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[Networked] Memory Institutions: Social Remembering, Privatization and its Discontents

79 Pages Posted: 18 Jan 2008 Last revised: 31 Mar 2016

Guy Pessach

Hebrew University of Jerusalem - Faculty of Law; Yale University Law School - Affiliate Fellow, Information Society Project

Abstract

Memory institutions are social entities that select, document, contextualize, preserve, index and thus canonize elements of humanity's culture, historical narratives, individual and collective memories. Archives, museums and libraries are paradigmatic examples for traditional memory institutions. Content-sharing platforms, social networks, peer-to-peer file-sharing infrastructures, digital images agencies, online music stores and search engines' utilities represent emerging novel entities with a de-facto derivative function as networked memory institutions. This article includes an in-depth inquiry regarding the manners in which digitization and networked communication technologies implicate on the identity, structure and attributes of society's memory institutions. More specifically, I focus on privatization processes that networked memory institutions are increasingly undergoing. My basic hypothesis is that the transformation from tangible/analogue preservation to digitized cultural retrieval tends to result in intense privatization of society's memory institutions - both traditional and novel ones. Among other aspects, I examine the fundamental role of copyright law in facilitating and supporting these dynamics of privatization.

The article then analyzes the consequences of privatizing memory institutions in the light of their unique social functions in a democratic culture. Commercialization and unequal participation are two elements that characterize privatized memory institutions and that may conflict with a democratic vision of social remembering. Privatized memory institutions also avoid institutional separation between the social function of cultural production and the social function of cultural preservation. The resulted outcome is that groups and sectors with dominant positions in contemporary media are able to reproduce, leverage and manipulate their social dominance from one generation to another. The power to remember, as well as the power to forget, is thus gradually being concentrated in clusters of commercial enterprises with very particular interests, beliefs, ideologies and preferences.

I conclude with several reform proposals for deprivatizing networked memory institutions. As general matter of policy, reduced copyright protection is also likely to result in an equilibrium that strengthens the capacities of public-oriented memory institutions while reducing the incentives - and therefore the dominance - of commercial intermediaries entering this field. More specifically, I focus on two distinct types of reforms. One type of reform proposals focuses on ex-ante copyright privileges for networked memory institutions. The second type of reforms introduces my novel proposal to impose ex-post obligations on networked memory institutions. I argue that deprivatization of memory institutions requires also regulation that takes into account and moderates imbalanced proprietary regimes of networked memory institutions. Based on this argument, I offer a complementary set of reciprocal share-alike obligations that come on top of the general ex-ante privileges that memory institutions should benefit from.

Keywords: Memory Institutions, Copyright, Fair-Use, Social Remembering, Privatization

Suggested Citation

Pessach, Guy, [Networked] Memory Institutions: Social Remembering, Privatization and its Discontents. Cardozo Arts & Entertainment Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1085267 or http://dx.doi.org/10.2139/ssrn.1085267

Guy Pessach (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus, 91905
Israel

Yale University Law School - Affiliate Fellow, Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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