The Author’s Guild has raised quite a fuss over the new Amazon Kindle’s text-to-speech feature.  But do its claims have merit?

Amazon’s Kindle 2

The recent spat between The Author’s Guild and Amazon over its new electronic book platform, the Kindle 2, has highlighted some common misconceptions about copyright law that many hold.  When the specifications of the new Kindle were announced, many people took interest in the new device’s ability to process the text of a document and generate a synthesized voice and read the document to a person.  Most people looked at this and thought ‘Cool!’  Others looked at this and saw a threat to the fairly lucrative audiobook industry.  In response to this development, The Author’s Guild began making accusations that the new Kindle feature constituted copyright infringement: specifically that it created a derivative work and/or a public performance.

Contrary to what the media industry would have us believe, the rights of copyright owners are limited both in scope and time.  The rights of a copyright holder are explicitly spelled out in the copyright laws (Title 17 of the U.S. Code, for those of you following along at home).  If the right you seek to enforce isn’t in the copyright laws, copyright holders don’t have it.

So what actual copyright rights does the Author’s Guild claim the Kindle offends?  The Guild claims that there are two rights at issue: the right to create derivative works and the right to publicly perform a work.  But neither of these claims have any merit.  While the Guild has colorable claims on most of what they would need to prove these claims, each claim is missing an essential element.

Copyright law does indeed protect the right of a creator to make derivative works.  One of the fundamental rights bestowed by copyright law is the right to control what others do with the work in a creative sense, not just making copies of your textual work.  But one of the limits of copyright law is that it only extended to recorded material.  The material can be be recorded in any way: writing, audio record, video recording, sculpture, anything that makes the work tangible.  But without tangibility, there is no derivative work.  This should make sense to most people.  Without this rule, reading a book to a person would be a derivative work.  Displaying a slide in a slide show would be a derivative work.  This would be an intolerable state of affairs.  But a line must be drawn somewhere, and the line drawn by the statute is when the work is reduced to a tangible form.

A slightly better argument on the part of the Author’s Guild is that the text-to-speech function creates a public performance of the text.  This is another right enjoyed by copyright holders.  It covers the obvious cases where a work’s only value is in being shown to others by performance, like a screenplay or sheet music.  Since the market for these works is not in their physical copying, copyright law protects these works by making it illegal to perform them in public venues.

Unfortunately for the Guild, the public performance right requires, as the name suggests, that the performance be public.  Just like you can watch a DVD with your friends but not play it in a giant ampitheatre for the world to see, a work can be performed privately without infringing a copyright.  It’s the public nature of the display that offends the rights of a copyright holder.  Nothing in the Kindle’s design makes the text-to-speech function inherently public.  Otherwise, everything from a car stereo to a personal computer is a public display/performance of a copyrighted work.

Technology has always made the creative community nervous.  Copyright law started out as an attempt to control that tool of mass pirating known as the printing press, and copying technology has continued to frustrate the creators of works.  CDs, mp3s, DVDs, divx, and other electronic media have vexed many in the music and movie business.  It stands to reason that, eventually, the computer technology revolution had to hit print media just as hard.  Authors may not like it, but technology is going to change the nature of media, and they can either adapt or get left behind.