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Issues in Intangible Cultural Heritage

Bill Ivey

Heritage Preserved and Heritage Ignored

In the early 1960s, in what Billboard correspondent Bill Holland described as a “most spectacular case of wholesale vault trashing,” RCA Records demolished its Camden, New Jersey, warehouse by first dynamiting the building and its contents, then bulldozing the rubble into the Delaware River. Through this single action, the record company notched a rare triple crown of destruction: It blew away a historic structure, polluted a famous waterway, and blasted four floors of cultural heritage-vinyl and metal master disc recordings-into oblivion.

The scope of this multifaceted demolition remains startling even today, but I find a related point more relevant; less than a decade after RCA destroyed a portion of its heritage, the company’s insensitive trifecta would have been nearly impossible. No laws securing historic recordings had been passed, but, by the late 1960s, public policy had evolved a set of laws and regulations designed to protect both the warehouse and the river itself-historic structures and the natural environment.

Over the past four decades, movements concerned with the natural and built environments have been spectacularly successful. Today, the Delaware River boasts its own River Basin Commission, and the Delaware State Historic Preservation Office lists, among its Web site’s frequently asked questions, “What can I do to save a threatened building?” So, today, those RCA masters would be indirectly protected, but if it avoids damaging old buildings and doesn’t blast the residue into a river or lake, a record company can still legally dynamite its master discs.

It is notable that America at mid-century ignored historical recordings and films even as governments at every level crafted policy aimed at securing the future integrity of the nation’s natural and built environments. This neglect has been unfortunate, for America’s intangible cultural heritage is uniquely significant. Until the early twentieth century, when technology gave permanence and portability to American vernacular expression, it was understandable that observers might dismiss American culture as the rural ramblings of unlaundered rubes. But once drama found its way to film, vaudeville to radio, and blues, hillbilly music, and jazz to 78-rpm discs, the stage was set for a fabulous flowering of American creativity. It is, in fact, Orson Welles, Billie Holliday, Buddy Holly, Flaco Jiminez, Leonard Bernstein, Loretta Lynn, Norman Lear, and Steven Spielberg-with thousands of other artists-who created America’s twentieth-century cultural heritage. And by mirroring the diversity of our society so well, this expressive heritage has helped spread the dream of democracy around the world.

The significance of our twentieth-century expressive heritage deserves separate and lengthy treatment that cannot be engaged here. But as we turn our attention to preservation issues, it is critical that we understand that the immense cultural value of this body of material is a kind of “given” that justifies this conversation.

The Complex Character of America’s Intangible Heritage

The term “intangible cultural heritage” is somewhat problematic, because it denotes two things. First, it identifies heritage that is in fact intangible-for example, choreography, the baton techniques of legendary conductors, or the mentoring methods employed by a great master of blues or jazz. These cultural artifacts are not only intangible but in a sense ephemeral. They are examples of culture not yet fixed in any medium. In a very real sense, the unfilmed dance, the uncollected folk song, the undocumented master, like the unheard falling trees, do not exist.

At the same time, the phrase encompasses items that are thoroughly tangible-manuscripts, sound recordings, interview tapes, films, photographs, and the like. These cultural artifacts-what Abby Smith somewhat dryly labels “information objects”-function as containers for music, moving images of people and landscapes, still photographs, the spoken word, the jottings of authors, and the like. These thoroughly tangible objects-made of glass, paper, acetate, plastic, and so on-possess negligible intrinsic value. They acquire significance only in relation to the sights, sounds, and words they contain. My comments will concentrate on the preservation of these items.

The character and context of America’s intangible heritage present a number of unique preservation and access challenges. These challenges are more formidable than those surrounding preservation of the built and natural environments, and more daunting than those that have historically been faced by most segments of the library field. The complex character of intangible heritage may, in part, account for the slow evolution of public policy mandating or encouraging preservation and citizen access.

It is important to note that most of our twentieth-century legacy of music, film, television, and radio exists simultaneously as cultural heritage and corporate asset. Most intangible heritage involves collaborative art forms such as recorded music or filmed drama. These art forms were facilitated by emerging technologies such as moving pictures, disc recording, and broadcasting. They combine the creative efforts of many artists and technicians, and in the world of intellectual property are considered “work for hire.” Thus, the copyright to movies and records are controlled and exploited by those arts companies that financed their production by “hiring” collaborating artists, engineers, cameramen, and the like. In fact, the “work-for-hire” character of those art forms that today define American culture provided arts industries with asset value and revenue streams that fueled a century-long expansion of American media. As copyright-protected revenue generated by arts companies grew through the twentieth century, arts property was bought, sold, rented, or held back (and sometimes destroyed) by owners pursuing maximum earnings from records, films, and radio and television programming.

Today, few policies restrain the owners of intangible heritage. Old master discs can be destroyed. Absent laws or regulations protecting cultural patrimony (save those involving Native American heritage), intangible culture can be sold to foreign owners and even transported to another country.

Here’s one example: A few years ago, in preparation for a reissue of groundbreaking jazz recordings by Charlie Parker, Miles Davis, and other be-bop pioneers, original acetate master discs were shipped back to the United States for rerecording at an Atlanta laboratory. These recordings possessed a significant place in jazz history, because Savoy, the New Jersey company founded in the early 1940s by curmudgeonly entrepreneur Herman Lubinsky, was home to some of the first recordings of “modern” jazz. But during the 1980s, the entire catalog of the legendary Newark-based label had been purchased by a Japanese corporation, Denon, and the entire Savoy archive had been loaded in a chartered jet and shipped to Japan. Now a few of the most-significant discs were, in a sense, coming home for a visit-just long enough to be electronically enhanced for a state-of-the-art re-release.

It’s not only boutique arts companies such as Savoy that have been acquired by non-U.S. media giants. Vivendi, BMG, EMI, and Sony all own vast film, audio recording, and television assets, including the archives of such “apple-pie” American brand names as RCA, Universal, MCA, Capitol, Decca, and Columbia. In good economic times, the dangers inherent in foreign ownership of cultural heritage may be largely hypothetical. But when the fortunes of multinational companies sour, mandated cost-cutting measures can all too easily convert intangible cultural treasures into collateral damage. After all, when RCA blew a billion bars of music to smithereens, nobody made a conscious decision to bulldoze cultural heritage into the Delaware. Instead, the judgment was probably made by a guy with his name embroidered over his shirt pocket dutifully carrying out a top-down mandate to eliminate a few hundred thousand square feet of warehouse space.

Preservation and Access Go Hand in Hand

In matters pertaining to intangible heritage, access is just as important as preservation. Access is less meaningful in policy surrounding the natural and built environments. After all, you don’t need to hold a spotted owl in your hand or sit by the fire at Monticello to benefit from the preservation of a forest or a historic structure; you don’t have to climb Mount Rushmore to admire a monument. But it means very little to know that a film such as Black Orpheus is in a vault if you can’t view it, or to know that Willie Nelson recorded Hank Williams’s “I Told a Lie to My Heart,” if the record company won’t release it.

America’s prevalent attitude of passive consumption, accepting of whatever heritage property manages to make it through the multigated system of manufacture, marketing, and retail, does not advance the issue. Instead, as Abby Smith has written, we must influence public policy in order to actively “shape the resource base which is our common memory.” We must collectively engage the arts industries as advocates supporting the public good represented by a close and meaningful connection between citizens and heritage.

We must acknowledge that in an environment in which media corporations are increasingly threatened by freewheeling consumer access to arts products on the Internet, a heritage access movement may encounter significant resistance. To date, even our biggest public and nonprofit preservation institutions have shied away from this realm of obvious potential conflict, but the negotiation between the public purpose and rights of ownership must be taken on.

The challenges are very real, for even when films, recordings, and photographs-even original “masters”-are held by public agencies or NGOs, copyright protection of works for hire encourages corporations to aggressively limit the ways in which nonprofits can make use of these assets. Late in my tenure as Director of the Country Music Foundation, the Country Music Hall of Fame developed an exhibit on the life of legendary singer/songwriter Hank Williams. As part of the exhibit, the museum produced a CD-ROM that contained 10 seconds of every song Hank ever recorded, linking the music to discographical information and historical photographs accessible to museum guests via a computer-driven touch screen display.

This project would seem to be a straightforward application of the museum’s core mission-to inform the public about the history of country music. But the music publisher then in control of the Hank Williams catalog objected, arguing that the nonprofit Hall of Fame should be required to negotiate a synchronization license for the use of Hank’s music because the music had been combined with text in the CD-ROM. The publisher offered to issue a “sync license” for $1.00 per year.

Despite the insignificantly low proposed fee, the Country Music Foundation refused the license, indicating that the CD-ROM constituted a routine museum practice and was “fair use,” and that even a token payment would set a precedent that would likely prevent us from carrying out our tax-exempt mission in the future. This conflict was headed straight for the U.S. Supreme Court. (The publisher was Acuff-Rose, the company that had pursued the sampling infringement case involving rappers Two Live Crew all the way to the top.) The conflict was averted, but never fully resolved. At the eleventh hour, influential trustees of the CMF approached the publisher with a simple message: “Just back off,” and the exhibit went forward as planned.

However, a “back-off” message delivered in a back room is not public policy. Sooner or later, the Library of Congress, the Smithsonian Institution, and major nonprofits such as the Institute for Jazz Studies, the Rock Ôn’ Roll Hall of Fame, the Country Music Foundation, and other libraries and archives need to move beyond their assignment as the mere caretakers and preservers of intangible heritage. These institutions must take the lead in pushing back against the growing footprint of restrictive intellectual property law and help stake out a lasting public right of access.

Ownership in Intangible Heritage is Aggressively Protected

The legal and regulatory framework surrounding intangible cultural heritage is copyright and its close relations, trademark and name-and-likeness rights. (This is the same structure that surrounds the world of books and libraries, but, until recently, the world of print conducted its affairs with a lighter touch than did corporations controlling music, film, radio, and television assets.)

Throughout the twentieth century, arts industries grew by attaching protected revenue streams to a growing array of products. In fact, copyright advanced hand in hand with art forms such as film, recordings, and broadcasting, and copyright protection in turn facilitated the growth of arts industries. Although new technologies challenged the control mechanisms of the system from time to time, the overall trend through the twentieth century was toward greater revenue derived from an ever-expanding set of revenue streams protected by legislation over a longer period of time.

The term of copyright was extended again and again-a process grudgingly certified by the Supreme Court only months ago. And the size of copyright and its cousins-the aforementioned “footprint”-grew apace. Activities that would have dropped immediately into a de facto public domain 50 years ago are today aggressively exploited as intellectual property.

For example, the King Family Foundation was paid “several hundred thousand dollars” (60 Minutes transcript) for the use of Martin Luther King, Jr.’s “I Have a Dream” speech in an Alcatel commercial. Subsequently, the foundation threatened to sue USA Today when the national newspaper published the same King speech without permission. And, in nearly every edition of The New York Times readers are offered the opportunity to purchase what is, for the Times, a recently discovered heritage product-archival photographs. Only a few decades ago, the remarks of political, business, and cultural leaders-and the work of newspaper photographers-were treated as though these items moved immediately into the public domain.

Examples abound. Just months ago the Martha Graham Company wrapped up a court battle to secure the right to perform its founder’s dances. A year ago, a New York Times writer chastised city police and fire departments for failing to monitor the exploitation of their NYPD and NYFD trademarks. Would issues of ownership and revenue have attached themselves to such intangible cultural products even twenty year ago? Probably not. But today, as never before, the perceived potential value of revenue streams attached to products or activities possessing even the slightest degree of artistry, creativity, or originality has caused copyright and an “intellectual property mentality” to seep into what used to be everyday life. Driven by the perception of value and profit, ownership rights attached to America’s expressive life are today more extensive and longer lasting than ever.

Technology Complicates the Preservation Picture

Digital technology has not and will not save the “preservation and access day.” Technology has, instead, spun off a cluster of thorny problems affecting both preservation and access in intangible heritage. Most vexing is the electronic Tower of Babel built out of layers of obsolete hardware and software introduced and abandoned during the past 20 years. In Nashville’s entertainment industry, music publishers began transferring songwriters’ work tapes and “demos” to Beta and other early digital formats in the mid-1980s. Little did they know that, in what seemed like the blink of an eye, those machines would become museum pieces. Today, many early digital tapes will play back only on the exact machine on which they were recorded-not the same type of machine but one that bears the same serial number. Woe to those publishers who completed digital transfers and then discarded their analog disc and tape originals. (Most did.)

Today, as the notion of a “master” or an “original” is replaced by temporary space on a computer hard drive, we are increasingly deprived of the central “information object” around which we can structure a preservation system. The combined result of proliferating recording technologies and vanishing “originals” is that for the first time in history, the recent past is significantly more difficult to retrieve and preserve than the early era of discs and film.

In fact, it is digital technology and its magical ability to produce perfect duplicates of original work that have made today’s guardians of corporate heritage simultaneously excessively cautious and overly exploitative-cautious lest some undervalued treasure escape for a pittance, exploitative to ensure that, if it does vanish into the digital ether, it will leave behind a substantial cash offering. Simply put, in a digital age it costs more to license heritage art.

Further, technology provides public and private organizations with the means to unburden themselves of the task of managing bulky, unprofitable historical collections. When Corbis-the Microsoft cultural-assets spinoff-purchased the Bettmann Archive of photographs, it shrank the number of images available from the collection’s 17 million total to 225,000 that would be digitized. The remaining 16.75 million images were banished to Iron Mountain, cared for by a staff of one.

The Patent Office has taken to digitizing paper documents, then discarding originals. Items of “digital merit” to some unspecified beholder have, in a sense, made the cut; those images and performances will be seen and heard again and again. But photographs, films, and sound recordings not digitized may, for practical purposes, constitute culture lost.

It is perhaps easy to see why preservation of America’s intangible cultural heritage has lagged. Big global companies have distanced decision making from cultural concerns and on-the-spot archival practice. The expanding term, reach, and perceived value of copyright and its cousins have diminished access to heritage property, and technology has handed us a parade of obsolete formats-a preservation nightmare that, ironically, mostly affects arts products created in the past twenty years.

There’s a final reason why the development of policies engaging preservation of buildings, monuments, and the natural environment so energetically outstripped work in intangible heritage. When the fate of old structures and Mother Nature is in question, it’s not hard to distinguish the characters who wear white hats from those who wear black ones. Paper companies, chemical plants, developers, and real estate tycoons are easy targets for public wrath, and the road to public policy is smoothed when the only interests compromised are those of big corporations and “fat cats.”

However, recorded music, film, radio, and television exist only through the efforts of many creative individuals. The livelihood of many artists is linked to the effectiveness of copyright control. When we argue the public purpose in advocating reasonable access to intangible heritage, our efforts can be viewed as detrimental to the financial well-being of artists whom we admire and whose work we value. Certainly, the arts industries are not shy about trotting out songwriters and performing artists to argue on behalf of copyright extension or the criminalization of infringement. But well-founded or not, the perception that any resistance to the policy agenda of U.S. cultural industries hurts struggling artists has unquestionably hobbled efforts to define and advance broader issues of citizen access.

Despite corporate obfuscation and the inherent complexity of the task, efforts to advance a preservation agenda possess a distinct moral dimension. After all, if the expressive traditions that flourished under the umbrella of twentieth-century arts industries constitute both our shared heritage and the finest metaphor for our nation’s democratic experiment, shouldn’t we, as citizens, assert reasonable control over our creative past?

Intangible Heritage and the Public Purpose

Absent a clear voice advancing the public interest, recent trends in public policy have, if anything, moved in the wrong direction; the marketplace has steadily expanded its authority over culture. Given recently demonstrated limits to the moral capacity of the marketplace, it appears especially important that we today assert the public purpose, pushing back against the reach of corporations and the copyright community.

How can we proceed?

First, I do not think it is useful to browbeat corporations or to demand that they shrink shareholder value by advancing a preservation or access agenda. Today, more than ever, public corporations and managers are held to the rigid pursuit of profit by diligent and demanding owners. Asking a media giant to act like an NGO is like trying to teach a pig to sing: It won’t work, and it annoys the pig. Instead, we must develop a set of public policy principles and programs that will both protect intangible cultural heritage and ensure that the public retains reasonable access to heritage property. To be effective these programs must be more “carrot” than “stick,” offering incentives to companies that will preserve and make available archival holdings of recordings, movies, manuscripts, and photographs.

A word or two about libraries: Every preservation and access movement functions beneath a public policy umbrella, and the library model is one of the most venerable and widely accepted of all public interventions in cultural life. Library values are deeply entrenched in global culture. It would come as no surprise to me if a typical community were to view public funding of a music archive or tax-supported film series as controversial and marginal, but never question appropriations for the local library.

The historical relationship between libraries and publishers, in which publicly funded libraries functioned as good customers who supported the publishing enterprise while absolving publishers of preservation responsibilities, can be seen as an ideal preservation model. (Although our public libraries do not have a preservation mandate, they have nonetheless preserved many treasures. Our research libraries have, as far as I can tell, done quite wonderfully.) Unfortunately, because of cost, inconvenience, lack of expertise, and a DNA hardwired to favor print, our libraries have made only tentative forays into the world of intangible heritage.

Preservation efforts in other sectors mentioned here in passing offer interesting models. For example, without actually “taking” private property, the environmental and historic preservation movements have instituted a web of incentives and deterrents designed to protect the built and natural environments. While paper companies and real estate developers may resent even minor limitations on their absolute ownership rights, these industries have gradually learned to live with modest constraints on private property that advance a set of perceived public purposes. We can do the same with intangible heritage.

Drawing upon experience with old buildings and the environment, it is not difficult to imagine arts-industry tax credits earned for preservation efforts or for programs that make heritage sights and sounds available in classrooms. Public funding could be applied more generously to the preservation efforts of nonprofit archival institutions, or could be used to compensate arts companies so that designated historical copyrights could be duplicated and distributed solely at the discretion of an educational institution. Perhaps corporations could deduct a spectacularly appreciated value of archival holdings if the rights to a performance were conveyed to a nonprofit organization?

On the other hand, it is not beyond reason to imagine that, at some point in the future, the Federal Trade Commission or the Securities and Exchange Commission might require a corporation to develop a “cultural assets plan” as a precursor to a corporate merger or acquisition. Further, it seems reasonable that the sale of an arts company to foreign owners could be contingent upon assurances that American cultural material would be preserved and that American citizens would not be unduly deprived of access to heritage films, recordings, and photographs.

Developing and implementing these policies will be challenging. Unlike the average book, most heritage “information objects” are highly collaborative. Films, sound recordings, and broadcast transcriptions can best be viewed as bundles of rights and obligations protecting multiple revenue streams flowing to corporations, artists, producers, authors, composers, directors, and others. Although a single arts company generally controls the completed film or recording as a work for hire, many additional interests outside that company must be satisfied before a public policy program of preservation and access can be advanced. In this, as in other particulars, issues embedded in intangible heritage are more complex than those facing specialists in the natural and built environments.

Today, arts industry leaders are no more interested in a public preservation agenda than were their counterparts in chemical plants and real estate back in 1960. A few years back, the Recording Academy’s educational arm approached the Recording Industry Association of America with a request for assistance in developing a database listing all recorded master recordings in major label archives. The industry resisted. As the RIAA’s lack of support for the Grammy Foundation’s national database indicates, the arts industries remain both protective of intangible assets and suspicious of any outside interference in their business, even if that involvement appears innocuous.

To develop and implement a preservation and access strategy we must do three things. First, we must persuade the public that this important segment of America’s artistic legacy is at risk. At the moment, the level of public outrage is low, although arts industry attacks on downloading, file sharing, and disc duplication are triggering an important secondary conversation about access, fair use, and the appropriateness of fees and penalties involved in the use and misuse of intellectual property.

Second, we must come together around a common message in those arenas where public policy concerning heritage property is debated and developed. The library community has been the only component of the cultural sector consistently involved in the copyright debate, but library concerns, though important, are inevitably narrower than the broad public purpose of preservation and access. In other public policy settings, such as Federal Communications Commission deregulation of radio and television station ownership or the sale of arts assets to foreign corporations, the cultural community has not been at the table at all.

Finally, we need to do everything in our power to nurture a policy community, and a policy sensibility, within the arts industries. I have a specific interest in this field, for the Curb Center at Vanderbilt is dedicated to analyzing the ways in which cultural policy is developed and implemented within American arts industries and within our federal legislative and regulatory systems. In fact, in the U.S., most of the policies that shape our cultural landscape are not created by cultural specialists, but by business regulators and industry leaders. We need to find ways to provide browbeaten executives and federal legislative and agency staff with the knowledge, resources, and sense of the public good necessary to enable them to act in the public interest in an atmosphere of bottom-line pressure and partisan politics.

Compared with big oil, big technology, and high finance, the arts industries-film, records, and the like-are “small potatoes”-high-risk activities that generate, for the most part, millions, not billions, of dollars. Leaders in the arts industries almost never work merely to “follow the money.” If you scratch a film or music executive hard enough, you’ll almost always find someone deeply passionate about his or her chosen art form. These caring corporate leaders must be identified and made part of a preservation and access agenda.

(A quick note of concern: The U.S. arts system developed in the early twentieth century and is dependent upon the capacity of corporations to exploit revenue streams attached to multiple arts products. Today, there are some indications that the digital environment is permanently dismantling that century-old system. If the system itself comes apart, the remains of shattered companies, including heritage assets, will be scattered or will be absorbed by a handful of global media industries. Even if the possibility is slight, the prospect of systemic failure in the arts industries adds urgency to our efforts.)

There exist some encouraging signs. The Library of Congress digital preservation program has finally gathered up an impressive head of steam. The National Film Preservation Foundation has achieved great things over just a few years, and the newly authorized National Recording Preservation Foundation (which I chair) promises to engage corporate owners of heritage recordings in new and creative ways.

And the arts companies themselves sometimes find the capacity to do the right thing. In my last year as chair of the National Endowment for the Arts, the RIAA joined the endowment in a “Songs of the Century” program that provided music of historical significance free of charge to thousands of classrooms across the country.

Despite copyright bloat, a disarmed public, a technological rat’s nest, and disengaged parent media companies, it is not too late to put intangible heritage in its deserved high position on America’s preservation agenda.


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