A Right to Be Remembered: A Task for Copyright Laws

Ever since the decision of the Court of Justice of the European Union to allow people to request the removal of articles that violate their right to a private life from search results about them, the notion of a ‘Right to be Forgotten’ as entered the language.

It is not uncontroversial. Supporters highlight the possibility it offers for people to leave past minor misdemeanours behind them (especially once they have served their time), or to protect themselves against damage to their reputation, for example from allegations or charges which were never proven to the true.

Opponents worry that such provisions can be used to make it more difficult to find out about the past activities of people in power, and even the deletion of records (not just their removal from search results). The fact that decisions as to who has this right are effectively left to private companies also worries some.

In parallel, however, some commentators have pointed out the relevance of thinking about a ‘right to be remembered’.

This blog starts by exploring some of the different ways in which this has been talked about already as an idea, before underlining its relevance in a digital age, and finally setting out how this could manifest itself in copyright laws. In doing so, it covers much of the same ground as the UNECO 2015 Recommendation on Documentary Heritage.


From Forgetting to Remembering

Soon after the idea of the ‘Right to Be Forgotten’ appeared, that of a ‘Right to Be Remembered’ also popped up.

For some, the concept was an excuse to justify the collection of data about customers in order to offer them an ‘improved’ customer experience on websites.

However, already in 2015, Irina Raicu from the Markkula Centre for Applied Ethics at Santa Clara University in 2015 talked about being remembered as a  ‘privilege’, raising the idea of the importance of ensuring that individual stories are not lost. In particular, she highlights the importance of ensuring that the names of Holocaust victims where known, in order to promote awareness of what happened.

An article published by people involved in the High Atlas Foundation went further, suggesting that creating a right for communities to protect and preserve their heritage, and have autonomy over its safeguarding should be added to the Universal Declaration of Human Rights.

In this, it made the connection with the practices of many Western institutions in the past in appropriating elements of heritage from other cultures (often seen as inferior), and supported efforts at restitution.

This work does also highlight the issue, increasingly recognised in the library field, of the need to reconsider practices that risked treating knowledge and experience from much of the world and its populations, consciously or unconsciously, as inferior. In doing so, this has led to a situation where some groups’ lives have been more easily forgotten, allowing our image of the past to be distorted.

In parallel, we also have more conscious efforts to eradicate the experience of individuals or groups from history altogether, either through the altering of existing records, or the deliberate destruction of materials that testify to people’s existence.

In short, we can argue that individuals and groups should have the possibility to be remembered, and their experiences and contributions valued by those who come after.

Indeed, this could be seen as an element of the cultural rights offered by international law; future generations risking seeing these rights jeopardised if the memory of those who have come before – their ancestors – is simply wiped away.


New Possibilities

The emergence of the internet, and its spread to a greater and greater share of the global population have meant that there are now more opportunities than ever before to share stories, ideas and experiences.

It is no longer the case that only those with access to a printing press and a distribution network can share their ideas, experiences, and knowledge widely, through websites, blogs, social media, and beyond.

However, the possibility to be heard today is not the same thing as the possibility to be heard in future. The internet is a poor preserver of material. Materials published there, or otherwise in digital form, can easily be lost, and so the knowledge and experience of their creators forgotten.

Ironically, in parallel, in a world so focused on digital access, the same fate also risks befalling physical works, which are less easily found and accessed. And in the meanwhile, the intensification of the consequences of climate change risk seeing whole collections of memory destroyed.

This is where libraries, archives and museums can step in, with a mandate to ensure as broad a preservation of the experience of today for the benefit of tomorrow. This is a key social function, an investment today in ensuring the possibility for future generations to learn, to carry out research, and to enjoy their cultural rights.

In other words, the right to be remembered depends on having libraries, archives, museums and other heritage actors and institutions, tasked with preserving the memory of all cultures, libraries, archives and museums, and giving access to it.

It is clearly not something that can be left to the market. We cannot put a price on the value of memory or of the cultural rights it supports, just as we cannot charge our future selves for the cost of this work today. We need empowered libraries, archives and museums to fil the gap.

Clearly, this is work that needs to be taken forwards in line with ethical principles, in particular as regards Indigenous peoples, with collections built and managed in a way that respects the interests of the groups affected. There is growing awareness of how this can be done, in parallel with wider efforts to ensure that collections practices reflect the communities our institutions serve.


Acting for a Right to Be Remembered

A number of the elements that need to be in place for a Right to Be Remembered are already covered above – heritage institutions with the resources necessary to safeguard the knowledge and experience of the present and past, as well as collections policies and practices that promote inclusion while also respecting the interests of Indigenous groups in particular.

Yet beyond this, there is also the question of how to ensure that copyright laws do not end up representing a barrier to the right to be remembered.

This is a distinct possibility. Copyright already applies to works regardless of whether there is any intention to exploit them commercially. Even for works which are produced with a market in mind, for all but a tiny minority the term of protection extends far beyond their commercial lifespan.

In fulfilling their mission to defend the right to be remembered, libraries, archives and museums do risk running into blockages, being forbidden to take preservation copies of in-copyright works, in the most appropriate format, unless they seek permission (which may be impossible) or pay remuneration (which diverts resources away from the work of preservation itself).

This is the case in the 70% of countries which do not offer libraries, archives and museums a guarantee of being able to preserve works using whatever technology is most appropriate. Only among the 27 countries of the European Union is there (supposed to be) a clear possibility to form cross-border partnerships for preservation, helping ensure most effective use of resources and expertise.

As highlighted above, simply leaving the Right to Be Remembered to the market is unlikely to be an effective strategy. We tend to discount the value of access to knowledge for future generations, and of course even just the potential of earning revenues on a work in the short-term may prove too strong a temptation for rightholders.

Importantly, the Right to Be Remembered cannot be effective if works containing memory are locked away. While, of course, the Right to Be Remembered should not in itself mean the loss of the right to exploit a work commercially, it is meaningless if it is not accompanied by the possibility for people to access this memory. Cultural rights do not only apply to works that are old enough to have fallen into the public domain.

As the UNESCO 2015 Recommendation notes as early as its title, preservation and access must go hand in hand.

In short, if we are to take the Right to Be Remembered seriously, we need to ensure that institutions charged with making this right a reality themselves are guaranteed the possibility under copyright law to do whatever is necessary to preserve knowledge and experience, and to provide access to this knowledge in ways that do not jeopardise commercial exploitation.