Does the nation’s culture need federal protection?
In 2000, two years before he died, the legendary television comic Milton Berle sued NBC for losing track of 130 film reels of his early shows. A few years later, the Supreme Court upheld the Sonny Bono Copyright Act, extending copyright terms to 70 years past the death of the author, or 95 years from the date of first publication. And in the last decade and a half, the ownership of the nation’s commercial radio stations has become more concentrated, with the number of owners decreasing by 40 percent even as the number of total stations has grown.
These may seem like unrelated developments. But to Bill Ivey, they’re part of the same story: American culture is being taken over by powerful private forces and, as a result, fenced off from public use.
Ivey served as chair of the National Endowment for the Arts under President Clinton, and he has thought as hard as anyone about how to protect and nourish American arts and culture. When he looks across the American cultural landscape, he sees a series of turf battles that pit private interests — often huge wealthy entertainment conglomerates — against a ragtag assembly of advocates representing particular interest groups. Nobody, in all this, represents the interests of the “culture” itself — the vast, evolving collection of artworks, scripts, recordings, and texts that Americans are constantly creating and consuming in some way, or simply take patriotic pride in being aware of.
To remedy this state of affairs, Ivey has an ambitious proposition: create what he calls a “cultural EPA.” His vision is not a European-style culture ministry, but a federal agency that would make sure no one gained too much control over the nation’s cultural assets: Just as the Environmental Protection Agency was created to regulate any activity that exploited the nation’s environmental resources, so would a cultural EPA regulate activities that affect the nation’s cultural riches. Rather than relying on a disparate band of artists, First Amendment campaigners, local-radio enthusiasts, music historians, archivists, and the like, the nation’s cultural life would have a defender with the weight of the executive branch behind it, and the power to discipline and compel corporate behavior: to hold up mergers that threatened to concentrate too many cultural resources in one company’s hands, to weigh in on international trade deals and to reshape the way copyrights are awarded, and to regulate the airwaves with an eye on a broader sense of cultural vitality rather than chasing down foul language and the occasional bared breast.
And a cultural EPA, Ivey argues, would be almost as important for the symbol it provided as for the particular duties it carried out. The creation of the Environmental Protection Agency, he points out, helped solidify in the public mind the idea that a set of diverse concerns about resource extraction and dams and woodlands were actually part of a single larger issue that people began to call, simply, the environment. The creation of a cultural EPA, Ivey believes, would similarly unite seemingly disjointed issues and encourage the public to think in a cohesive way about the health, preservation, and accessibility of the nation’s cultural treasures.
“It’s not just that we should care about the Internet, or about copyright, or about radio. We should care about the entire system in which art and information gets created, distributed, consumed, and preserved and how that entire system does and does not enhance the character of our democracy,” Ivey says. “Right now that’s getting sort of piecemealed to death.”
Critics of Ivey’s proposal see it as impractical, or as a needless politicization of art in a nation that has always managed to nurture the arts and culture through private means. Ivey and other enthusiasts for the idea, however, respond that the government, whether it wants to be or not, is already deeply involved in shaping the nation’s cultural life, whether by the conditions it attaches to the ownership of the airwaves or participation in litigation like the ongoing lawsuit over Google Books or in setting the terms of copyrights and patents. The government is already setting cultural policy, in other words, it’s just doing it incoherently.
Fifty years ago, there were people who cared about the environment, they just didn’t know it yet. Though not as numerous as they are today, there were campaigners against strip mining and big dams, activists for rare animals and old-growth forests, defenders of clean rivers and clean air. But the notion that all of these causes added up to “the environment” — something that was both an ecological model and a political shorthand — had yet to reach mainstream thinking.
Traditional histories of the environmental movement credit the publication of Rachel Carson’s book “Silent Spring,” the Mideast Oil Crisis, and the burning of the Cuyahoga River with shifting public consciousness. Ivey adds another: the creation of the Environmental Protection Agency, a federal agency powerful enough to regulate the biggest energy and manufacturing companies and prominent enough to serve as the national locus of popular concern.
“If you go back to 1962, 1963, all you had was a smattering of passionate individuals who cared about clean air or wetlands preservation,” he says. “And over a period of time these disparate issues were bundled into a single theme around the environment, and were first memorialized legislatively in 1969 in the National Environmental Policy Act,” the legislation that was to lead to the creation of the EPA the next year.
Ivey invokes the creation of the EPA in part to emphasize what he doesn’t want an American department of cultural affairs to look like: Europe’s ministries of culture, organizations dedicated to defining and protecting an often monolithic idea of French or German or Italian culture. Among the responsibilities of France’s culture ministry, for example, is to guard the French language against the encroachment of English words like “e-mail” and “chat” by issuing rules governing proper language usage in official government documents, advertisements, and contracts.
“The last thing you would want in a cultural ministry is to say ‘This is authentic American culture, this is what you have to do,’ ” Ivey says.
Indeed, the problem he wants to fight is that American culture has become too dominated by a few private actors whose ownership of large swaths of the cultural landscape means that they can dictate the terms under which everyone else uses it. High school music teachers who want to teach Gershwin, writers and filmmakers who want to put iconic fictional characters like Mickey Mouse and Holden Caulfield into their work, painters who want to portray famous athletes — all have to ask permission first. If it’s granted, they then pay a fee or accept conditions on how the material is used.
That constraint matters to artists and writers and music teachers, of course, but Ivey and others argue that it also matters to the larger society in which they live, limiting everyone’s freedom to exercise their imaginations, with all the innovation and understanding that comes with that.
“If what you get is a culture that’s entirely packaged based on a business model whose bottom line is to sell you another round of Terminator movies, you’re less likely to have in your community the people who have taken on the task of imagining the world we live in and imagining the world we could live in,” says Lewis Hyde, a poet and essayist and a fellow at Harvard Law School’s Berkman Center for Internet and Society who is a leading thinker on art and ownership.
At a practical level, Ivey’s cultural EPA, like the original EPA, would be built from parts plucked from other federal agencies. The reorganization that created the EPA took pieces from the Food and Drug Administration and the Department of the Interior, the Department of Agriculture, the Atomic Energy Commission, and what was then called the Department of Health, Education and Welfare.
Ivey’s proposed department of cultural affairs would, for example, take the Copyright Office — which not only registers copyrights but provides expert assistance to Congress on intellectual property issues — out of the Library of Congress and fold it into the new agency. This would do nothing to change the terms of copyright, which are set in Congress, but it would give the office an independence from congressional pressure in the research it does on the ramifications of copyright law, much as EPA research is today seen as generally apolitical.
He also proposes that the duties of the Federal Communications Commission that pertain to media ownership also migrate to the new agency, where officials overseeing media companies would find themselves working alongside officials from agencies like the Smithsonian Institution, the National Endowment for the Arts, and the National Endowment for the Humanities, agencies whose grant-giving work creates a fine-grained sense of the needs and particularities of communities across the country. That proximity, Ivey suggests, would give media regulators a greater appreciation for the myriad effects that media ownership can have on small communities. Ivey predicts that such a reorganization would translate into a greater level of protection for small local radio stations, for example, because of the role they play in sustaining community life and communicating local news.
Ivey would like to see the department of cultural affairs weigh in on mergers beyond the broadcast media. He points out that Sony owns both RCA and Columbia Records, which between them have a significant portion of the nation’s earliest music recordings in their vaults. That worries him.
“When you have that much cultural heritage controlled by a single company, when there’s been no talk about preservation or access in the run-up to the deal, what has it really done to that chunk of America’s cultural heritage?” he asks.
One role of the new agency could be to demand cultural impact statements of companies before major deals are approved, documents providing with assurances about how certain cultural treasures like Sony’s collection of early recordings would be protected, and who would have access to it.
Suggestions like these seem deeply intrusive by today’s intellectual property standards. And the United States as a country has long been deeply skeptical about governmental involvement in cultural affairs — partly out of a generalized suspicion of government overreach, partly because the sort of monolithic, officially sanctioned culture that European-style culture ministries protect seems out of place in the United States, with its proud pluralistic traditions. Ivey’s proposal is a political long shot, to say the least.
“I don’t think the United States would ever get in the position of regulating culture or opening up cultural industries in the way other countries do,” says Richard Kurin, Under Secretary for History, Art, and Culture at the Smithsonian Institution.
Skeptics of Ivey’s vision make a different point, as well: Even were it feasible, his proposal misunderstands the sort of power that government can exert in realms like culture — or, for that matter, the environment. The issues that Ivey would have the cultural EPA deal with are, ultimately, political ones, not administrative ones. Changing the current copyright regime is something Congress has to do, and it won’t do so without enormous public pressure.
“The EPA reflected a very general outcry from the public for an environmental movement, which was really quite strong even before there was an EPA,” says Tyler Cowen, an economist at George Mason University who has written widely on cultural politics and economics. “Is there anything like that for the arts in America today? I don’t see it.”
It may be that the outcry is lacking because people don’t think about the arts, but it may be that when they do think about them, they see a robust cultural landscape rather than a threatened one. Kurin, for one, takes the view that American arts don’t need the sort of cosseting that a department of cultural affairs promises.
“I’m not sure I would look at culture in that way, that we need to protect culture,” he says. “We’re not going to auction off the Declaration of Independence, or put Lincoln’s hat in a second-hand store, but the United States has always had a culture that’s been growing and accreting and changing, you don’t want to protect it by sealing it off in a vault.”
But Lewis Hyde, who likes much in Ivey’s proposal, disagrees with the idea that the United States has simply stood back and let its artists and writers and musicians do what they will. Increasingly, he points out, the government is shaping the culture, and in a heavy-handed way. The repeated extension of copyright terms far beyond what the Founding Fathers envisioned, the deregulation of radio — these are government actions that fundamentally limited who had access to certain cultural properties and the tools to distribute them.
“Skeptical as we may be about government involvement in culture, it already is involved,” he says.
And even if an entire new federal agency remains unlikely, Ivey hopes that discussing it will at least spur a deeper, more focused engagement in a realm that has long been seen in this country as beneath the consideration of serious policy thinkers.
“The way we approach a wide range of issues that affect the character of our expressive life is incoherent and disconnected,” he says. “And market forces have taken full advantage of it — things like media ownership, intellectual property generally, the shrinkage of fair use, the expansion of the footprint of copyright, a whole range of market-driven technology innovations that have really created for Americans a very high-priced permissions system that stands between citizens and personal creativity and artistic heritage.”
Drake Bennett is the staff writer for Ideas.