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

This essay in a nutshell: The copyright status of Ludwig Wittgenstein’s works is a more complicated matter than that of 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.

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 mor 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.[1]

Ludwig Wittgenstein died on 29 April 1951. In his las will and testament, he appointed G.E.M. Anscombe, R. Rhees and G.H. von Wright as his literary heirs. It is them, thus, who became the copyright holders for Wittgenstein’s writings.[2]

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.[3]

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.[4] 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,[5] 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.)[6]

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 a separate essay. [link]

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 [link]), or perhaps simply trying to discourage photocopying even public domain texts. As I mentioned above (§), however, adding copyright symbols where they do not belong should be regarded as illegal.

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[7] – but this also has no import as far as copyright and the public domain are concerned.