When I was preparing my Access 2010 presentation about social sharing and aggregation in library software, I came across Chilifresh, a company that aggregates reviews written by library patrons from across libraries that subscribe to the company's review service. I was a bit disappointed to see that the service almost completely disconnects the reviews from the actual person behind the review; you can see the user's nickname and the general location of the library they're connected to, but beyond that it's a dead-end: there is no way to make a connection to the actual person. They're just a fragment of a person, and it's clear that the reviews are what are considered valuable (which is a validation of Jaron Lanier's concerns in You Are Not a Gadget: A Manifesto).
But the quality of the social connections enabled by the service isn't the concern of this post. I have a legal concern: FAQ number 11, Who owns the reviews? on the Chilifresh site says:
Every review entered from your catalog is the property of both your library system and ChiliFresh Enterprises, Inc. What this means is that if you ever want to discontinue the use of the ChiliFresh Review Engine, we will provide you with a copy of all the reviews that were entered from your catalog. But because the ChiliFresh Review Engine is a collaborative database of reviews, ChiliFresh will retain a copy of your reviews in its database because other library systems are relying on the reviews entered from your catalog.
Umm - no, that's not how content "ownership" works, at least not in North America. The person who wrote the review owns the review, unless they have explicitly agreed to transfer their copyright to the library.
Okay, I can hear the caution now: "But wait, Dan - maybe the user has to agree to a click-through transfer of copyright before they can submit the review!" True, true. As much as I dislike the idea of assigning copyright, instead of a simple license agreement, that's what I assumed, too. However, I've managed to track down a few libraries that uses Chilifresh in the wild. Here's the first policy that I found, in use at a large American public library system:
The FOO library system reserves the right to edit or remove reviews. Reviews may not include profanity, obscenities, spiteful remarks, personal information, URLs or email addresses. Also, you may not reveal crucial plot elements or spoil the ending for others.
A good policy for maintaining the quality of, but certainly not a legal agreement to transfer copyright or even to license the content to be used by Chilifresh Enterprises. I thought that perhaps this was a policy written by the library itself. The second agreement that I found was from a small Canadian public library system:
FOO Public Library reserves the right to edit or remove reviews. Reviews may not include profanity, obscenities, spiteful remarks, personal information, URLs or email addresses. Also, you may not reveal crucial plot elements or spoil the ending for others.
Remarkably consistent with the first, which makes me think that the boilerplate policy actually comes from Chilifresh Enterprises.
Now, there's one more step where users might agree to assign their copyright - when they sign up for an account to write these reviews. Alas, I must report that that avenue fails as well. You can register an account and start writing reviews immediately, with no further license required; you don't even have to be a member of the library to sign up, as you're signing up with Chilifresh, not with the library. (That you're signing up for a Chilifresh account isn't particularly clear either.)
So - in the end, I suspect that any library using Chilifresh is currently in violation of North American copyright. I'm not 100% sure; I am not a lawyer and this does not constitute legal advice, and perhaps there is something that I'm missing. But if not, I strongly recommend that libraries at a minimum change the click-through policy to become a clear transfer of copyright agreement; better still would be for Chilifresh to change to simply having users agree to a Creative Commons license, which would preserve the author's copyright over the review.