Is Kindle’s text-to-speech a “public performance”?

Amazon recently released a new version of its Kindle E-book reader. Among the new features in the updated reader is the ability to have the reader perform a text-to-speech conversion to render the book in audio form. The Author’s Guild, however, was not amused:

Some publishers and agents expressed concern over a new, experimental feature that reads text aloud with a computer-generated voice.

“They don’t have the right to read a book out loud,” said Paul Aiken, executive director of the Authors Guild. “That’s an audio right, which is derivative under copyright law.”

Although there doesn’t appear to have been any sort of complaint filed yet, the Author’s Guild appears to be firing a warning shot across Amazon’s bow concerning this new feature.

David Post analyzed the issue a bit at the Volokh Conspiracy, and feels that Amazon has the upper hand here:

There’s no “audiobook” involved in the Kindle transaction. The copy that customers receive is just the (marked-up) text, in Kindle format – same as before. The sounds are generated on-the-fly when the user presses the right button — the sounds aren’t “fixed” anywhere, i.e. they’re not stored separately from the text itself. Therefore, no sound recording; therefore, no derivative work; therefore, no additional royalty revenue for the copyrightholder.

I think Post has a good point in stating that text-to-speech as implemented by the Kindle is probably not a derivative work.  Works covered by the copyright statute must be “fixed in a tangible medium of expression,” but the text-to-speech feature at best produces a transient audio representation of the full-text content.

However, I think that Post errs in assuming that just because there is no derivative work, there is no possible copyright infringement.  It’s possible that the text of the statutes provides infringement theories that do not rely on the creation of a derivative work.

The following discussion will be easier with a concrete example of a recently written book with a well-known audiobook version.  Let’s assume that President Obama’s book, “Dreams From My Father,” is available in full-text on Kindle.  Let’s also assume that, as reported, the Kindle would allow the full-text book to be reproduced with text-to-speech.

Literary works are protected under Section 102(a)(1), and are defined in Section 101 as “works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.”  (Emphasis added.)  It seems clear that “Dreams From My Father,” distributed in full-text form, would be protected as a literary work, as it is a work expressed in words, embodied on disks (or other computer-readable media).

Pursuant to Section 106(4), the owner of the copyright in a literary work has the exclusive right “to perform the copyrighted work publicly.”  Again pursuant to Section 101, to perform a work means “to recite, render, play dance, or act it, either directly or by means of any device or process[.]”  (Emphasis added.)

It seems to me that, when the Kindle performs text-to-speech processing on “Dreams From My Father,” it could be considered a performance, either as a recitation (less likely) or as a rendering (more likely), by means of a device.

So, we have a protectable work, and we could have a performance of that work.  It seems that the only remaining question is whether the performance is “public.”  Here’s where things get interesting.

Section 101 defines public performance as follows (emphasis added):

To perform or display a work “publicly” means —

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Well, the work itself is transmitted to the Kindle at some point, and it seems like the transmission of the work would be “to the public,” even though in separate places at different times.  However, is the “performance or display of the work” transmitted if it’s generated by the Kindle itself?  Or would the text-to-speech have to be generated on an Amazon server and itself transmitted to the Kindle for the “performance or display” to be transmitted?  Does the distinction even matter?  I don’t know.

Of course, there’s still fair use to look at, there’s myriad limitations on the exclusive rights granted in Title 17, there’s the case law that fleshes out the statutory recitations above, and there’s the terms of Amazon’s licensing (which might incidentally cover this type of rendering).  At the very least, though, it seems that whether this could be infringement wouldn’t be decided on whether or not a derivative work is created (as suggested by other commentators), but instead on whether a “public” rendering has occurred, thereby infringing the copyright holder’s exclusive right to public performance.

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One Response

  1. […] cannot rely on a direct infringement theory, Doctorow may be right.  However, as discussed in my last post on the topic, the fact that Amazon is transmitting the e-book to the Kindle, and the possibility […]

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