Amazon’s new e-book reader, the Kindle 2, is sending the internet’s electrons into a tizz: apparently, once you load an electronic book into it, you can select a text to speech function which reads the book out loud to you.
The Authors’ Guild claims this is an exercise of the “derivative right” or something under US law; not covered by the publishing agreement and so an infringement. Better analysis here and here.
Now, I don’t think the Kindle 2 is available here (the Kindle “1” never made it either), but my computer can do this text to speech thing too. Should I be worried?
(Of course, we’ll ignore how I got the @#$! e-book into my computer – I mean, for the purposes of this exercise we’ll assume I could get it on my computer on the same terms as Amazon sends it out to Kindlers.)
So, presumably, the file constituting the e-book has to be run through some sort of converter to get those little “1”s and “0”s into sounds. Is that making a translation (see the adaptationright conferred by s 31(1)(a)(vi) (and see para. (c) of “adaptation“) or may be just a straight reproduction (see s 21(1A))?
Hmm, but wouldn’t getting the digital file on my computer displayed on the screen also involve a sort of translation or reproduction? So, maybe there’s an implied licence to do something like this. That could of course be “bad” as the copyright owner might then include something in the terms and conditions I downloaded (or will in the future download) that excludes this.
A-ha! I hear you say, there’s that nice defence provided by s 47B for the normal use of a computer program and, even better, it can’t be excluded by contract (see s 47H).
This is looking good so far. But what’s that you say, it only covers “reproduction”. Would that cover “adaptation” too?
Look at the extended definition of computer program for the purposes of Part III Div 4A provided by s 47AB. I wonder if the “book” part of the product (the thing I read or am trying to listen to) is essential to the operation of a function of the program; it’s certainly essential to the reason why I bought (or no doubt the EULA will say “licensed”) the e-book in the first place.
The EULA probably says all disputes about the EULA are governed by the laws (excluding the conflicts of laws laws) of the State of {some place in Obamaland}. I wonder if the courts over there will accept s 47H can override the written terms of the EULA? That’s OK, may be I just won’t travel there anymore. Or maybe I can hope their courts will interpret their “fair use” provision like they did in the Connectix case.
Good thing we’ve got these nice defences isn’t it? May be we should head over to Nic.Suzor and find out what the EFA told the (definitely not Orwellian sounding) DBCDE here.
May be I could fall back on the problems Sony had proving that the small part of the file streamed through the buffer (or is that buffered through something?) is a “substantial part”.
But, wait, there’s more. It’s (hypothetically) speaking the thing aloud. Is that a performance in public? Unless you’re all peering over my should, perhaps we can argue that it’s not. Afterall, no-one has seriously argued that reading a book aloud to yourself is a performance in public. cases do have that troubling bit about “public” means “part of the copyright owner’s public”, but would that be distinguishable on the basis that there is no employment or business context? As Dawson and Gaudron JJ said in
Telstra v APRA:
The distinction between what is “in public” and what is “in private” is of little assistance in determining what is meant by transmission “to the public”. The transmission may be to individuals in private circumstances but nevertheless be to the public. Moreover, the fact that at any one time the number of persons to whom the transmission is made may be small does not mean that the transmission is not to the public. Nor does it matter that those persons in a position to receive the transmission form only a part of the public, though it is no doubt necessary that the facility be available to those members of the public who choose to avail themselves of it. In Rank Film Production Ltd v Colin S Dodds the number of guests playing films in their rooms may not have been large, but the motel was open to the paying public. Similarly, those members of the public who choose to call a relevant number on their mobile telephone may be relatively small, but the facility is available to members of the public generally.
What is important is the nature of the audience constituted by those who receive music on hold. Lying behind the concept of the copyright owner’s public is recognition of the fact that where a work is performed in a commercial setting, the occasion is unlikely to be private or domestic and the audience is more appropriately to be seen as a section of the public. It is in a commercial setting that an unauthorised performance will ordinarily be to the financial disadvantage of the owner’s copyright in a work because it is in such a setting that the owner is entitled to expect payment for the work’s authorised performance. In this case it is not so much the preparedness of the audience of music on hold to pay to hear the works were it not for their unauthorised performance that is significant. That simple analysis belongs to an age where communications were less technologically advanced and business and marketing techniques were less developed. Rather, it is the preparedness of those who wish the music on hold to be played to bear the cost of the arrangement which provides the key, for it reveals the commercial character of the broadcast and the commercial deprivation suffered by the copyright owner. Callers on hold constitute the copyright owner’s public, not because they themselves would be prepared to pay to hear the music, but because others are prepared to bear the cost of them having that facility. For the performance of the music to that audience the copyright owner would expect to receive payment, even if not from the members of the audience. ….
Good thing we cleared that up, then!
