Amazon Kindle 2: Does it Violate Author’s Rights?

Amazon’s next-gen Kindle 2 eBook reader, introduced earlier this week, is due to go on sale on February 24. However, publishing industry insiders already anticipate an impending controversy over its text-to-speech (TTS) capabilities.

As noted in our hands-on impressions, the Kindle 2’s biggest step forward over its predecessor appears to be its ability to vocalize text, reading manuscripts like an audiobook for the benefit of end-users. Unsurprisingly, it’s a feature that many book publishers are taking odds with.

According to sources within the publishing industry, Amazon failed to inform its publishing partners about Kindle 2’s speaking capabilities in advance of the device’s public debut. Many publishers only found out about this technological innovation at the same time consumers did.

“It’s stirring up book publishers, especially those concerned with the audiobook business – or at least it should,” reports Seth Gershel, a publishing consultant who was formerly head of audiobook publishing at Simon & Schuster and was founding president of the Audio Publishers Association (APA) industry group.

Where this goes depends a lot on future discussions between Amazon and audiobook publishers. The publishers have a vested interest in debating whether it is their rights that are being exploited to allow a text-to-speech component on the new Kindle.

As a result, while neither side is talking, there may be intellectual property rights issues that will need to be settled, or litigated, as the second-gen Kindle hits the streets. While thus far there haven’t been any signs that the issue will delay the Kindle 2’s proposed sale date, the situation could change closer to shipping time if one or more publishers decide to seek legal recourse.

Define “Audiobook”

At the heart of the discussion is the issue of whether Amazon’s TTS feature creates another form of the work and turns it into an audiobook, infringing on certain intellectual property holders’ rights.

“The audiobook is an accepted format, defined as an audio recording that is more spoken than music. And [the Kindle 2] sure sounds like it might be creating audiobooks,” says Gershel. “Or, perhaps this is a hybrid format. But it seems like it is bumping up against audiobook rights. Certainly, it raises questions that will need to be considered between Amazon and the publishers, who in turn represent the authors’ “interests.”

Amazon is likely to argue that Kindle 2’s TTS capability is merely a technological advancement. The insinuation being that “I sell you this eBook, which I clearly have the right to do, and I sell you this software that translates TTS, which I also have the right to do,” explains Mike Shatzkin, founder and CEO of The Idea Logical Company, a publishing consulting firm. “And then you, the consumer, mix the cocktail. How can any author sue about that?”

However, some book publishers are likely to view a verbalized version of their e-books as a completely different version of the content it licensed to Amazon. In other words, when you sit down to listen to a spoken version of a book on the Kindle, it’s the very definition of enjoying an audiobook.

The Authors Guild certainly believes Amazon has crossed the line. In a recent article in the London Telegraph, Paul Aiken, executive director of the Authors Guild, asserts that Amazon didn’t have the right to turn an e-book into an audiobook. “That’s an audio right, which is derivative under copyright law… They [eBooks and audiobooks] are derivative works of a book and fall under the copyright,” he told the paper. “This [text-to-speech capability] is a new format of audiobook.”

Countering this argument on his blog though, Michael Kwan, senior staff attorney for the Electronic Frontier Foundation, suggests that the Kindle 2’s TTS features don’t create any “disruption of any exclusive rights held by the copyright owners.”

“Even if there were [such issues],” he claims, it seems pretty unlikely that robotic readings by text-to-speech synthesizers would harm the market for the original work, and thus the text-to-speech versions are overwhelmingly likely to qualify as fair uses, were it even necessary to get to that issue.”

Don’t Piss Off Amazon

It’s not as if Amazon is unaware of the legal definition of an audiobook, however. In May 2007, the company bought Brilliance, an audiobook publisher, and began an audiobook-on-demand download service.  More recently, they purchased Audible, currently the largest purveyor of digital audiobooks.

Of course, legal issues are one thing. How book publishers proceed and determine a course of action and future strategy are not. Publishers are naturally wary of creating a legal brouhaha with Amazon, one of their best customers.

Sara Nelson, a columnist at Publisher’s Weekly writing about Kindle 2, notes that “it’s no secret that publishers have more complicated, love-hate relationships with Amazon, which still commands less than half of the bookselling market, than, say, Barnes and Noble. But its ‘mind share’ is huge – Amazon feels to bookselling what Xerox was to copiers in the 70s – and its power increasing. And there are plenty of traditional publishers who worry just how that power will be used: To demand special terms that cut into publishers’ profits is one real concern.”

Turning an e-book into an audiobook without additional compensation to publishers and authors is, naturally, a major concern. The potential to harm the audiobook business if consumers can simultaneously buy both a printed and an audiobook version for the same $10 could also leap to the top of publisher’s concern list. At least, “if they’re paying attention to audiobooks’ future, it certainly should,” says Gershel.

Even as Amazon and publishers continue to do business with each other, both sides currently are leery of broaching the Kindle 2 subject until each has its legal and strategic ducks in a row.

“The question is whether the Authors Guild or the AAR [Association of Authors’ Representatives] or the AAP [Association of American Publishers], for that matter, will want to litigate it,” opines Shatzkin. “It is certainly litigatable. But it’s also silly. It will be a long time before automated TTS technology would replace the produced audio for people that really want it. So the net result of this will probably be to increase the market to sell audio, because people will get themselves into the idea and want better quality.”

But Gershel disagrees. “The time to work out these types of issues, which Amazon and the publishers certainly could, is before the financial damage is done. If the audiobook publishers have learned anything from the music business, it should be that the time to deal with the thorny issues is now.”

The views expressed here are solely those of the author and do not reflect the beliefs of Digital Trends.

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