Digital Media, Copyright, and the Future of Academic Cultural Criticism

When, as happens in many cases, a company that owns the intellectual property of a song, movie, image, or other cultural object included in a YouTube video submits successfully a DMCA takedown notice, does that, in and of itself destroy culture?

Consider a novel. When there is a concept or idea pivotal to a paper being written by an academic attempting to prove a point, that point is supported by an argument that includes evidence in the form of citations. If the novel is illustrative of the point or an aspect therein, it is included in the paper’s citations. This novel, as a cultural object, represents a portion of the foundation of an argument that seeks to illustrate an observation that, bluntly, is more than the novel examined alone. Thus, the novel represents part of a new cultural work (the paper), and the paper is dependent on the novel’s existence for its existence. Currently, publishers do not require that novels “disappear” under certain circumstances, nor do they have the ability to remove a novel from libraries, bookstores, or homes.

Now, consider the example of a piece of media on YouTube, created by a YouTube user, that is perfectly communicative of a given cultural trend or a larger body of cultural work that is becoming pervasive at the time of its inception. When this object of culture, which happens to be situated on YouTube, is observed it is simply a piece of media – this includes both visual and aural aspects of the YouTube video. Suppose an academic, or for the purposes of this argument, any person who considers him or herself a part of culture who can comment on this video in the context of culture, begins to form an argument centered around that video. In its final form, the argument represents more than just the YouTube video (or videos as the case may be), and represents a new cultural object, separate entirely from the video by which its creator was inspired.  Thus the author references that video in his or her argument as evidence of a larger cultural trend.

Suppose the video evidenced includes known copyrighted music by a large rights-owning organization such as Warner Music or Sony BMG. YouTube is required to remove a video that utilizes some form of copyrighted material, iff the rights-holding organization requests its removal. However, given that this video has now been inspiration for and acts as evidence/grounding for a new and separate cultural work,  does the right to view this video remain in the hands of that rights-holding organization? The video clearly embodies more meaning than can be attributed to its soundtrack or the nature of its visual elements – the video represents a piece of culture created separately from its elements and its meaning cannot be attributed only to an element such as a portion of its soundtrack.

Furthermore, now that this video is the basis for the creation of a new piece of culture, where lie the rights to its existence? Does an organization that owns a piece of the aural or visual elements of the work retain the right to remove this object from culture?

If the video is removed, where does that leave the derivative work that relies on the video to illustrate a trend or aspect of culture? The observation remains valid, but the argument does not.

This “veto” should not lie in the hands of an organization that has no true stake in the created culture. Each piece of culture created is more than the sum of the visual/aural elements by which it is characterized. Further, the ability of a rights-holder to remove a piece of culture from existence, to make it inaccessible to the culture by which it was created, nullifies the institution of academic observation and criticism that has driven our understanding of cultural trend and meaning throughout history.

The conceptual assertions “YouTube is culturally significant” and “The broadcast rights of rights-holding organizations for media must be controlled legally and are of utmost importance” are in direct opposition, and cannot be reconciled without a retooling of both copyright law and the legal system by which it is harbored.

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