The Audible Captions Litigation

Some readers may have been following the litigation involving Audible’s “Captions” program: a plan to scroll written text on device screens as customers listen to audio-recordings of books they’ve downloaded from the service. Audible has been sued by the Association of American Publishers (AAP) and a group of book publishers for copyright infringement.

The publishers have argued that Audible is only licensed to provide audio content versions of the books, and that the inclusion of the on-screen text is an infringement of copyright in relation to the text. Generally, text copyrights in books are held by authors and/or publishers depending on the context. However, where authors hold the copyrights, their publication contracts typically give their publishers the option to bring legal claims to protect those rights.

Copyrights can be difficult to understand in practice because the person who holds copyright in a work—for example, the text of a book—actually has a whole bundle of rights that are set out in the copyright act and can be further divided up by contract. The rights include rights to control reproduction/copying of the work, public distribution of the work, public display of the work, and, making “derivative works” which includes presenting the works in different formats (e.g. audio, television/film, graphic novel, translation, etc.) and creating new works closely developed from the original (e.g. prequels, sequels, fanfiction/retellings, and even merchandising).

When you enter into a publishing contract, it will specify which of those rights you’re giving to the publisher, and which you may be keeping for yourself. The publisher can then either commercially exploit those rights itself or, typically under many contracts, permit other companies to do so. For example, your publisher may produce physical books and e-books based on your work and license another company to produce a graphic novel (assuming you gave all those rights to the publisher in your original contract).

In a case where a publisher holds the rights to produce text-based books, and another company (like Audible) holds the rights to make audiobooks—whether under license from the publisher or from the author—issues like the Audible Captions situation can arise. The publishers are saying that they hold all rights in distributing text-based versions of the works which prevents Audible from including any text along with audio versions of the books. Audible, on the other hand, claims that the scrolling text snippets are a fair use. I’ve discussed fair use elsewhere because that’s a whole ‘nother challenging topic in itself.

The trouble for companies that publish or produce versions of your work is that in the digital world, there are always new ways to present work and the existing contract arrangements aren’t necessarily clear. Additionally, the contours of the fair use defense are also not typically very clear either. Without weighing in on one side or the other of the Audible situation, it’s an interesting case for authors concerned with contracts controlling who produces their work in which formats, and the kinds of battles that can arise after an initial publishing contract has been signed.

When you sign a publishing contract, it is important to be clear about: (a) what rights you’re granting to the publisher under the contract; and, (b) what rights you’re giving the publisher to sue others over their rights—and potentially yours, too—in the work.