Securing Our Rights to Public Knowledge, Creativity, and Freedom of Expression

January 7, 2005. Hosted by the Ford Foundation and organized by Grantmakers in Film and Electronic Media's (www.gfem.org) Working Group on Electronic Media Policy. Co-sponsored with Grantmakers in the Arts, the Funders Network on Trade and Globalization (www.fntg.org), and the New York Regional Association of Grantmakers (www.nyrag.org).

Imagine a society in which almost all of the images of its history are controlled by two corporations that charge use fees beyond the reach of its citizens. Further imagine that in this same society indigenous peoples are struggling to protect their forms of expression, and even their genetic material, from appropriation. Yet against this grim backdrop dynamic cross-cultural dialogues are occurring, music is being sampled and distributed illegally among people from many different countries, and artists persist in working this way in the face of chilling legal threats. While this may sound like the overwrought and faulty premise of a mediocre fantasy novel, these situations were but three of the many dilemmas discussed during this dense and fascinating briefing.

In her welcoming remarks, Alison Bernstein, vice president of the Knowledge, Creativity and Freedom Program at the Ford Foundation, set the stage for discussing the tensions inherent in the debate on intellectual property and asked the question, “Whose rights need to be protected?” In one compelling example, Bernstein cited an effort being supported by the Ford Foundation to investigate the cost of clearing the lapsed rights to the many images used in Henry Hampton's seminal documentary of the civil rights movement, Eyes on the Prize. Until these rights can be cleared, an effort estimated to cost at least $500,000, the film cannot be re-broadcast and new generations will miss exposure to this comprehensive, powerful documentation of a critical historical movement.

The framers of the U.S. Constitution intended to create a balance between the right of the maker or inventor to be rewarded for their work and the public's right of access to knowledge. While originators of content must be compensated in order to encourage innovation, the public domain must also be protected in order for the next generation of makers or inventors to build upon what has gone before. Access to knowledge is a key ingredient in creating new knowledge. It is unlikely that the framers' intent would support the expansion of copyright from the original fourteen years, plus a fourteen-year extension granted by the first copyright law in 1789, to the current seventy years beyond the life of an author and ninety-five years in the case of a corporation.

Margaret Wilkerson, director, Media Arts and Culture at the Ford Foundation, cited her appreciation of the growing concern among colleagues in philanthropy about the constrictive copyright environment evidenced by the large turnout for the briefing. She pointed out that these policies are not on the “radar screen” of many foundations even though they involve powerful government and corporate interests and affect the nonprofit sector and the constituents of many foundations, including artists, journalists, scholars, and scientists. She acknowledged Becky Lentz, program officer of Media Arts and Culture at the Ford Foundation, for making intellectual property rights a central part of the media policy portfolio and for convening a diverse gathering of funders.

Bill Ivey, director of the Curb Center for Art, Enterprise and Public Policy at Vanderbilt University and former chairman of the NEA, underscored the complexities of the intellectual property debate in his keynote address, “What's at Stake?” He began his remarks with the comment, “We are simultaneously exploiters and the exploited. We are always operating in shades of grey.” He went on to say that the “arts and culture system is tilting away from the public interest” and that “traditional interventions no longer work...fifty-year-old formulas need to be changed to nurture creative expression and media.” He spoke of his own frustration at not being able to clear the rights to use recordings by Loretta Lynn and Elvis Presley in a comprehensive history of U.S. folk and popular music. He said the resulting series published by New World Records portrays this musical heritage through the “gap-toothed grin of intellectual property law.”

One of Ivey's recommendations for creating a more coherent cultural policy sparked some lively comments during the discussion period about whether a more integrated cultural policy would serve the public interest in the long run, as a centralized policy would make it more difficult for advocates of unpopular work. Perhaps most important for GIA members, Ivey made a compelling case for the intertwined nature of media policy and cultural policy, building on several of the themes in his keynote address at the GIA conference in Cleveland last fall. (See “Toward a Twenty-first Century Arts Agenda.”)

The remainder of the day was divided into two panels, separated by lunch, during which many participants engaged in lively conversations about the ramifications of current copyright policy. The morning panel, Case Studies in the Chilling Effects of Copyright Crackdown, was moderated by Laurie Racine of the Center for Public Domain and explored the impact of constrictive copyright law on creative practice and scholarly research. We heard from Jeffrey Tuchman, documentary producer and director, and founder of Documania Films; Rick Karr, host and writer of Technopop: How Technology Makes and Unmakes Popular Music, NPR cultural correspondent, and PBS contributor; Joseph Turow, University of Pennsylvania's Annenberg School for Communication and convener of “Knowledge Held Hostage? Scholarly versus Corporate Rights in the Digital Age;” and Carrie McLaren, editor, StayFree Magazine and curator of the exhibition Illegal Art: Freedom of Expression in the Corporate Age.

The second panel—Strategies to Reclaim the Public Domain: Media Policy Advocates at Work—was moderated by David Bollier, independent scholar and author of Silent Theft: The Private Plunder of Our Common Wealth and the forthcoming Brand Name Bullies and their Quest to Own and Control Culture. The participants included Gigi Sohn of Public Knowledge, Shari Steele of the Electronic Frontier Foundation, John Russonello at Belden, Russonello & Stewart, James Love of Consumer Project on Technology, and Christophe Aguiton, researcher and developer for French Telecom and co-founder of Babels and Nomad. The panelists discussed recent research on how to best educate the public about this complex issue and presented examples of innovative strategies for intervening in the legal, legislative and regulatory arenas both within the United Sates and at the global governance level.

Both panels ended with extensive question and answer periods that touched on topics such as the need to adequately compensate artists for their work; the way in which corporations have used their power to appropriate income streams (i.e., Microsoft and Time Warner own virtually all film and photography archives); innovations in the academic arena, such as MIT's open course model; and the usefulness of looking to other fields for possible public/private remedies, such as the environmental movement's use of easements, or exploring the notion of “cultural impact studies” through which we might apply to culture, the rigor and principles of environmental impact studies. The point was made that concern about intellectual property policies crosses party lines and encompasses many disciplines and unlikely allies.

At the end of the briefing, Becky Lentz and David Haas (chair of GFEM) convened grantmakers for a private discussion on how philanthropy might play a role and possibly coordinate efforts to protect the public domain. This discussion ranged from specific proposals to questions about the limiting nature of the language used to describe “intellectual property rights” and the importance of communications based on values.

This briefing conveyed substantial new knowledge and stimulated discussions that will continue in the future among many of the eighty people who attended. For those who could not attend, extensive documentation will be posted on GFEM's web site (www.gfem.org) by late spring. In the meantime, interested grantmakers may contact Sarah Armour-Jones at saj@gfem.org to obtain copies of the briefing booklet, which contains approximately a dozen articles with background information on the debates surrounding intellectual property rights. This was the first of three funder briefings being planned by GFEM's Working Group on Electronic Media Policy and held at the Ford Foundation. The two subsequent sessions are “The Role of Grassroots Organizing in Challenging Media Consolidation” and “The Future of the Public Airwaves.”