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Project:The copyright status of Wittgenstein’s works: Difference between revisions
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=== Transcriptions and originality === | === Transcriptions and originality === | ||
The general rule | 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. | 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. | ||
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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. | 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 | 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 {{plainlink|[http://www.wittgensteinsource.org/ 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.<ref>For further details on this subject, see 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, p. 51.</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 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 {{plainlink|[http://www.wittgensteinsource.org/ 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.<ref>For further details on this subject, see 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, p. 51.</ref> | ||
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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 websites’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, regarless 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. | 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 websites’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, regarless 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 | 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,<ref>See [[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 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 indivual 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 familar 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. | 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 indivual 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 familar 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. | ||
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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 {{plainlink|[http://wab.uib.no/index.page Wittgenstein Archives Bergen]}}’s <span class="plainlinks">[http://wab.uib.no/transform/wab.php?modus=opsjoner transcriptions of the ''Nachlass'']</span> must now be discussed explicitly. | 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 {{plainlink|[http://wab.uib.no/index.page Wittgenstein Archives Bergen]}}’s <span class="plainlinks">[http://wab.uib.no/transform/wab.php?modus=opsjoner transcriptions of the ''Nachlass'']</span> must now be discussed explicitly.<ref>Of course, the Ludwig Wittgenstein Project has no intention to duplicate the WAB’s excellent work and even less to attempt to overshadow it. The scope of our project is, and is meant to be, complementary to theirs, in that we aim to make 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> | ||
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 cannot count as a creative one. | 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 cannot count as a creative one. | ||
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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 faithtul 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. | 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 faithtul 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 is that, even though the WAB’s transcriptions are produced in accordance with the strict rules based on the {{plainlink|[https://en.wikipedia.org/wiki/Text_Encoding_Initiative TEI Guidelines]}}, in many cases the transcriber was forced to propose what we may call an interpretation. This is not only because, unlike printed texts, Wittgenstein’s handwritten texts maybe difficult to decipher on the grounds of the quality of the author’s penmanship; it is also and perhaps most importantly because often more than one way of encoding the text was consistent with the rules.<ref>In A. Pichler, “{{plainlink|[http://wab.uib.no/alois/pichler-kirchb95a.pdf Transcriptions, Texts and Interpretation]}}”, in Kjell S. Johannessen and Tore Nordenstam (eds.) ''Culture and Value. Beiträge des 18. Internationalen Wittgenstein Symposiums. 13.-20. August 1995 Kirchberg am Wechsel'', ALWG, 1995, p. 695, retrieved 20 November 2022 ({{plainlink|[https://web.archive.org/web/2/http://wab.uib.no/alois/pichler-kirchb95a.pdf archived URL]}}, Alois Pichler argues that “transcription work is essentially selective and interpretational in nature”. While this may be too bold a wording and a claim so strong as to undermine the authority of the WAB’s transcriptions, in the same paper (pp. 693–694) he lists several good reasons why the WAB’s transcription cannot count as | The first is that, even though the WAB’s transcriptions are produced in accordance with the strict rules based on the {{plainlink|[https://en.wikipedia.org/wiki/Text_Encoding_Initiative TEI Guidelines]}}, in many cases the transcriber was forced to propose what we may call an interpretation. This is not only because, unlike printed texts, Wittgenstein’s handwritten texts maybe difficult to decipher on the grounds of the quality of the author’s penmanship; it is also and perhaps most importantly because often more than one way of encoding the text was consistent with the rules.<ref>In A. Pichler, “{{plainlink|[http://wab.uib.no/alois/pichler-kirchb95a.pdf Transcriptions, Texts and Interpretation]}}”, in Kjell S. Johannessen and Tore Nordenstam (eds.), ''Culture and Value. Beiträge des 18. Internationalen Wittgenstein Symposiums. 13.-20. August 1995 Kirchberg am Wechsel'', ALWG, 1995, p. 695, retrieved 20 November 2022 ({{plainlink|[https://web.archive.org/web/2/http://wab.uib.no/alois/pichler-kirchb95a.pdf archived URL]}}, Alois Pichler argues that “transcription work is essentially selective and interpretational in nature”. While this may be too bold a wording and a claim so strong as to undermine the authority of the WAB’s transcriptions, in the same paper (pp. 693–694) he lists several good reasons why the WAB’s transcription cannot count as literatim transcriptions.</ref> 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 is that the WAB’s transcriptions also make Wittgenstein’s implicit references to people and books explicit:<ref>A. Pichler, ''Transcriptions, Texts and Interpretation'', p. 695.</ref> embedded in the XML file 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.; at least in some cases, a margin of uncertainty certaintly existed and the transcriber can then be said to have carried out an interpretation, and again where there is margin for interpretation (when the multiplicity of the text is not exactly the multiplicity needed for the transcription to be unequivocal), then there is room for originality too. | The second is that the WAB’s transcriptions also make Wittgenstein’s implicit references to people and books explicit:<ref>See A. Pichler, ''Transcriptions, Texts and Interpretation'', p. 695.</ref> embedded in the XML file 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.; at least in some cases, a margin of uncertainty certaintly existed and the transcriber can then be said to have carried out an interpretation, and again where there is margin for interpretation (when the multiplicity of the text is not exactly the multiplicity needed for the transcription to be unequivocal), then 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, unlinke 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.<ref>This claim is made explicitly by Pichler in A. Pichler, ''Transcriptions, Texts and Interpretation'', p. 690.</ref> | 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, unlinke 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.<ref>This claim is made explicitly by Pichler in A. Pichler, ''Transcriptions, Texts and Interpretation'', p. 690.</ref> | ||