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It must be stressed, however, that for a new “layer” of copyright to be born a ''creative'' effort must be involved.
It must be stressed, however, that for a new “layer” of copyright to be born a ''creative'' effort must be involved.


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


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 true even for faithful, frontal photographs of paintings or other two-dimensional works of art. The example here will be much more relevant: since the original handwritten and typescript notes taken by Wittgenstein are now in the public domain in Europe, the scans that are available on Wittgenstein Source are now in the public domain too. No matter how expensive or time-consuming scanning thousands of pages was, such effort was not of a creative nature, and copyright laws do not cover its output.<ref>Thomas Margoni, ''{{plainlink|[https://web.archive.org/web/20190512145439/http://outofcopyright.eu/wp-content/uploads/2015/03/digitisation_cultural_heritage-thomas-margoni.pdf The digitisation of cultural heritage: originality, derivative works and (non) original photographs]}}'', Institute for Information Law (IViR), Faculty of Law, University of Amsterdam.</ref>
For example, the photograph of a three-dimensional object is universally considered a creative work, because of the choices that need to be made in terms of angle, framing, composition, lighting, focus, focal length, shutter speed, aperture, etc. Even though the Nike of Samothrace is clearly in the public domain, each of the photographs of it that are created daily are protected by copyright.


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>{{plainlink|[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 – 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. 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 original is transcribed into a rich text document the markup of which 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, [[#Contracts, constraints unrelated to intellectual property, and politeness|§ Contracts, constraints unrelated to intellectual property, and politeness]], for a brief comment on “politeness” in this context.</ref>
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 faithful, 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 Europe, the scans that are available on {{plainlink|[http://www.wittgensteinsource.org/ Wittgenstein Source]}} are now in the public domain too. No matter how expensive or time-consuming scanning thousands of pages was, such effort was not of a creative nature, and copyright laws do not cover its output.<ref>Thomas Margoni, ''{{plainlink|[https://web.archive.org/web/20190512145439/http://outofcopyright.eu/wp-content/uploads/2015/03/digitisation_cultural_heritage-thomas-margoni.pdf The digitisation of cultural heritage: originality, derivative works and (non) original photographs]}}'', Institute for Information Law (IViR), Faculty of Law, University of Amsterdam.</ref>


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. In those cases where the editors’ intervention was very significant in selecting and sorting Wittgenstein’s remarks while preparing them for publication, 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 [[Project:Why are some of Wittgenstein’s texts missing from this website?|a separate essay]].
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 {{plainlink|[http://wab.uib.no/index.page Wittgenstein Archives Bergen]}}’s {{plainlink|[http://wab.uib.no/transform/wab.php?modus=opsjoner transcriptions 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. Beside the texts, the XML files created by the WAB include all the information which the originals themselves contain – emphases, strikeouts, alternatives, sidenotes, page breaks, and more – and allow the user to dynamically select which information set should be displayed.<ref>{{plainlink|[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 – 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. 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 a 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 original is transcribed into a rich text document the markup of which 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, [[#Contracts, constraints unrelated to intellectual property, and politeness|§ Contracts, constraints unrelated to intellectual property, and politeness]], for a brief comment on “politeness” in this context.</ref>
 
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. In those cases where the editors’ intervention was very significant in selecting and sorting Wittgenstein’s remarks while preparing them for publication, 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 [[Project:Why are some of Wittgenstein’s texts missing from this website?|a separate essay]].


== Contracts, constraints unrelated to intellectual property, and politeness ==
== Contracts, constraints unrelated to intellectual property, and politeness ==
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[[File:Example_of_abusive_copyrighting.jpg|thumb|left|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 ''{{plainlink|[https://commons.wikimedia.org/wiki/File:Gustave_Moreau_Salom%C3%A9_1876.jpg Salomé dansant]}}'', a painting by Gustave Moreau (1826–1898). The painting is in the public domain everywhere in the world, and the photograph does not meet the requirements for being copyrighted.]]
[[File:Example_of_abusive_copyrighting.jpg|thumb|left|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 ''{{plainlink|[https://commons.wikimedia.org/wiki/File:Gustave_Moreau_Salom%C3%A9_1876.jpg Salomé dansant]}}'', a painting by Gustave Moreau (1826–1898). The painting is in the public domain everywhere in the world, and the photograph does not meet the requirements for being copyrighted.]]


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 {{plainlink|[https://en.wikipedia.org/wiki/Threshold_of_originality threshold of originality]}}), or perhaps simply trying to discourage photocopying even public domain texts. As I mentioned above ([[#Introduction. The purpose of copyright and the public domain|§ Introduction. The purpose of copyright and the public domain]]), however, adding copyright symbols where they do not belong should be regarded as illegal.
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 {{plainlink|[https://en.wikipedia.org/wiki/Threshold_of_originality threshold of originality]}}) or perhaps simply trying to discourage photocopying even public domain texts. As I mentioned above ([[#Introduction. The purpose of copyright and the public domain|§ Introduction. The purpose of copyright and the public domain]]), however, adding copyright symbols where they do not belong should be regarded as illegal.


Other restrictions, then, may apply that sometimes make the picture more complicated.
Other restrictions, then, may apply that sometimes make the picture more complicated.
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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 with their work. 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’s clear that the parody or distortion is attributable to the remixer, and not to the author. Moral rights have no import as far as copyright and the public domain are concerned, and no financial import whatsoever. In some countries, they do not expire.
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 with their work. 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’s clear that the parody or distortion is attributable to the remixer, and not to the author. Moral rights have no import as far as copyright and the public domain are concerned, and no financial import whatsoever. In some countries, they do not expire.


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 pictures – 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 faithful reproductions of two-dimensional works. 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<ref>{{plainlink|[https://wittgenstein-initiative.com/unesco-certificate-and-nomination-form/ UNESCO Certificate and Nomination Form]}}, 25 January 2018.</ref> – but this also has no import as far as copyright and the public domain are concerned.
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 pictures – 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<ref>{{plainlink|[https://wittgenstein-initiative.com/unesco-certificate-and-nomination-form/ UNESCO Certificate and Nomination Form]}}, 25 January 2018.</ref> – 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 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 and, at least, complementarity. This is as good a place as any to say that if the Ludwig Wittgenstein Project failed to comply with these basic rules of manners it was not because of a slapdash attitude, but because of a failure to identify some of the many stakeholders.
Finally, even in the arid landscape of copyright law and 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 failed to comply with these basic rules of manners it was not because of a slapdash attitude, but because of a failure to identify some of the many stakeholders.


== Copyright in the age of the internet ==
== Copyright in the age of the internet ==
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