Dear Jonathan and Dominik,

I just had the very same thoughts. I'm not an expert of law either, but technically speaking, the BORI Mahābhārata is not simply an edition, but a new text created by its editors between 1919 and 1966. The editors are, in this case, actually authors, who obviously transferred their copyright to the still existing BORI. So unless an ancient and complete manuscript appears which contains the very same text as the BORI Mahābhārata (very unlikely, I would say), the BORI holds the copyright of its text. According to German law (mentioned by Dominik), however, it does not – 25 years have long gone past since the publication of the original edition. The co-owned copyright of Prof. Tokunaga (1994), too, would expire this year – in Germany.

Of course, authors also have the copyright to transcriptions of their text – just imagine someone would transcribe a talk you give and then publish it as their own text. I would argue that creating an electronic transcription of a (copyrighted) Devanāgarī text isn't much different.

Best regards,

Dominik A. Haas

Copyright is a slippery beast.  But the law is not *that* difficult in broad outline.

What you say, Jonathan, about not being able to claim copyright over editions, is definitely wrong.  One can.  Authors, editors, and publishers do so all the time.  It's routinely printed on the back of the title page.

There *is* a precedent of some sort specifically in German law that copyright on an edition expires after 25 years, and not the usual 60 or 70 years after the death of the author.  Some other countries are looking at this German law and behaving accordingly.  See 

Margoni, Thomas and Perry, Mark, Scientific and Critical Editions of Public Domain Works: An Example of European Copyright Law (Dis)Harmonization (November 18, 2011). Canadian Intellectual Property Review, Vol. 27, p. 157. Available at SSRN: https://ssrn.com/abstract=1961535 (PDF)

But copyright inheres in all sorts of things.  So, a book contains text written by an author.  The author has copyright of that (unless they sign it away).  But the book also has a certain design, created by a book designer.  That may be subject to copyright, if it is particularly original.  Someone created the typeface and owns the copyright of that.  So you could get the author's permission to photocopy the book and the designer and typeface creators could still sue you for breach of their copyright.  It's all very vexing.

In the case of the Mbh, I think there's a arguable case that BORI owns copyright of the text, but Prof. Tokunaga co-owns copyright of the electronic transcription.  Because he made something new and unique, especially by dividing compounds and so forth, thereby creatively adding original content.

The Wikipedia page on Copyright and on infringement are good, incidentally.  As the latter page says,

Shifting public expectations, advances in digital technology, and the increasing reach of the Internet have led to such widespread, anonymous infringement that copyright-dependent industries now focus less on pursuing individuals who seek and share copyright-protected content online, and more on expanding copyright law to recognize and penalize, as indirect infringers, the service providers and software distributors who are said to facilitate and encourage individual acts of infringement by others.

So while it's unlikely that you personally would be pursued for putting the BORI Mbh on your website, the website maintainer or even hosting business might be pursued.

Best,

Dominik

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