Project:The copyright status of Wittgenstein’s works: Difference between revisions

* then, when the copyright term expires, the work enters the public domain, which means that anyone is legally entitled to copy, distribute, sell, modify the work; 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, § ''Copyright, contracts, and constraints unrelated to intellectual property'').

A verbatim transcription configures the same scenario. As no creativity is involved, for example, an HTML document that reproduces the text and the formatting of one of Wittgenstein’s manuscripts is not of itself eligible for copyright protection and is in the public domain if the original is. In the context of Wittgenstein studies, the case of the Wittgenstein Archives Bergen’s transcription of the ''Nachlass'' must 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 – emphases, strikeouts, alternatives, sidenotes, page breaks, and much more – and make it possible for the user to select which information set should be dynamically displayed.<ref>{{plainlinks|[http://wab.uib.no/index.page The Wittgenstein Archives at the University of Bergen (WAB)]}}</ref> It is impossible to overestimate the importance of this resource, and the generosity behind the decision – by Trinity and the WAB – of making 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. However, this effort cannot count as a creative one. A transcription, even or rather ''especially'' a rich transcription that reproduces all the features of a handwritten or typewritten document, is a 1-to-1 substitution of some visual feature with the corresponding XML tag. If multiple people were to transcribe the same text, the output would have to be absolutely identical: this is enough reason to consider the activity as a non-creative activity. The same argument, however, can perhaps be expressed in an even more striking way: once a handwritten or typewritten paper original is transcribed into a rich text document whose markup incorporates all the information that was present in the original itself, this can (and must, for this is the whole point of the procedure) then 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,<ref>[[Tractatus Logico-Philosophicus (English)#4.04|''Tractatus Logico-Philosophicus'', 4.04]].</ref> 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 than the actual original.)<ref>Of course, the Ludwig Wittgenstein Project has no intention to duplicate the WAB’s excellent work and even less to overshadow it. The scope of our project is, and is meant to be, complementary to theirs, in that we aim at making edited ''Leseausgaben'' available as opposed to “raw” source materials and our target audience is the general public as opposed to the academics. Se the following section, [[#Copyright, contracts, politeness, and constraints unrelated to intellectual property|§ Copyright, contracts, politeness, and constraints unrelated to intellectual property]], for a brief comment on “politeness” in this context.</ref>

== Copyright, contracts, politeness, and constraints unrelated to intellectual property ==

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 Creative Commons licences, which will be briefly discussed in § …. Other than that, the world’s copyright system is not designed for the digital age, and often seems to be altogether unfit for it.

As far as copyright is concerned, international relations are still largely regulated by the Berne Convention,[8] adopted in 1886. This document establishes that signatory countries must grant copyright protection to all works that have another signatory country as their country of origin.

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.[9]

This is, for example, the policy of Wikimedia projects,[10] 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,[11]  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 […]”[12]

* 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;

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.[13] The three freedoms are:

Its country of origin is the US.[15] 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 [link], 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 U.S.; if it wasn’t, the text is now in the public domain in the US. Although a relatively small percentage of the works from this period had their copyright renewed with the US copyright office, it should not be assumed that this issue of the ''Journal of Philosophy'' was not. In order to determine until what date the text will be copyrighted, it would be necessary to know the details of the renewal; in what would be a worst case scenario from the point of view of free culture, the date would be calculated as follows: the text was published in 1957 and copyright was renewed at the latest possible moment before expiry, i.e., in 1957 + 28 = 1985; the second term, in 1985, had a duration of 47 years, meaning that it will expire in 1985 + 47 = 2032 and the text will enter the public domain in the US on 1 January 2033.

However, in February 2017 the text of Wittgenstein’s Ts-201a1 and Ts-201a2 were released by the copyright holders – The Master and Fellows of Trinity College, Cambridge; Bertrand Russell Archives at McMaster University Library, Hamilton, Ontario; University of Bergen, Bergen – under the terms of the Creative Commons Attribution-NonCommercial 4.0 International licence. 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. 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, that is, 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 non-free Creative Commons licence such as CC BY-NC: 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. Now, CC BY-NC does not prohibit derivative works (for it does not include the “ND”, “NoDerivs” 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 LWP’s translations have been published under CC BY-SA.

Its country of origin is the US.[16]

However, in February 2017 the text of Wittgenstein’s Ts-207 was released by the copyright holders – The Master and Fellows of Trinity College, Cambridge and the University of Bergen, Bergen – under the terms of the Creative Commons Attribution-NonCommercial 4.0 International licence. 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.