The Drama of Audio Rights

With the Authors Guild getting angry at Amazon's Kindle 2 for read-aloud technology (see their statement), many readers (and writers like Neil Gaiman) are wondering how a robotic-sounding voice reading is an infringement on the rights of a published book. And if that's an issue that requires prevention, then why haven't other non-professional readings been restricted (like when you read a bedtime story to your kids), and could they be in the future? And what about the sight-disabled readers and their legal right to access text in this manner?

I seriously doubt the Authors Guild is going to sue moms for reading Dr. Seuss, or sue the blind, or sue publishers for allowing that to occur. What's of concern is who's making money from the added value of the reading performance, whether it's a digital voice or not, and the Authors Guild is trying to make sure that a line is drawn in the sand now before an income stream (audio "performance" rights) dries up, because new technology often gives distributors a chance to make extra money before the author realizes how valuable it is.

Decades ago, audio rights were pretty unpopular. They were sorted into many publishers' contracts as ancillary, or completely left out - that is to say, unless it looked profitable for more than just rare radio adaptations. (No one really even tried to distribute novels performed and recorded to LP records–who wanted to flip a record every 30 minutes for a ten hour reading?) What changed all this was the age of the cassette tape: car radios with cassette players and the Sony Walkman. With the new convenient medium that lent itself well to long listening sessions, there was a new market. And publishers eventually started making extra money from the potentially lucrative books-on-tape edition of their texts, often without having paid authors any additional advance for the audio rights. This was good gravy for the publishers when the audiobook was a hit, even though the books-on-tape market was relatively tiny compared to book sales. By the time that CD technology increased the quality and cost efficiency per unit further, authors and agents already knew it was worthwhile to negotiate better terms and payments for the audio rights, to make sure that this commodity was now compensating everyone properly. In some cases, the rights were starting to be reserved by the agents so that they could be sold to the growing field of specialty audiobook publishers. In the last 8 years, MP3 file distribution of these recordings (especially through iTunes or Audible) has only made the market more competitive. So, unlike 40 years ago, today everyone is aware that the audio rights can make money when handled properly.

The primary distinction of the audio rights is not so much that a real human voice is involved and compensated; it's more that a publisher consented reading or "performance" of the book has controlled distribution (each copy is accounted for), and that the proportionate value of this performance makes money for the publisher and author. This is why parents reading to their kids isn't an issue, or even teachers reading in a classroom. In those cases, the average reader is adding a negligable value (commercially speaking) to the book by speaking it aloud themselves, and that's fair use. Now if that reader wants to go on stage (or the web) and sell their reading performance without publisher consent, it's another story.

With computer assisted reading, the value added is a bit more contentious. First of all, there are disabled readers who require text to be spoken aloud, and digital voice reading is a welcome technology for them. This service is valuable to those people, sometimes at a premium. However, the typical expectation is that disabled readers are adding the value themselves through assistant technology, and that they haven't paid inclusively for that assistance when they purchased the text. For example, you don't pay an additional $1 for read-aloud service offered to you from the book you've bought. You paid $357 for the Kindle 2, which adds that service to the book.

The cost of the digital voice application is a moot point to publishers, agents, and authors. What worries them is that in the future the voice applications are going dramatize the text too well, and that the additional exceptional value isn't compensated to them in any way under current contracts. Amazon's Kindle 2 was developed with the read-aloud function to add value not only to the Kindle, but to make the books themselves a better commodity–to sell more books.

Picture the future, when you've got an e-book of the latest bestseller and you ask your little e-book device to read it to you. Right in front of you pops up a digital hologram of John Houseman (licensed to the device by the actor's estate), and he proceeds to read the book to you in his nuanced dramatic voice (recreated through excellent programming). He reads Chapter 4 to you while you prepare dinner in the kitchen. He sits in the passenger seat, delivering chapter 14 as you commute to work the next day. This is essentially the benefit of read-aloud, although the Kindle 2 or Apple's Text-To-Speech isn't quite that far advanced yet. However, I'm sure you can see that a good digital voice has the future potential to add a lot of value to the reading, enough to give today's properly recorded audio books something to worry about.

The issue is that this value added isn't accounted for in current distribution contracts between the publisher and e-book retailers like Amazon, and potential publisher revenue might be getting lost (or cheated away from the future), and that's what rankles the Authors Guild. I'm not a fan of sword waiving tactics, but there needs to be new descriptive contract language that pertains to the read-aloud service. I'm not sure how accounting for the read-aloud service in financial terms can be done until there's a proven track record for consumer habits with this technology. Those numbers aren't available yet. But Amazon and other companies are investing in the technology more and more, so someone sees there's money to be made there in the future.

In many ways, it's an issue not unlike protecting song performance rights so that companies like YouTube can't make money off "free" performances of copyrighted material. (I'm not sure an amateur 8 year-old singing Miley Cyrus songs for YouTube has much value, but aggregate all the entertainment from thousands of such videos and it starts to paint a different picture until it appears obvious the songwriter is due some small increment of YouTube's revenue from distributing those clips.) Publishers don't want to chase after innocent people, but they also don't want to encourage wholesale ripoffs with loose legal terms. So maybe it isn't a bad idea to start new discussions with all the major players now about the audio rights for e-books and bring the agenda to Amazon's Jeff Bezos or a company like Google. I'm looking forward to having David Niven read me Sherlock Holmes stories on my Kindle 4 and I'd hate for anything to stand in the way.

- Michael Gaudet