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Testimony on the Smithsonian Controversy to the House Committee on House Administration 5.25.06

Written Testimony

Patricia Aufderheide, Professor and Director

Center for Social Media, School of Communication, American University

I teach in the School of Communication at American University, where we teach aspiring professionals about the importance of media for a healthy, democratic public culture. I also run our Center for Social Media, which puts a focus on media designed to promote democracy and civil society. I have recently worked with many documentary filmmakers in creating a Documentary Filmmakers' Statement of Best Practices in Fair Use, which strengthens the crucial balance of rights within copyright. My comments here are my own and do not represent the University.

In principle and in practice, the Smithsonian/Showtime controversy has alarmed many film teachers and filmmakers.

The issue of principle: The Smithsonian needs to make its materials available to the public equitably. The Smithsonian controls unique, irreplaceable resources to tell the nation's histories, to explore cultural heritage, the natural world and the progress of science; these stories can and should be told in many different ways. Stories that assert and reassert our contested understandings of who we are and what we can do will be crafted from that material. Without that material, those stories will be diminished- if they can be told at all. Moreover, the majority of the Smithsonian's budget comes from American taxpayers, who deserve both accountability and equitable access to use of the materials, not merely the opportunity to consult them. Freedom of expression and the public's right to know cannot take a back seat to corporate interests of the Smithsonian's partners, or the Smithsonian's concerns to supplement its income.

Issues of practice: The Smithsonian/Showtime deal continues to be murky in essential details. This leads to suspicion, rumor and confusion. It also makes it impossible to judge the potential consequences of the Smithsonian's partnership. The Smithsonian's silence has raised questions that deserve answers. For instance:

What criteria are used to judge "incidental" use? Who decides? Can the criteria change on a case-by-case basis? Are the criteria based on Showtime's interests? The Smithsonian's? the public's?

How long does this contract last? What are the Smithsonian's obligations as Showtime adjusts to changes in the marketplace? Under what conditions could the arrangement be rescinded? This is a tumultuous, unpredictable period in media. Showtime's current plans could soon look sadly obsolete--even within months. Showtime's corporate parent CBS could easily reshuffle its deck.

What kinds of non-compete clauses exist in this contract? How might the contract terms limit the Smithsonian's own ability to generate public media? Could Showtime's interests be put ahead of public accessibility? Does the contract, for instance, limit how much video the Smithsonian can make available and easily accessible on its websites?

What penalties for Smithsonian violation of the agreement has Showtime exacted? What implications do these have for public access to information?

Has the Showtime contract had a chilling effect on filmmakers' projects, and on potential donors? For instance, what has been the experience of curators and other gatekeepers in the last two months, as compared with earlier?

The Smithsonian needs dependable public support, through taxpayer resources, to go along with a strong accountability and public access policy. Penalizing the Smithsonian's hardworking professionals for poor management judgment with budget cuts will also punish the public that needs the Smithsonian's services and programs. The Smithsonian moreover needs taxpayer support to extend its immensely useful resources into the digital realm, where filmmakers both professional and amateur can use them as the elements of new stories about our astoundingly diverse American culture and heritage. Digital platforms now provide the opportunity for the Smithsonian to provide unparalleled access to at least some materials--and certainly to indices of its materials and databases--to the general public.

Finally, the policy of open access can also lead to unimagined new business opportunities, both for the Smithsonian and for others. The example of the Prelinger Archive, which provides much material unencumbered by copyright freely to the public, is a valuable one. The Archive's policy of permitting free use of a low-resolution version, while charging for access to a higher-resolution version of the same material, has resulted in higher profits than ever before. The example of the Vanderbilt Television Archives is also instructive. After Google Video incorporated Vanderbilt's index and database, orders for its videos multiplied.

We are at the beginning of an era in which America's history and the stories of our physical world can be told by many, many more of America's people, for new networks and previously unrecognized communities, on new platforms and media. Do-it-yourself producers who are today pouring content into Youtube, Google Video and Yahoo Video are only the harbingers of a more participatory media era. Professional filmmakers today need access on an equitable basis to the Smithsonian's holdings. Their needs are those, eventually, of all of us.

Thank you.