What exactly is the copyright status of ancient texts in modern editions?

Nobody knows and most of us are too afraid to find out. I’m not a lawyer, and this is not a legal opinion, but it is an opinion about legal matters. Also, copyright legislation differs from country to country, and I am speaking more generally.

Personally I’m of the view that copyright is a bad way to solve the problem of protecting authorial rights, creatives’ incomes, and intellectual property. I am all for authors having rights, creatives generating income for their labour, and intellectual work being rewarded, I am unconvinced that intellectual property law is the best way to do it. Particularly, the analogue of intellectual property to real property is problematic, in that theft involves the deprivation of a good from someone, and copying by definition does not involve theft, but replication.

Nonetheless, we are all living with copyright regimes at the moment, the question is whether they apply to ancient texts. The initial answer would seem to be “no”, because all those texts are well out of the time allowed for copyrights, and have fallen into the Public Domain. Aristotle’s right to protect his work does not persist down to this age.

And yet, ancient texts appear in modern editions – edited volumes put together by textual critics who attempt to present something like (a) a critical edition best conjecturing the original text (with necessary caveats about discussions in the field about what ‘original text’ means, and whether this is even possible/desirable), or (b) an edition edition best conjecturing a single manuscript or a manuscript family, where the author isn’t trying to necessarily construct (a).

Almost every modern edition I’ve seen claims a copyright. On what basis?

Most jurisdictions allow that a derivative work can gain copyrightable status on the basis of creative work, but not on the basis of mere labour, however intensive. The question then becomes, is textual criticism sufficiently ‘creative’ to constitute a new work?

I would argue no, it cannot be on the basis of the purpose of textual criticism itself – to present a text that isn’t new, that doesn’t deviate, that attempts to best faithfully represent what it believes the prior text to be. While textual criticism can, indeed does, involve creativity in decision making, it ought not involve authoring new content ab initio.

This seems to be the finding that occasioned Roger Pearse’s blog post of 2014 on the topic, though I have no follow up on that French case.

To be clear, this view would only apply to the actual text of the ancient work, not to apparatus and critical material, which are indeed copyrighted. Nor am I implying that editorial work is not difficult, laborious, involving intelligence and education, and worthy of decent payment. Copyright is not the answer to that, and it does disservice to those desiring to work with ancient texts.

There are more egregious problems with copyright on ancient texts. I want to close with mention of two glaring ones that irk me particularly. The first is BHS, at least some editions, which claim to basically follow a single text, the Leningrad codex, of the Masoretic Text of the Old Testament. To the extent that an edition preserves and presents a single manuscript, it cannot be copyrighted or copyrightable – reproduction of a text does not create a copyright. Claiming that it does is intellectually dishonest and probably fraudulent.

The second is digitisation. Digitisation is an expensive, laborious, and surprisingly time-intensive task to do. But it does not create copyrights. One notable database of ancient texts, actually more than one, claims not merely to control usage through licensing and Terms of Service (which are other, legally legitimate, but sometimese morally dubious ways to control what users do with texts), but copyright-holder status over its texts, including texts which are clearly in the public domain such as the Migne Patrologia volumes. Digitisation definitely does not count as creative labour, and does not create a copyright for the digitiser. This is fraudulent.

And yet, this is unlikely to be resolved any time soon. Copyright law is big business, is mired in modern concerns that are equally problematic for other reasons, and gets expensive very fast for those found guilty of infringement. To put some of these claims to the test requires financial backing to take them to court, and a willingness to risk academic censure. Simply put, few people who care about these issues are in a position to put this to the test.

The solution, though it is hardly that, is to work around these problems, editions, and institutions. To produce truly open-access texts that are not locked up under copyright, but are freely usable by the scholarly community at large. To do that, too, requires funding, but at least funding that will go into creating usable resources for subsequent generations and not fueling legal fights that may achieve nothing short or long term.