New England Cultural Database Terms of Service: Undermining Democracy

Originally published on May 28,2007
BOOKS OF INTERESTThe Nonprofit Economy by Burton Weisbrod
The Economics of Art and Culture by James Heilbrun, Charles M. Gray

When Governor Baldacci came into office, he established an economic initiative called "The Creative Economy". Upon hearing the term, I interpreted it to mean "thinking creatively about the economy, but I soon learned that the term intended stimulating the economy through the arts.

In the process of researching the creative economy, I found The New England Cultural Data Base, which is funded or partners with multi-state and non-profit organizations. The New England Cultural Data Base is administered and maintained by The New England Foundation for the Arts, which receives grants from The National Endowment for the Arts

I ithought I would to set up an Andersen Studio account but upon reading the user agreement, I concluded that the agreement is highly exploitative of artists. In that regard, I submitted the following letter to The Boothbay Register and The Lincoln County News and other Maine newspapers.

Below is the latest version of the letter sent to The Boothbay Register on June 11. 2007, and emailed with minor editing to the Governor of Maine

Dear Editor;
I have some major concerns with the New England Cultural Data
Base, which is maintained by the New England Foundation for the Arts, and funded in part with federal grant money through the National Endowment for the Arts and also funded by the Maine State Art Commission, and other state art councils of New England . The New England Foundation for the Arts is a private charity and a tax exempt corporation as well as the entity referenced by ""We," "Us," "Our" inthe New England Cultural Data Base Terms of Service Agreement.

It is not clear to me that the New England Cultural Data base has any thing to offer that is not already available through the Maine Arts commission or The New England Foundation for the Arts. Neither of the afore-mentioned organizations have a terms of service agreement. Maine Arts provides an online database of Maine artists and organizations .The New England Foundation for the Arts provides many online reports about the impact of the arts sector on the larger economy, which one can download for free without signing an agreement.

In order to access the services of New England Cultural Data Base
website, or to be included in it's database, it is necessary to create an
account. To do so, one must accept the terms of NECD's agreement, which
states that The New England Foundation for the Arts has

"perpetual, unlimited, irrevocable, royalty-free, non-exclusive, assignable,and worldwide license, to make, copy, perform, publish, display, distribute, transmit, translate, modify, prepare derivative works and use the content in other works in any form, media, or technology"

After laying claim to such all pervasive rights over the submitted content, NEFA's Terms of agreement requires the user

"to and waive, and never assert, any moral rights to the content"

which is followed later in the agreement by a statement that the user

" WAIVE ANY AND ALL CLAIMS OR REMEDIES WHICH YOU MIGHT OTHERWISE BE ABLE TO ASSERT AGAINST US UNDER ANY THEORY OF LAW (INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY LAWS"

The user must also agree not to bypass The New England Cultural Databases' homepage or "deep link" to other pages on NECD's website or use it in another medium without their written permission.

However NECD states that it is allowed to deep link to pages of the user's website and access whatever content that NECD base "deems appropriate" This can arguably be interpreted as giving NECD permission to select "submitted content" from the
user's website.

The agreement includes a section titled "Good Samaritan Content and Complaint Procedures Policy , in which NEFA makes vague promises that, in some instances, NEFA, at its sole discretion, may decide to protect submitted content from third party copy-write infringement, but NEFA remains essentially uncommitted to taking responsibility in protecting artists from copywrite infringement.

The language of the contract states that "The provisions of this section are intended to implement this policy but are not in any way intended to impose a contractual obligation upon Us to undertake, or refrain from undertaking, any particular course of conduct even so, the account holder must agree to never assert any legal action against NECD and to waive and never assert any moral rights against NECD."

Most of our local non-profit organizations and some of our local art galleries have accounts on this New England Arts Database. I have spoken about this subject with the Boothbay Art Foundation where no one claimed knowledge of how BRAF came to be listed on the New England Cultural Data Base.

I for one have a problem with NECD's agreement. I would like to hear from other artists and art organizations as to how they feel about what appears to be unlimited control over the user's submitted content by this data base agreement.

I would also like to hear from the cultural institutions as to whether they signed up for accounts or if their names appeared on the database in some unknown way. My web blog contains an incomplete list of local organizations that have accounts on NECD. My blog also presents a comparison between the NECD user agreement with the Google user agreement, explaining why I decided to trust Google but not to trust NEFA, from a my layman's reading of the user agreement, which reads as understandable in ordinary language.

Why haven't art organizations, including the state arts councils such as
the Maine Arts Commission, demanded terms that protect the rights of the artist?
After all, they owe this much to those whom they represent.

As I see it, many of our arts and cultural organizations are non-profits to which the community has generously donated, and I feel there is a moral obligation to protect the rights of the individual artists, but it appears to me that by signing this agreement, arts organizations have failed to protect the artist from copyright infringement, while agreeing to waive and never assert any moral rights or pursue any theory of law against NECD.

Mackenzie Andersen
Andersen Studio, http://www.andersenstudio.com/

Update. This letter was never published in The Boothbay Register. I received a message from the editor that included an edited version of the letter which would be published upon my approval. The edited version deleted all of the direct quotes from the new England Cultural Data base terms of agreement. I did not approve the editor's edit of my letter to the editor.

As of April 2009 The New England Cultural Data base Terms of Agreement remains the same.

I added aditional blog comments on June 04, 2007 , June 15, 2007, June 22. 2007 and

In the June 22 2007 Blog Post I commented that "I personally agree that The NECD TOS is unenforceable, but also take into consideration that it is for perpetuity. It is unpredictable how the future legal climate will evolve. " Looking back in retrospective I can say that our country has changed more than I would have possibly imagined and in a direction that gives more possibility of legal weight tothe NEDC terms of Agreement

Full NECD agreement found here
The following is a list of organizations local to the Boothbay Region, which have signed the NEFA terms of agreement.
THE BOOTHBAY ART FOUNDATION
THE BOOTHBAY OPERA HOUSE BOOTHBAY RAILWAY VILLAGE BOOTHBAY THEATRE MUSEUM
COASTAL MAINE BOTANICAL GARDENS, INCORPORATED BOOTHBAY REGION HISTORICAL SOCIETY
NATIONAL SOCIETY OF THE DAUGHTERS OF THE AMERICAN REVOLUTION ROUND TOP CENTER FOR THE ARTS, INCORPORATED
FIREHOUSE GALLERY
FRANCISKA NEEDHAM GALLERY
VICTORIAN STABLE GALLERY
MAINE ART GALLERY
WISCASSET BAY GALLERY
LINCOLN FESTIVAL OF THE ARTS
BACKROADS GALLERY