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

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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.


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. From this point of view, the fact that the WAB transcriptions are so thorough and contain information about all the details of the original (including things, such as the position of those line breaks that are not paragraph breaks, that would normally be ignored when copying a text) only makes it more difficult to consider the work that went into their production to be of a creative nature: no room for filtering out unimportant details was left and the task of the transcriber was only that of meticolousness.
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.


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 ''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 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. 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: 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.




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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.
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.<ref>''The Wittgenstein Papers'', Cornell University Libraries, Ithaca (NY) 1968. For more information, see A. Pichler, “{{plainlink|[https://www.inst.at/trans/10Nr/pichler10.htm Encoding Wittgenstein. Some Remarks on Wittgenstein’s ''Nachlass'', the ''Bergen Electronic Edition'', and future electronic publishing and networking”]}}, in ''Trans. Internet-Zeitschrift für Kulturwissenschaften'', no. 10, January 2022, retrieved 30 July 2022 ({{plainlink|[https://web.archive.org/web/20220730162159/https://www.inst.at/trans/10Nr/pichler10.htm archived URL]}}).</ref> 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”<ref>“‘Publication’ is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Title 17 of the United States Code (17 U. S. C.) §101. By this definition, there is no minimum number of copies to be attained for the distribution to count as a publication, nor there is the need for a formal registration or commercialisation. As Peter Hirtle writes, however, the following should be noted: “‘Publication’ was not explicitly defined in the Copyright Law before 1976, but the 1909 Act indirectly indicated that publication was when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.” See ''{{plainlink|1=[https://guides.library.cornell.edu/copyright/publicdomain Copyright Term and the Public Domain]}}'', Cornell University Library, retrieved 30 July 2022 ({{plainlink|[https://web.archive.org/web/20220711133814/https://guides.library.cornell.edu/copyright/publicdomain archived URL]}}). The 1909 indication seems to stress commercialisation more than Title 17 does; at any rate, it seems that the Cornell edition was indeed sold to research institutes worldwide: see A. Pichler, “{{plainlink|[https://www.inst.at/trans/10Nr/pichler10.htm Encoding Wittgenstein. Some Remarks on Wittgenstein’s ''Nachlass'', the ''Bergen Electronic Edition'', and future electronic publishing and networking”]}}, in ''Trans. Internet-Zeitschrift für Kulturwissenschaften'', no. 10, January 2022, retrieved 30 July 2022 ({{plainlink|[https://web.archive.org/web/20220730162159/https://www.inst.at/trans/10Nr/pichler10.htm archived URL]}}).</ref> and the ''Bemerkungen über die Farben'', which were part of this publication,<ref>M. Biggs, A. Pichler, “Wittgenstein: Two Source Catalogues and a Bibliography. Catalogues of the Published Texts and of the Published Diagrams, each Related to its Sources”, in ''Working Papers from the Wittgenstein Archives at the University of Bergen'', no. 7, 1993.</ref> 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.<ref name="hirtle-chart" /> 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.
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.<ref>''The Wittgenstein Papers'', Cornell University Libraries, Ithaca (NY) 1968. For more information, see A. Pichler, “{{plainlink|[https://www.inst.at/trans/10Nr/pichler10.htm Encoding Wittgenstein. Some Remarks on Wittgenstein’s ''Nachlass'', the ''Bergen Electronic Edition'', and future electronic publishing and networking]}}, in ''Trans. Internet-Zeitschrift für Kulturwissenschaften'', no. 10, January 2022, retrieved 30 July 2022 ({{plainlink|[https://web.archive.org/web/20220730162159/https://www.inst.at/trans/10Nr/pichler10.htm archived URL]}}).</ref> 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”<ref>“‘Publication’ is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Title 17 of the United States Code (17 U. S. C.) §101. By this definition, there is no minimum number of copies to be attained for the distribution to count as a publication, nor there is the need for a formal registration or commercialisation. As Peter Hirtle writes, however, the following should be noted: “‘Publication’ was not explicitly defined in the Copyright Law before 1976, but the 1909 Act indirectly indicated that publication was when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.” See ''{{plainlink|1=[https://guides.library.cornell.edu/copyright/publicdomain Copyright Term and the Public Domain]}}'', Cornell University Library, retrieved 30 July 2022 ({{plainlink|[https://web.archive.org/web/20220711133814/https://guides.library.cornell.edu/copyright/publicdomain archived URL]}}). The 1909 indication seems to stress commercialisation more than Title 17 does; at any rate, it seems that the Cornell edition was indeed sold to research institutes worldwide: see A. Pichler, “{{plainlink|[https://www.inst.at/trans/10Nr/pichler10.htm Encoding Wittgenstein. Some Remarks on Wittgenstein’s ''Nachlass'', the ''Bergen Electronic Edition'', and future electronic publishing and networking”]}}, in ''Trans. Internet-Zeitschrift für Kulturwissenschaften'', no. 10, January 2022, retrieved 30 July 2022 ({{plainlink|[https://web.archive.org/web/20220730162159/https://www.inst.at/trans/10Nr/pichler10.htm archived URL]}}).</ref> and the ''Bemerkungen über die Farben'', which were part of this publication,<ref>M. Biggs, A. Pichler, “Wittgenstein: Two Source Catalogues and a Bibliography. Catalogues of the Published Texts and of the Published Diagrams, each Related to its Sources”, in ''Working Papers from the Wittgenstein Archives at the University of Bergen'', no. 7, 1993.</ref> 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.<ref name="hirtle-chart" /> 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 ===