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Q&A: Sunil Iyengar

Director of the Office of Research and Analysis, National Endowment for the Arts

What’s the piece of news this week that is forefront on your mind when you think about technology, policy, and the arts?

I haven’t been following this as closely as I would like, but there is of course the Google Books verdict.  The whole idea that gets to the heart of Google decision: balancing the really exciting and delicious opportunities for getting more access to art online with the need for artist rights – in this case authors rights.  It has been interesting to read the arguments.

Why do you think this issue is relevant to the arts community?

I think there is a lot of discussion within the arts community about things like how intellectual property law needs modernization – or is it in fact where it should be? – in the face of the many more expansive opportunities to engage with art and also create art because of technology.

One of the places where the more expansive opportunities to engage with art comes up most frequently in our own work is the Survey of Public Participation in the Arts.  We survey for example about many types of performance, how people participate in performances, or even create art.  But what about things like mixing or remixing?  Or what people in the arts sector call the curatorial aspects of the arts?  Remixing may not be viewed by some as curatorial, some might view it as straight up creation or performance.

What are some exciting things happening in the nonprofit arts sector with respect to technology, policy or research?

On Friday the National Council on the Arts meeting had some really interesting presentations.  One of them was from the New World Symphony, who showed us some amazing things they had done with wall screens.  For me, this presentation really raised questions about the traditional infrastructure needed for arts organizations or for arts venues.  You know the idea that you have this portable aspect that can occur anywhere.  In one sense it could be venue neutral because you have a technology that enables presentation of art in a variety of different kinds of settings.  And that’s really interesting and it changes the way we think about where art is consumed or enjoyed, and how to facilitate that.  And of course there is a cost issue with that too.  Does that mean ultimately these organizations are going to have more costs and will need more infrastructure to do these kinds of things?  Or can these types of innovations happen relatively cheaply through more inexpensive media platforms?

Why is this exciting to you?

You’re just seeing much more of an understanding across the field. I’m glad that the NEA in a small way has been able to contribute to that understanding through the research we’ve done showing a strong connection between people who participate in the arts through, say, more traditional forms and through media.  You know this from our report Audience 2.0: How Technology Influences Arts Participation.  This study found that when we controlled for other factors, people who used digital media to engage with the arts or electronic media to engage with the arts are 2-3 times as likely as non-arts-media users to actually go to live events and to create art of their own.

I think there is a symbiosis here.  It might be bold to say symbiosis.  We can’t show any cause/effect relationship but certainly people are starting to understand the same values that drive people to go on the computer and look up art or engage with the art through electronic media are really what’s ruling demand for arts in other settings and other experiences.  For example the whole idea of interactivity.  That people are engaged in a way they can respond back in a way to the artwork or comment on it.  They can do their own mixing as we just talked about.  Their own curating.  That freedom, the choice that is reflected in these kinds of values is exactly what in many ways more traditional live arts more traditional live events are trying to emulate.

Fairs and festivals are a good example.  These have been going on for many years.  Performing arts festivals for example or visual arts fairs or festivals basically realize that part of the reason people go to these things is because they have that interactive element that you don’t necessarily get at some kinds of arts events.  At a fair or festival there is a freedom to choose the kinds of events you see.  You have options.  It’s kind of a smorgasbord of arts events in one place.  And there is freedom of movement.  All of these things that in other context you can think of as purely internet-related are virtues you see people programming in many kinds of more traditional arts experiences.

What do you see as a major challenge for the arts sector with respect to technology and copyright policy?

That’s an issue we certainly want to look at further.  Our office hasn’t focused on it very closely the last few years.  We are like a lot of people in the nation, who are still catching up with the technology and understanding what is permissible, what isn’t permissible and how do we ensure that the contributions of artists is recognized appropriately.

What do you think needs to happen to overcome the challenge?

A lot of it has to do with people’s ability to focus on an issue for a long period of time and having the resources to give it its due weight.  But clearly this is an area that has so many cross-cutting interests.  Getting people to talk about these issues and with a wide range of interests at the table – building a broad coalition – is probably what is needed to make a difference in this area.

Do you have a latest toy that you’re playing with that you’d like to comment on?

I recently got an e-reader for my dad and he’s become overnight almost a much more voracious reader.  And he’s going back to his old syllabi, things that he was assigned to read in college – maybe for nostalgia or something – and he never got around to reading.  So he’s really enjoying all that and I’m really tickled by his enthusiasm.

Anything you are working on that you would like to share?

We’ve been looking at the way Americans spend their time on arts activities – whether it’s going to arts events or doing arts and crafts.  We’re starting to see some interesting things.  Analogous with consumer spending patterns we’re seeing how people are spending their time doing art in the course of a day even.

For me, one of the big unanswered and unexplored questions is this.  Lets say that one of the core attributes of art is that is provides a space to reflect, and creates a safe space for people to really engage with something in a sustained way.  How is that impacted by this immediacy of art through media, this emerging environment where people can instantly interact with art?

Just like how the 24-hour news cycle was started with CNN, there is a similar cycle in terms of appreciation and enjoyment of art that is becoming shorter and shorter.  How does that change the way we appreciate, respond to and understand art?  We now have the ability to access anything almost at the drop of a hat and juxtopose different artworks with other kinds of art works.  I wonder how the meditative quality of art will fare over the long term.

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A Fair Use Primer (links)

What is Fair Use? “under many conditions, fair use allows you to copy, display and publish copyrighted works without payment or permission. The doctrine — which complements the First Amendment — helps courts avoid rigid application of copyright law where rigid application would ‘stifle the very creativity which the law is designed to foster.’  Against this backdrop, fair use can be looked at as a balancing act.  It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. While invaluable to both the scholar and the pitchman, it should be noted that fair use is not a right but a defense to copyright infringement.   As such, it should be looked upon as a privilege, and not a right.”  (via Copylaw.com)

It’s not a right, but a defense to copyright infringement. “The difficulty in claiming fair use is that there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies–but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place.”  (via Stanford University Libraries)

How is Fair Use Determined? “Section 107 of the Copyright Act lists four factors to help you determine types of content usage that may be considered fair use. No one factor alone dictates whether a particular use is indeed fair use. Consideration of all four factors is needed to help determine whether or not copyright permission is required.  Fair use is not a straightforward concept; therefore, any fair use analysis must be conducted on a case-by-case basis considering all four factors and the circumstances of the situation at hand.  Before applying these factors to your situation, identify if the use is for criticism, comment, news reporting, education, scholarship or research. If the answer is no, obtain copyright permission to use the content.” (via The Campus Guide to Copyright Clearance)

What if neither the copyright holder nor the user can afford a lawyer?  Setting best practices might help. “poets communicated a general sense that their ability to do their work with confidence was often impeded by institutional regulations based on very straitened interpretations of copyright. They lacked clear guidance as to what material might be available in the public domain. Moreover, they were constrained by their own lack of certainty about what uses are and are not fair within the practices of poetry. While they certainly wish to appropriately control their own work, and to make money where money is to be made, poets also expressed a strong wish to affirm the importance of their ability to make reasonable unlicensed uses of copyrighted material and their support for such uses by others of their own works.” (via the Center for Social Media’s Code to Best Practices for Fair Use in Poetry)

 

The Google Books Decision (links)

The decision is in.  “Google Inc.’s six-year struggle to bring all the world’s books to the Internet suffered another big setback at the hands of a federal judge.  Judge Denny Chin, in a ruling filed in U.S. district court in Manhattan, rejected a 2008 settlement that Google forged with author and publisher groups to make millions of books available online. The 48-page decision concludes that the $125 million deal would give the Internet giant the ability to ‘exploit’ books without the permission of copyright owners.  ‘While the digitization of books and the creation of a universal digital library would benefit many,’ Judge Chin wrote, Google’s current pact would ‘simply go too far.’ The deal would ‘give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission,’ he said.  He also suggested a way to revise the deal: rather than let copyright owners of books ‘opt out’ of the settlement, copyright owners should be given the choice to ‘opt in.'” (via Wall Street Journal)

This deal would have created astonishing precedents. “The settlement is especially controversial because it uses class action law to affect the rights of a breathtakingly broad array of authors and publishers. In approving a class action settlement, a judge must determine if it fairly represents the interests of the affected parties—in this case, millions of copyright holders. And those copyright holders have not been shy about voicing their displeasure.  Most importantly, the proposed settlement was far more ambitious than the underlying legal dispute. ‘The case was about the use of an indexing and searching tool,’ Judge Chin wrote, ‘not the sale of complete copyrighted works.’ Yet the settlement gave Google broad latitude to open an online books store to sell copies of many of the books it has scanned.  And crucially, through the legal fiction of the class action mechanism, the settlement gives Google the right to sell copies of ‘orphan works’ whose copyright holders—by definition—cannot otherwise give their permission.” (via Ars Technica)

And not just for authors. “Unlike the privacy you normally experience online, Google’s current practices show it is capable of compiling ‘dossiers’ that reveal our lives in intimate detail. These dossiers may be shared across Google products or with partners, civil litigants, and law enforcement without clear standards for review. Other online bookstores raise similar concerns, but Google is the company seeking federal court approval of what may well become the world’s largest digital book repository — so it must lead the way in protecting online reader privacy and anonymity.” (via EFF)

It also highlights the need for a real ‘Orphan Works’ solution for everyone. “The effect of this was that the agreement essentially rewrote copyright law for Google and Google only. It would give Google the right to sell copies books it didn’t have the rights to—’orphan works’ that are still under copyright, but where the copyright owner can’t be found. Selling full-text copies of copyrighted works without permission is not a traditional fair use—and it’s not what Google was doing when it got sued, to begin with.  As for orphan works, Congress needs to act.  The law needs to be fixed to allow orphan works to be used in reasonable ways while respecting that they’re still under copyright.  It’s great that Google and the Guild thought creatively about how to pay any orphan works rights-holders who eventually came forward, but a situation where the orphan works problem is ‘solved’ by creating a monopoly digital library is untenable. If Google is able to exploit orphan works, then anyone else should be able to on the same terms.” (via Public Knowledge)

A Creative Commons Primer (in Links)

What is Creative Commons? by definition is a non-profit organization, but the name is more widely associated with the concept of Creative Commons as a way to extend copyright to promote legal sharing and modification of original works.” (via When I Have Time)

Why does it exist? “It used to be that copyright was something that the average person never used to have think about..because copyright only kicked in when you made a copy, and making a copy involves having some kind of big industrial piece of machinery…you know, you need a printing press to make a copy.  The rules were a little difficult to understand, but it didn’t matter because if you were going to spend a million dollars on a print shop, you could afford to spend a thousand dollars for a lawyer to tell you how to do it right. But now we can make copies a million times a day without even thinking. We copy like we breathe on the internet and every one of those copies is governed by copyright law and the digital response to the copyright law hasn’t been to make it simpler for us to understand, it’s been to make it harder and to make the penalties for getting it wrong even worse.  This has produced a really bad outcome, where 98% of the works in copyright don’t have any visible owner, no one knows who the license comes from, but the majority of internet users are essentially criminals because of how they use the internet.  Musicians and other kinds of artists are not getting paid and their fans are starting to feel like [musicians] greedy, terrible people – for having sued people who love their work and [therefore] don’t deserve to get paid, I mean it’s a mess for everybody!” (via When I Have Time)

Why is it good for bloggers? “Creative Commons can actually provide bloggers benefits that go well beyond the buttons and badges. In the uncertain copyright climate of the Web, having a firm lawyer-written license, regardless of what it says, can have huge benefits over the ambiguity that comes with not having one.” (via The Blog Herald)

Why do photographers hate Creative Commons? “Because it’s so confusing (or, to be more generous, ‘open to interpretation’), Creative Commons licensing spawns false confidence and innocent mistakes — giving sue-happy lawyers much to salivate over.”  (via Black Star Rising)  One response to Baradell’s post is here. (via Plagarism Today)

Why are composers wary? “Among the ‘copyright alternatives,’ Creative Commons have styled their licenses as being cool and easy to use. To submit a work to be governed under a CC license, creators click on symbols and icons for attribution, “share alike” or noncommercial uses, and then upload a digital copy of their work.  While the process appears simple, the meaning of these symbols can be misleading to a creator. Even if he or she takes the time to access what Creative Commons calls the ‘human readable’ terms and conditions of the license, will that creator fully understand its terms?” (via ASCAP)

Or maybe Creative Commons doesn’t fail? “it is not the case that CC asserts that ‘artists should give up all or some of their rights’ — if by that ASCAP means either that we believe giving up ‘all or some of their rights’ always benefits an author or artists, or that, benefit notwithstanding, an artist should sacrifice his or her rights for the common good. Neither is correct. We know that sometimes, freer access helps. We provide tools to make it easier for artists to enable freer access. We also believe that when making creative work freely available doesn’t hurt, and sometimes helps, the culture is benefited by choosing freedom rather than licensing lawyers. And finally, we believe that some forms of creative work — e.g., the work of scientists, or governments — should be freely available. But that normative claim is far from the work we do with the authors or artists that ASCAP deals with. Our business with respect to them is not to exhort them to charity. Artists and authors have it bad enough without a bunch of nerdy lawyer-types trying to pile on more guilt.” (via Lessig Blog)


Q&A: Helen Brunner

artist advocate, media policy connector, social justice champion, and Director of the Media Democracy Fund.

What’s the piece of news this week that is forefront on your mind when you think about technology, policy, and the arts?

It’s hard with what is going on internationally not to think about the situation in Egypt.  The notion that something like the Internet could be turned “off” so to speak is surprising to many people. It’s also fascinating to see how quickly local activists and the International human rights community worked together to find ways around the closed communications environment using the intersections of different technologies, such as the Google phone line for calling in and listening to tweets with #Egypt.

Why do you think this issue is relevant to the arts community?

Freedom of expression and access to information and knowledge are core necessities for artists. Art is also the realm where many differing or even warring parties can connect, and sometimes even negotiate across differences.

It’s critical for the arts community to understand how fragile and open to manipulation these technologies are.

What are some exciting things happening in the nonprofit arts sector with respect to technology and/or policy?

I’m inspired by artists who use technology in innovative ways to either make or distribute their work – and some who have learned how to earn a living from their work. Technology is just another tool, or form of pencil if you will. As new technologies develop, the work tends to become more complex and not just about the attributes of the particular technology.

Why are they exciting to you?

New forms create new ways to understand the world, and old forms being distributed more widely also creates a richer world to live in. The global connections among artists are exciting, and new networks or efforts seem to pop up every day. There will be new ways for organizations to exist – ones that may be more effective or at least expand the resources available for artists. Audiences and communities can participate more deeply and the lines between the maker and the viewer are blurring in increasingly exciting ways. The potential is extraordinary, although I would never suggest that technology is cure to all problems.

What do you see as a major challenge for the arts sector with respect to technology and copyright policy?

It’s a complex area and the rules are hard to understand. The laws are out of date and the approaches to revising them are becoming more draconian.

I am concerned that artists are not aware of or engaged as much as they need to be in the public policy side, in monitoring and trying to influence the behavior of companies that control the distribution platforms.

Now that convergence is actually here, people are beginning to experience the ubiquitous nature of digital communication. They have yet to understand the need to create rules of the road to protect their interests.  Situations like Egypt are a wake up call. Many people I’ve spoken with are absolutely stunned that the Internet could just be taken away.

While we have a long way to go in engaging the non profit arts sector as deeply as they need to be, I think they are becoming much more aware of the ways in which policy will affect their ability to make, distribute, document and earn a living from their work, through the work of organizations like NAMAC, Public Knowledge, and Future of Music Coalition.

Do you have a latest toy that you’re playing with that you’d like to comment on?

Kind of silly but I finally jail broke my iPhone so traveling internationally I can use a local SIM card. It’s a simple thing, but point to the draconian control that incumbent mobile carriers have in the US over basic phone communications.

Anything you are working on that you would like to share?

I am really excited about the work of the MDF grantees, and since there are 27 of them it is hard to go into too much detail. Would love to encourage folks to look at our grants list at www.mediademocracyfund.org and click on the links.  I’m also excited to go to Dakar tomorrow for the World Social Forum.  It’s a fantastic opportunity to reconnect with the global communications rights movement and see the arts and culture work being done there.

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