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

Before starting to talk about Wittgenstein and his writings, it is important to briefly discuss the purpose of copyright and its general logic. This will help us gain a better understanding of the ethics behind the laws and make sense of what copyright is and what it is not.

Thus, the aim of copyright is, among other things, to make creativity viable on the market by giving authors monopoly over the distribution of the copies of their works. By being the only authorised sellers of those works, albeit often with the intermediation of a publisher, or a label, etc., authors may be able to secure an income.

The rationale for the finite duration of the copyright term lies, firstly, in the concept that the circulation of ideas through the replication of works of art (and fiction, and nonfiction) is in the interest of the human community, and not only in the interest of the author and their heirs; and, secondly, it lies in the concept that if such circulation is free not only in the sense of “freedom”, but also in the sense of “free of cost”, the interest of the human spirit will be much better served.

In other words, the “spirit” of copyright laws is that:

* when the author dies, the abovementioned rights belong, equally exclusively, to the author’s legal heirs for a period of time that, generally speaking, may vary from 30 to 100 years (but is usually 50 or 70);

* then, when the copyright term expires, the work enters the public domain, which means that anyone is legally entitled to copy it, distribute it, sell it, modify it; 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, [[#Contracts, constraints unrelated to intellectual property, and politeness|§ Contracts, constraints unrelated to intellectual property, and politeness]]).

The public domain is meant to be a guarantee that culture is not forever subject to the monetary laws of buying and selling. In spite of local differences in copyright legislation, it is remarkable that in every last country on Earth the copyright term is finite, and ''all'' jurisdictions share the moral understanding that it is right for the public to eventually be free to do anything they want with a piece of writing, music, visual art, etc.

== A very short history of the rights on Wittgenstein’s writings ==

<div class="custom-mobile-only">[[File:World copyright-terms nokey.svg|thumb|center]] [[file:World copyright-terms key wide plain.svg|thumb|center]]</div>

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>

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.  

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>

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 second point 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 files 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.; here, again, the transcriber can then be said to be responsible for an interpretation, and, again, where there is a margin for interpretation (when the multiplicity of the text is not exactly the multiplicity that is needed for the transcription to be unequivocal), there is room for originality too.

=== The authorship issue ===

Except for the ''Tractatus'', all of Wittgenstein’s philosophy ''books'' were published posthumously. In some cases, for example that of the ''Philosophical Investigations'', Wittgenstein himself came very close to having the book ready for the printing press; in some others, for example that of ''On Certainty'', he marked a few sections of his notebooks in such a way as to make it clear that they belonged together, which, in turn, was taken by the literary executors to be a strong indication that it would make sense to publish them as a standalone work. In such instances, very little room was left for the editors to be original or creative, and it would be difficult to argue that what they did with Wittgenstein’s own writings in order to turn them into books generated a new layer of copyright.

In yet other cases, however, the editors’ intervention was very significant in selecting and sorting Wittgenstein’s remarks while preparing them for publication, so that originality or creativity may be said to have been involved. The best example of this is probably G.H. von Wright’s editing of ''Culture and Value''. In such instances, 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.

== Contracts, constraints unrelated to intellectual property, and politeness ==

Regardless of the agreements that copyright holders and publishers may have, however, the expiry of the copyright term is always a sufficient condition for the work to be in the public domain. No contract has the power to extend copyright protection beyond the term defined by the local legislation.

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 to their work. In some countries, they do not expire. 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 is clear that the parody or distortion is attributable to the remixer, and not to the author. Moral rights have limited import as far as copyright and the public domain are concerned: insofar as they entail the obligation to attribute authors, for example, they do restrict the scope of what cen be done with public domain works, since by the definition of public domain alone attributing authors whose copyright expired would not be compulsory;<ref>The author of this essay would like to thank Dr Nicolas Bell of Trinity College for providing a comment thanks to which the early, incorrect wording of this sentence was corrected.</ref> however, they entirely lack the characteristic feature of copyright laws that has to do with establishing someone’s monopoly on a set of works. Moral rights have no financial import whatsoever.

Finally, even in the arid landscape of copyright law and the 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 were to fail to comply with these basic rules of manners it would not be because of a slapdash attitude, but because of a failure to identify some of the many stakeholders.

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 the Creative Commons licences, which will be briefly discussed below, in [[#The Creative Commons licences|§ The Creative Commons licences]]. 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,<ref>More information on the Berne Convention, as well as the full text of the document, can be found on the website of the WIPO (World Intellectual Property Organization): {{plainlink|[https://www.wipo.int/treaties/en/ip/berne/index.html Berne Convention for the Protection of Literary and Artistic Works]}}.</ref> adopted in 1886 and last amended in 1979. This document establishes that signatory countries must grant copyright protection to all works that have another signatory country as their country of origin.

* Creative Commons Attribution – ShareAlike (CC BY-SA): the work can be used for all purposes, but the author must be credited and derivative works, if any, must also be licenced under CC BY-SA;

* Creative Commons Attribution – NonCommercial (CC BY-NC): the work can be used for non-commercial purposes only; the author must be credited;

Creative Commons Attribution and Attribution – ShareAlike are considered “free” licences because they allow reusing the work for any purpose, including commercially, and remixing it; in this sense, the other licences are “non-free”, even though they still allow reusing the work and, in some cases, remixing it under stricter conditions.

In this section, we will apply the concepts described above in order to clarify the copyright status of Wittgenstein’s works.<ref>Information about first editions was taken from Alois Pichler, Michael A. R. Biggs, Sarah Anna Szeltner, “{{plainlink|[https://www.researchgate.net/publication/305935004_Bibliographie_der_deutsch-_und_englischsprachigen_Wittgenstein-Ausgaben Bibliographie Der Deutsch- Und Englischsprachigen Wittgenstein-Ausgaben]}}”, in ''Wittgenstein-Studien'', 2011 (updated 2019) ({{plainlink|[https://www.researchgate.net/publication/305935004_Bibliographie_der_deutsch-_und_englischsprachigen_Wittgenstein-Ausgaben archived URL]}}).</ref> We will limit ourselves to those that have been published on the Ludwig Wittgenstein Project’s website<!-- or might be in the short-to-medium term-->, thereby excluding those texts where the editors may have to be counted as co-authors.

The information is valid and up to date as of July 2022. Copyrights that are still standing will gradually expire in the coming years and decades.

Their country of origin is the US.<ref name="simultaneous">According to the Berne Convention, “The country of origin shall be considered to be: (a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection [...]” (art. 5, par. 4). The definition of “simultaneous publication” is publication in multiple countries within 30 days (see art. 3, par. 4). We haven’t been able to prove that in the 1950s the ''Journal of Philosophy'' consistently reached its Canadian or European subscribers within 30 days of the publication in the US, but we haven’t been able to conclusively rule it out either. If it were possible to prove that this was the case in at least one country with a 50 or 70 years P.M.A. copyright term, then the ''Notes on Logic'' would count as simultaneously published in the US and in that country; therefore, per the Berne Convention, they would have that country as their country of origin; therefore, per the copyright laws of that country, they would now be in the public domain in their country of origin.</ref> 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 {{Plainlink|[https://commons.wikimedia.org/wiki/Commons:Hirtle_chart Hirtle chart]}},<ref name="hirtle-chart"/> 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 US; if it wasn’t, the text is now in the public domain in the US. Lacking further information, it should be assumed that the copyright on this text was renewed. Assuming that it was indeed renewed, then the duration of its copyright term is 95 years from the publication date, meaning that it will enter the public domain the US on 1 January 2053.<ref name="hirtle-chart" />

=== Notes Dictated to G.E. Moore in Norway ===

Additionally, it is in the public domain in the United States because it was published in 1926 and everything that was published before 1 January 1927 is now in the public domain in the US.

=== Some Remarks on Logical Form ===

Its country of origin is the US.<ref name="simultaneous"/>

=== Bemerkungen über Frazers “The Golden Bough” ===