In a recent posts on the University of Chicago Faculty blog & Concurring Opinions, and in articles in the New York Times and the Guardian, the long strange story of Kafka’s unpublished during his lifetime writings were discussed. Part of what makes the story so strange is that Kafka specifically directed that his writings be destroyed after his death; instead many were published by his executor, including The Trial.
The heirs of the executor are
keeping scholars and archivists up at night wondering about the condition of what they believe are letters, diaries, photographs and perhaps unpublished works of  Kafka [,] one of the best-known authors of the 20th century.
But the question is — who should receive these works that the author wanted destroyed? (There is also an ongoing project at San Diego State University to find other non-destroyed papers of Kafka, called the Dora Diamant collection). There are definite views on who should have these works with larger cultural resonance:
The question preoccupying Israeli scholars is not only whether or when [the Kafka papers will be sold or donated] sharing [them] with the world. It is also whether a way can be found to keep the trove in Israel, which many here consider its rightful home, as the stronghold of Jewish national and historic heritage.
… The national library in Jerusalem contained papers of such major Jewish personalities as Einstein and Martin Buber, and so [some consider it to be] a natural home for Kafka’s as well.
…To many, Kafka’s novels and stories of existential despair written in German seem more consciously worldly than linked to any nationalist movement. The claims on Kafka by German or other archives seem to them just as strong. [A additional complication is] papers as precious as those belonging to Kafka  may not be legally taken out of Israel without the national archives having a chance to register and make copies of them.
So here we have a controversy about items that would not exist but for ignoring the express wishes of their creator! I’ve previously discussed the copyright-ignoring efforts of the National Yiddish Book Center to save Yiddish books that would have been lost and Found Magazine collecting the ephemera of life.
But keeping items around for their potential cultural significance as Kafka’s executor, Max Brod, did takes defying copyright in most cases and occasionally other legal rights. However, once things obtain larger cultural significance, owners and creators often turn to collectors and fans as the means to reassemble their intellectual property — leaving fans in the awkward position of deciding between following the law and keeping the object of their affection or fandom “alive.”
For example, when Metallica’s bassist Cliff Burton died in a tragic bus crash, the band turned to the bootleg videos created by their fans to put together the tribute video, Cliff ‘Em All. Considering the state of technology available during the concerts covered from 1983 through 1986, these were very dedicated fans who made and kept these recordings. While I do not know the actual contract provisions, if any, to hand these recordings to Metallica, it is highly likely that these fans were interested mostly in helping other fans to fully appreciate Cliff. The VHS box cover of the original release states (with minor edits):
First of all this is not your typical  home video (it’s worse) done with high-tech 10-camera production and sound. It’s a compilation of booting footage shot by sneaky Metallif[ans]…But most important, it’s really a look back at the 3 1/2 years that Cliff was with us  that we feel capture his unique personality and style.
But for these fans, this footage — imbued with a larger significance once Cliff died — would not exist.
As another example of the shifting importance of culture, take the one of most coveted aspect of early television fan culture — the lost episodes of Doctor Who. In the days before Tivo and VHS, these episodes were broadcast and then often destroyed. According to the BBC, who produces Doctor Who:
generally only a handful of copies were created and these were passed around from country to country. And the contracts between the BBC and the foreign stations required them to return the prints to the BBC after the rights to show them had expired or to certify their destruction.
So while in the past, the owners either destroyed (or required) destruction of their intellectual property, those that defied these strictures are now being praised. And these fans also serve as yet another opportunity to monetize something that would not exist but for the fan community.
Doctor Who was relatively lucky in that it still has a dedicated, semi-organised fan following that actively seeks out lost material. Although more than a hundred episodes are still missing, every Doctor Who episode at least exists in audio form thanks to the efforts of a couple of fans who made contemporary recordings. … at this late date, it has to be accepted that some [missing episodes] may have gone forever. Of course, what we really need is a time machine – then it would just be a matter of quickly popping back and grabbing them!
Considering we don’t have a time-machine that can show up and help us to go back in time to help save culturally significant items (unless we want to reach to the outer levels of theoretical), what should we do? Libraries and museums have taken a role in collecting and retaining materials for historical purposes, but their efforts do not usually relate to retaining subcultural information.
So what about fair use? The Center for Social Media’s Code of Best Practices in Fair Use for Online Video (16 page PDF Report), considers cultural memory to be significant enough to be considered when determining the boundaries of fair use:
FOUR: Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
Issues of ownership, privacy, and intellectual property will remain complicated, but even considering cultural memory is at least a step in the direction of not forgetting our collective past.