I had rather hoped to stay away from the controversy being generated by the new Kindle 2 Book Reader from Amazon and its “text to speech” feature that will allow the reader to offer a computer-generated audio reading of e-books, but there are copyright issues here too good to ignore. It is hard to make sense of the claims being made in this kerfuffle, but it may be worth the effort in order to clarify what copyright does and does not protect.
In a widely-ridiculed public pronouncement, a spokesman for the Author’s Guild has denounced the audio feature of Kindle as an infringement of copyright, even though the e-books sold by Amazon are, of course, licensed from the publisher. He is quoted as saying the “they,” meaning consumers, “don’t have the right to read a book out loud… That’s an audio right, which is derivative under copyright law.” This led many to trot out a parade of horrible consequences, suggesting that parents might be sued by the Author’s Guild for reading”Goodnight, Moon” to their children. So the President of the Author Guild took to the New York Times Op-Ed page to explain that that was not their intention. Unfortunately, his piece does not really explain what the claim really is. He merely says that the Guild collects separate royalties for audio books and for e-books and that Kindle would “swindle” authors out of that double fee. From a copyright perspective, it is interesting to try and sort out what infringement, if any, is involved in this “swindle.”
One way to look at this, of course, is as a simple contract dispute, and contract provisions are probably the way to settle this. Authors and publishers can simply charge Amazon more for the e-book license to compensate for the potential decline in audio book sales when those e-books are “read” by Kindle. Other e-book platforms would pay a lower price if they do not provide a text-to-speech function, and both sides could monitor to see if audio book sales really do decline. For e-books already licensed to Amazon, the Author’s Guild could try to claim that this feature of Kindle 2 breaches the license terms, and try to demand additional money. The public spat is likely an attempt to force such renegotiation.
But it is more interesting to ask if any copyrights are being infringed. When a parent reads to a child, this is a private performance of a work that does not infringe any of the rights under copyright. It is very important to remember that the performance right in copyright is only an exclusive right to authorize or deny PUBLIC performances, defined as a performance “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered.” Based on this definition, it is unlikely that Kindle would ever infringe the public performance right under ordinary use.
This distinction of performances is undoubtedly why the Author’s Guild spokesman spoke of a derivative right. Now he was simply wrong to refer to an “audio right” which is “derivative under copyright law.” There is no separate “audio right,” there is only the public performance right discussed above and another exclusive right over the preparation of “derivative works.” So a lot turns on whether an audio reading of a text can be called a derivative work.
It is generally thought that a derivative work must itself be an original work of creative authorship. So a translation of an English text into Hindi involves new creative expression, as does the creation of a film from a novel; these are classic examples of deriviative works, and each involves the reuse of protected expression in combination with new creative authorship. So a translator or a filmmaker must get a license from the original author to create these works, in which there is subsequently two (at least) copyright interests. But an audio reading adds no creative expression, so it is hard to see how it is a derivative work. In this fascinating article, Julian Sanchez analyzes this argument very nicely, and suggests an exception — an abridgment has been held to be a derivative work, and it does not contain original expression that is added to the original. I think there are historical reasons for this, but I will let Sanchez explain the ins and outs of this debate to those who are interested.
What I want to add to this discussion is an additional argument for why an audio reading should not be considered a derivative work. There is a long standing rule of statutory interpretation that instructs court to read laws in wasy which do not make parts of the language used by legislatures irrelevant; we do not want interpretations that make whole portions of a law redundant or unnecessary, since we assume legislatures did not intend those readings. If an audio reading is interpreted as a derivative work, we would have just such a reading, because that interpretation would make the public performance right “mere surplusage.” Why would Congress include a specific right over performance, and limit that exclusive control to public performances, if ALL audio readings were derivative works and therefore subject to the authors control based on a different exclusive right. Audio readings are not derivative works because, unlike abridgments, they are subject to a different right, and we must assume that Congress intended that right (public performance) to circumscribe the control an author should have over readings of his or her work.
POSTSCRIPT — In the interval between writing this post and publishing it, the news has come out that Amazon has agreed to make changes to the Kindle. I am afraid this merely reflects on the chilling effect of a lawsuit threat; it does not change the legal analysis, which suggests that the Author’s Guild won by making a very weak claim, but making it loudly.