May 27, 2008

Legislative Update

House Authorizing Panel Hears NEA Chair

While Congress has no apparent plans to pass legislation this year to renew the authorizing statute for the National Endowment for the Arts (NEA)—whose funding authority technically expired in 1993—the House subcommittee with authorizing jurisdiction over the NEA and the National Endowment for the Humanities (NEH) on May 8 conducted an overview hearing on the “national impact” of the two endowments’ programs.

Rep. Carolyn McCarthy (D-NY), chair of the Education and Labor Subcommittee on Healthy Families and Communities, credited the leadership of the two endowments with leading their agencies forward out of the controversies of the late 1980’s and early 1990’s.

In her opening statement, McCarthy spoke of the impact of the arts and humanities on the lives of Americans and their “potential to improve communities across this nation….Research shows,” she said, “that experiences with the arts and humanities improve students’ creative problem-solving and innovative thinking skills and can strengthen the mental agility in our older population.” Inviting the heads of the two endowments to testify, McCarthy observed, “There is no way we could possibly explore all of the remarkable programs that both of these agencies are engaged in during the course of this hearing.”

Dana Gioia, the NEA chair, told the legislators of an endowment “full of renewed energy” which had been “weakened” by controversies, its “credibility compromised”, “relations with Congress troubled”, and “strategies uncertain and defensive.” He credited several of the national initiatives – Shakespeare in American Communities, Operation Homecoming, and Poetry Out Loud, among them – for the dramatic shift in the NEA’s fortunes and ability to serve the American people. He singled out the success of the Challenge America program as one of the endowment’s “central achievements” by addressing the “perceived elitism” of the NEA through the awarding of at least one grant “to a deserving arts organization in every Congressional district.”

In looking to the future of the arts endowment, Gioia identified “two major challenges”: “the diminished state of arts education in the nation’s schools” and the need for the United States “to expand its cultural exchanges with other nations.”

The NEH chair, Bruce Cole, also concentrated his testimony on his agency’s national programs, giving special attention to Picturing America, through which the NEH is distributing forty large-size reproductions of masterpieces of American painting, sculpture, photography, architecture and decorative arts to tens of thousands of schools and public libraries across the country as tools to help educators teach history, literature and other subjects. As with some of the national initiatives developed by the arts endowment, the humanities endowment’s program includes resource materials for teaching.

Other witnesses at the hearing included filmmaker Ken Burns, who described the support he received early in his career and continuing to the present from the NEA and NEH, and how the rigor and the discipline of the application process forced him to make his work better. William F. Glacken, mayor of Freeport, New York, who participated in the NEA’s Mayors’ Institute for City Design said the experience produced “a positive outcome” in the redesign of his town’s aging downtown corridor.

Capt. Ryan Kelly (Ret.), who worked through NEA’s Operation Homecoming following his service in the U.S. Army in Iraq, called the program “a truly historic initiative” which gave the assurance that “regardless of politics or feelings about the war, people back home cared about me, and about my soldiers.”

As a board member and former chair of the Pennsylvania Humanities Council, Jeanne Schmedlen, gave special praise to the work of the Pennsylvania Council on the Arts with its programs of arts education in underserved regions and the recent success of Poetry Out Loud in the state.

Senate Committee Okays Orphan Works Bill

On May 15, the Senate Judiciary Committee approved legislation, S. 2913, the Shawn Bentley Orphan Works Act of 2008, aimed at creating a process to allow for greater use in the public domain of orphan works — books, music, photos, movies or other visual material whose owners can not be found — after conducting a “diligent effort” to locate the owner of the copyright.

Proponents of the legislation, which include art museums and other exhibiting institutions, argue that millions of works are currently in existence under copyright protection but for which the copyright owner cannot be easily found. These works are essentially unavailable to publishers, filmmakers, collage artists and other creative professionals who would like to use the material and pay for the use, but do not because of the potential for penalties if the original copyright owner eventually emerges.

In fact, the Senate bill, introduced by Sen. Patrick Leahy (D-VT), exempts from the legislation’s requirements any nonprofit educational institution (such as a museum, library, archives, or a public broadcasting agency) if it can be shown that use of the orphan work was without any commercial purpose; the use was primarily educational, religious, or charitable in nature; and, after receiving a notice of claim of copyright infringement, the use of the orphan material stops.

Photographers and illustrators are among the groups which have opposed the orphan works reform legislation, arguing that potential users of their works would fail to conduct a sufficiently diligent search. As a result, works would essentially be stolen. The legislation charges the U.S. Copyright Office with identifying available databases that would facilitate a user’s search for pictorial, graphic, and sculptural works that might otherwise be identified as orphan works.

Similar legislation, H.R. 5889, The Orphan Works Act of 2008, has been introduced in the House of Representatives by Rep. Howard Berman (D-CA) and is pending consideration by the Judiciary Committee.