![[Image of the claim of copyright symbol.]](http://arborlaw.biz/images/copyright.jpg)
The Kindle 2 released by Amazon last month is thinner and faster and has access to an increasing number of book titles. So popular that it flew off the shelves last Christmas despite the economic downturn, Kindle 2 continues to revolutionize the e-book and traditional publishing industries.
One of the latest features of the Kindle 2 raises a classic copyright issue: What happens when new technology impacts existing licensing deals?
Kindle 2 has a feature which reads text aloud. Authors and publishers contend that this feature creates an audio work under the US Copyright Act.
Under Section 106 of the US Copyright Act, the owner of a copyright has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Automated Text Reading: Copyright Performance, Derivative Work, Audiovisual Work, Phonorecord?
The automated text-reading feature of the Kindle 2 raises a minefield of copyright questions. The Author’s Guild, and several agents in the publishing industry, claim that the new feature cuts into the valuable market for audiobook revenues. According to Paul Aiken, Executive Director of the
Authors Guild (a rights organization representing copyright owners),
They don’t have the right to read a book out loud. That’s an audio right, which is derivative under copyright law.
Automated text reading raises a number of unsolved copyright questions.
Is automated text reading a derivative work? Derivative works are works which are based on an preexisting copyrighted work, but are translations, modifications, adaptations, and transformations.
Is automated text reading a performance? According to
Section 101 of the US Copyright Act, a “performance” includes reciting, rendering, playing, dancing, or acting a copyrighted work, either directly or “by means of any device or process.” In my professional opinion, there’s a very good legal argument that the Kindle 2 is a “device or process” which “recites” or “renders” a copyrighted work.
Does the Kindle 2 create a phonorecord under the US Copyright Act? A phonorecord is a material object in which sounds “
are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
Does the e-book in the Kindle 2, together with the Kindle 2 software which creates the automated text reading, constitute a “fixation” under the US Copyright Act? Fixation is an important concept in copyright law — fixation is a stable and tangible method of recording a copyrighted work which permits it “to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
Well-drafted license agreements can avoid technology-related copyright disputes
Copyright disputes concerning new technologies occur over and over again. Each new wave of technology brings new markets and new ways to create value from copyrighted works. Phonographs (record players) and phonograph records decimated the market for piano-player rolls. Compact discs practically eradicated the market for vinyl LPs (which has re-emerged, due to the perceptible differences in sound quality between digital and analog technologies). In each case, a publisher holding rights to a copyrighted work had a license agreement, or written transfer of rights, from the author who originated the work
Copyright license agreements and copyright assignments and transfers of ownership vary enormously in their legal terms. A license needs to be specific, spelling out in great detail which rights are given to the publisher or distributor, and which rights will remain with the author. In many cases, a license agreement goes into minute detail as to existing technologies (“the compact disc market in Australia,” “first North American serial rights,” “worldwide publishing rights in print and online mediums,” etc.)
But many licenses fall short in adequately handling future technologies. In former times, copyright licenses were commonly granted with the language “…and in all technologies now known or to be developed.” This is less and less common: as the number of media for accessing copyrighted works has exploded, the ability to value future markets is very uncertain. Authors, agents, publishers and distributors frequently fail to agree on the value that might be created down the road, so they decline to negotiate these rights into their contracts — which results in costly industry-wide battles such as the battle over online rights to print works which culminated in the landmark case of
Tasini v. The New York Times. In
Tasini, the US Supreme Court affirmed the rights of authors to receive compensation for Internet and electronic uses of copyright rights they had originally transferred for print publishing — a huge victory for freelance authors which provided them with additional compensation which far exceeded the amounts they were originally paid for use of their work.
I don’t buy the argument that the publishing industry and rights holders can’t adequately negotiate the value of licenses to future technologies. This happens, on a daily basis, with venture capital financing of new technology ventures. Contracts and agreements are very flexible: the parties can even agree to agree — namely, they can specify some method for valuing these rights down the road. It could be a formula based on a provable market value, it could be based on an “intellectual property appraisal” (similar to a real estate appraisal, but by an expert in valuing markets in new technologies).
![[Image of Kindle 2.]](http://s.wsj.net/public/resources/images/MK-AV005_DISCOV_D_20090317220415.jpg)
Carol dear. Nice to see your fine legal mind at work. However if I may be so bold as to point out to you, copyright, as you so well know only goes so far. The provisions that you are referencing, only cover LIVE PERFORMANCE of a work. While there is a VAGUE reference to audio works, it doesn’t apply here because the copyright would need to be extended to machines talking to us. If that were the case, then Apple’s operating system would be in violation as well, as would windows XP and Vista, and Linux. Because all THREE operating systems, contain the same ability. The user has the ability to highlight text and the operating systems have built-in text reading capabilities. Suppose for a moment that the user visits the webpage of the NY Times. Now suppose that said user would like to read their mail BUT at the same time have the cover stories of the NY Times read out loud while they’re reading their mail. The user would highlight said cover stories, and select a few options (in the case of OS X a single click) and bam, instant voice reading out loud the cover stories of the NY Times website. Who’s voice is that ? Is it a live performance of a copyrighted work ? Is it a human voice, and is that human expecting a fee from those that listen to the works for ITS reading the news out loud ? Note the use of the term “ITS”. The voice is computer generated, and there is no human attached to it. Its a function of the operating systems involved. And there is no fee involved for hearing that work outloud. Let’s take that one step further in the supposition, and suppose that the user is in fact BLIND. You see where this is going yes ? The supposition doesn’t detract from the legalities of the implications of what you’re referencing. The simple fact is that the copyright law doesn’t cover this supposed gray area of kindle 2′s existence. Because there isn’t a gray area. Its rather clear in fact. And even if the Supreme Court, or a lower circuit court were to enact a limit on Kindle 2′s abilities, it would only apply private works, not public domain works.
Hi Miles, thanks for dropping in! I think you said a lot with the phrase “gray area.” You raised about five issues.
First I want to clarify what I mean by the ‘performance right.’ I’ve already received remarks about the public- versus non-public performance distinction. The Section 106(4) performance right is only for public peformance. And frankly, what I was envisioning as I was writing this blog post — was the Kindle user on the subway who’s listening to a book, surrounded by a group of people. That’s probably not the main intended use of Amazon for the Kindle 2 — but it’s definitely one that can be anticipated. If Amazon is not directly raising Section 106(4) performance right issues, their users might be.
Blind users have wide exemptions for their devices. Libraries and educational situations do as well, in the Copyright Act sections which follow Section 106.
Then there’s the issue about machines “performing” works.
And the issue of whether copying a program combined with data (the e-book loaded onto the Kindle 2) into RAM is making a “copy” under the Section 101 definition of a “copy” in the US Copyright Act. The extremely early computer law cases on videogames settled that one: YES. (There are some subtleties and maybe my colleagues will point some of those out.)
My point on performance mostly hinges on the capability of making a private performance by a machine “public” — e-books and Kindles are highly portable. Any time you take one out in public, it will be by definition creating a public performance.
There are differing points of view on this argument (text-to-speech technology and its ability to create a “performance” of a work under the US Copyright Act). It’s not settled and is therefore, capable of generating a lawsuit. Of course, you can always argue what the law *should be*
and I think we are now at that point in copyright policy.
Here’s a link to a discussion of the text-to-speech issue on Engadget:
http://tinyurl.com/c7b92j
Carol Shepherd
Arborlaw PLC