 70 years P.M.A. and the author died before 1952.

However, Ms-172, Ms-173, Ms-174, Ms-175, and Ms-176, in which Wittgenstein’s remarks on certainty are contained and from which the 1969 edition was compiled, had previously appeared in the Cornell edition (see § Bemerkungen über die Farben). Über Gewißheit must therefore be considered to have the US as its country of origin and it is in the public domain there because it was published without complying with the formalities that were necessary at the time.

Footnotes

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