As an important first step in its mission to develop programs that examine arts policy as it functions in the United States, the Curb Center for Art, Enterprise, and Public Policy at Vanderbilt hosted its first spring conference on March 19, 2004, on the Vanderbilt campus in Nashville. 

“Federal Regulation and the Cultural Landscape,” made possible by support from the Rockefeller Foundation, brought together scholars, arts industry leaders, and federal agency and congressional staffers to discuss the critical effects of federal rulings, regulations, and legislation on the cultural landscape of the United States. 

“I’m delighted that the Curb Center’s first conference addresses federal regulation and culture, because it really goes to what the heart of what our center is about,” Curb Center Director Bill Ivey said in his opening remarks.  “We’re interested in the regulations, laws, and business practices that nurture or constrain creative work and that facilitate or restrict the availability of art and access to cultural heritage.”

During the day-long conference, Vanderbilt University professors Beverly Moran, Kenneth Paulson, Christopher Yoo, and Steven Hetcher presented papers examining the role of the Office of the United States Trade Representative, congressional hearings, the Federal Communications Commission, and the U.S. Copyright Office in setting cultural policy in the United States.  Each paper was critiqued by a panel of industry leaders, federal agency and congressional staff, and scholars from across the country. After panel discussions, the sessions were opened for exchange with audience members, which included artists, academics, students, and community members.

PANEL SUMMARIES

“The Office of the United States Trade Representative and Popular Media in Australia, Canada, and India,” Beverly Moran, Vanderbilt Law School

Respondents:

• Carol Balassa, Director, Services Trade Negotiations -- Media, Communications, and Energy Policy, Office of the United States Trade Representative
• Tim Reif, Minority Counsel for the House Ways and Means Committee  

“I’m particularly pleased to be a part of this project because it deals with both the stated public policies about the arts and the unstated policies that come from other government functions such as general regulation, trade, and the emphasis on hidden or unconscious public policy,” said Professor Moran.

Professor Moran focused on the global impact of the American movie industry and how other nations often react against efforts by the office of the U.S.T.R. to export to them increasingly large numbers of cultural products.   She stressed that the American film industry dominates 85 percent of screen time in the world.  She asked what responsibility Americans have to shape and define this issue considering that films are imbedded with both positive and negative images of our culture and mold the predominate world view of Americans.   

“The great historical paradox of culture is that its principal exporter, the United States, claims to be free of any policy on the matter,” Professor Moran noted in her presentation.  “We as Americans do not recognize that we have a culture.  Because of that I think that we do not understand threats to culture that other countries feel.”  She added, “It is not simply rhetoric when other countries express a fear that the U.S. film industry has a potential to destroy local film industries.”

Professor Moran explained that this is not an economic or trade issue, but a cultural issue and a problem that is much larger than the U.S.T.R. 

Carol Balassa of the Office of the United States Trade Representative discussed a related challenge.  “It’s not only the preponderance of American culture which creates resentment, but also the flip side, which is the perceived difficulty on the part of foreign artists in penetrating the United States market,”  she said.  “The other side of the question needs to be asked, which is:  what is the ability of foreigners to make themselves known in the American market?  When people look in the mirror in the morning or turn on the television set, they want to see themselves.   And they also want to make their voice heard in other countries.”     

            “Regulation through Intimidation: Congressional Hearings and Political Pressure on America’s Entertainment Media,” Kenneth Paulson, Executive Director of the First Amendment Center

            Respondents:

§         Lee Carosi, Republican Counsel, Senate Commerce, Science, and Transportation Committee

§         Danny Goldberg, Chairman and CEO, Artemis Records

§         Keisha Hoerrner, Assistant Professor of Media Studies at Kennesaw State University

Kenneth Paulson examined the role of congressional hearings in setting cultural policy.  “We’re seeing a heating up of interest in regulating television,” Mr. Paulson said. “For more than a century, government officials have sought ways to curb or regulate the content of entertainment media and, more often than not, justify it because of concerns for young people.  Government hearings on media content are almost always primarily political and coercive exercises—not fact-finding tools.”

Mr. Paulson cited examples of how Congress shaped the content of films, comic books, popular music, and television historically.  “Over the past century, Congress and other government bodies have used hearings, the threat of legislation, and the political process to accomplish what government is unable to do directly:  suppress or discourage unpopular or unpalatable speech,” Paulson said.  Government intimidation can lead many industries to self-regulation and the adoption of codes and ratings systems.

“I think it’s important to recognize, as Mr. Paulson says, that there always seem to be unintended consequences to this kind of pressure, and I would say unintended moral  consequences,” said panelist Danny Goldberg, CEO and Chairman of Artemis Records. “These hearings and all of the conversations that have been described are always framed in terms of the morality of the country.  And I think it’s reasonable to ask if any of these hearings, any of this legislation, any other pressure, successful or unsuccessful, has ever added to the morality of the country.”

Lee Carosi, Republican Counsel for the Senate Commerce, Science, and Transportation Committee, indicated that much of the discussion of policy on Capitol Hill concerns trying to understand the changing environment of broadcast and cable television, for example, and its effect on a younger demographic.  “If you are 25 years old or younger today, you don’t know the difference between broadcast television and cable,” she said.  “You have no idea.  You don’t know that if you switch from a certain channel to another channel that they have absolutely different standards applied to them.”

Paulson stressed that congressional hearings that address what America—particularly young America—sees, hears, and reads will continue to shape the nation’s cultural landscape. 

            “Architectural Censorship and the FCC,” Christoper Yoo, Vanderbilt Law School

            Repondents:

• Edwin Baker, Nicholas F. Gallichio Professor of Law, University of Pennsylvania Law School
• Stuart Benjamin, Professor of Law, Duke University School of Law
• Jonathan Levy, Deputy Chief Economist, Federal Communications Commission
• Robert Pepper, Chief, Policy Development, Federal Communications Commission

Professor Christopher Yoo used economic concepts to discuss the regulatory impact of the FCC.  “I think we’re still waiting for a more comprehensive analysis of FCC regulations, looking at multiple aspects of the structures to see how they interact and how they affect the content environment,” he said.  “That’s what I’m trying to accomplish.”

Professor Yoo described how the regulatory architecture imposed by Congress and the Federal Communications Commission has had the unintended consequence of affecting media content.  “What has been flying under the radar is what has often been called structural regulation—these are regulations that are not attempting to affect content directly, but are trying to pursue some economic value,” he said.  “I’m claiming that structural regulation is a kind of architectural censorship, that in fact it changes the quality, the quantity, and the diversity of the kinds of speech we receive.”

Professor Yoo cited the example of the FCC decision in June of 2003 to substantially relax many of its media ownership rules.  The proliferation of broadcast channels and the Internet made this decision not whether to loosen media ownership restrictions, but rather by how much.  In making this decision, however, Professor Yoo says that regulators focused primarily on economic concerns, not fully evaluating the ways that changing the structure would affect content.

“His emphasis on what I’ve always called structural issues, something I’ve argued that’s the most important matter in terms of the mass media… is absolutely essential,”  panelist Edwin Baker, Professor of Law at the University of Pennsylvania Law School, said.

Panelists discussed the role of structural regulation, the positive and negative effects of media concentration and homogenization, and broadcast television’s reliance on advertising support.

            “Piracy Norm Entrepreneurs Battle File-Sharing Norm Entrepreneurs: A New Front in the Copyright Wars,” Steven Hetcher, Vanderbilt Law School

            Repondents:

• Ann Bartow, Assistant Professor of Law at the University of South Carolina Law School
• Alec French, Minority Counsel, Courts, the Internet and Intellectual Property Subcommittee of the House Judiciary Committee
• Mitch Glazier, Senior Vice President for Government Relations and Legislative Counsel, Recording Industry Association of America
• Fred von Lohmann, Senior Intellectual Property Attorney, Electronic Frontier Foundation

The debate over the file-sharing of music and the role of the U.S. Copyright Office was discussed by Professor Steven Hetcher, who approached his analysis from the innovative perspective of social norms theory.  “In my view, the copyright industries—which are a broad phrase for movie, music, and books— have a social norms problem.  ‘File-sharing is permissible’ is the broad, dominant norm that is holding in the U.S…The puzzle is how did norms get to be this way and can they be changed?”

“The traditional way of looking at political organizations is from the top-down.  We create a set of laws and that causes people to move in certain directions,” Professor Hetcher explained.  “Social norms approach says that instead, we have to look at bottom-up causal forces.  The resulting political order in our case, cultural policy, is an influence of both top-down and bottom-up social influences.”

Professor Hetcher gave examples of commonly cited rationales used to justify file-sharing music, which ranged from not equating file-sharing with theft to the simplicity of technology being ready and available for such use.  He presented two dominant groups battling against each other:  piracy norm entrepreneurs, who want to moralize the issue and educate people about the harm it causes, and the file-sharing norm entrepreneurs, who view it as an acceptable social practice. 

Panelist Alec French felt that the issue has become oversimplified. “I would also note that besides songwriters, everyone else who is a copyright owner is ignored too—whether they are photographers, graphic designers, needlepoint designers, software engineers—none of them are mentioned in this debate,” French said.  “It’s the RIAA [the Recording Industry Association of America], because that’s the boogeyman, versus technology users.”

Mitch Glazier of the RIAA said, “What I found so fascinating about this paper was that it helped me put into context some of the strategies that I’ve helped to develop and that I’ve observed as we’re going through this transition in the record business.”  

The Center’s inaugural conference, “Federal Regulation and the Cultural Landscape,” encapsulated the mission of the Curb Center—to bring together key actors in the cultural policy system to discuss the decentralized, complex ways in which cultural policy is made in the United States.  As the first university-based cultural policy center to fully engage corporate executives, arts patrons, and regulators in their capacity as cultural policy actors, the Curb Center is generating curiosity, participation, and support from accomplished leaders in industry and government. 

Proceedings from the conference will be published in the coming months.  For more information about the conference or the Curb Center, please contact curbcenter@vanderbilt.edu.