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Amazon has recently introduced a newer, spiffier version of their wireless reading device, the Kindle. For those of you unfamiliar with this device, it is an electronic book reader that allows you to download a digital book from the Internet and then read it on a high-resolution screen. This updated version has an assortment of added functions and improvements, including longer battery life, more storage space, a sleeker look, and the controversial text-to-audio function.
The text-to-audio feature allows the text of these electronic books to be read out loud in an electronic voice that imitates the nuances and speech patterns of humans. This function was not happily welcomed by everyone. Paul Aiken, the Executive Director of the Author’s Guild, expressed his concern with this new feature, saying, “They don’t have the right to read a book out loud . . . that’s an audio right, which is derivative under copyright law.” The Author’s Guild has generally expressed concerns about the impact of this function on their audiobook market. However, an Amazon spokesperson responded by remarking that text-to-audio function uses text-to-speech technology and that users would be able to distinguish this function from the audiobook experience. Others have also been dubious about the credibility of these claims.
Copyright infringement results from a violation of the copyright owner’s exclusive rights, which include the right to reproduce the copyrighted work, prepare derivative works based on the copyrighted work, distribute copies, perform the copyrighted work publicly, and display the copyrighted work publicly. So would the text-to-audio function violate the copyright owner’s exclusive right to prepare derivative works under the Copyright Act?
There seems to be some confusion over whether or not fixation is required to violate the copyright owner’s exclusive right to prepare derivative works. Fixation occurs under 17 U.S.C. § 102 when the work’s “embodiment in a copy or phonorecord, by or under the authority of the authors, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Existing case law is confusing, as it promotes the idea that the derivative work must have some “concrete or permanent form,” which is somewhat contradictory to the 1976 Act committee reports, which clearly state that fixation is unnecessary. If there is a fixation requirement or some other kind of requirement of permanence or concreteness, then perhaps Amazon is off the hook, as the Kindle does not seem to store a copy of the book in audio form and instead converts text into audio format “on the fly.” But if fixation is not required, perhaps the Author Guild’s claims are not quite as far-fetched as they seem.
– Christine You
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