The executive director of the Author’s Guild apparently objects to a feature of Amazon’s new Kindle 2 that would permit the vision impaired to hear the book’s text read in a computer generated voice. The Wall Street Journal quoted Paul Aiken yesterday as saying “They don’t have the right to read a book out loud. That’s an audio right, which is derivative under copyright law.”
Does Aiken have a legitimate gripe? I say it depends on the technology. And the fact that there could be a difference based merely on a technological setup underscores how digital technology has sent some aspects of copyright fumbling towards absurdity.
Granted, one of the exclusive rights that a copyright owner has under the Copyright Act is the right to prepare derivative works. The Copyright Act defines a derivative work as a “work based upon one or more preexisting works, such as a . . . sound recording . . . in which a work may be recast, transformed, or adapted.” But is the sound being read aloud by the Kindle 2 truly a “work” that is protected by copyright? If it’s not a work to begin with, it can’t be a derivative work.
Copyright protection only attaches to works of authorship that are fixed in a tangible medium of expression. For a work to be “fixed,” it has to be embodied for more than a mere transitory duration.
Here’s where the Kindle 2’s technology could determine whether a copyrightable derivative work comes into existence. I’ve searched for some technical specifications on the Kindle 2 but haven’t found anything on this point (maybe someone in the comments can help) — if the text-to-speech functionality creates an entire file that is saved and played back, it looks more like a fixed, copyrightable work has come into existence. On the other hand, if the device creates the audio data on the fly, so to speak, and releases it into some sort of buffer that is continually overwritten, it looks less likely a copyrightable work has been created.
We can look to the Second Circuit’s Cablevision decision from last summer for guidance. (The real name and full cite to that case is Cartoon Network v. CSC Holdings, 536 F.3d 121 (2nd Cir. 2008)). In Cablevision, the court held that a buffer comprising just one second of an audiovisual work at a time did not embody the work for more than a mere transitory duration.
So do you see how this could relate to the Kindle 2? If just a little part of the underlying textual work is being converted to audio at a time, there is nothing derivative being embodied for more than a mere transitory duration. Though creating audio, it would seem not to implicate the “audio right” that Aiken of the Author’s Guild mentions.