MLS Terms of Use Changes and Copyright FAQ

by Victor Lund on March 27, 2018

This post is the result of a collaborative effort amongst the Council of Multiple Listing Services, The Realty Alliance, The National Association of REALTORS®, and Larson Skinner PLLC. 

Many MLSs have been making changes to the way they file copyright applications and their MLS terms of use. Those changes have raised some questions from participants and subscribers. This FAQ is intended to answer some of those questions and emphasize that the MLSs are not forcing participants or subscribers to give up ownership of listing content.

Summary. 

Many MLSs, participants, and subscribers expect the MLS to protect the MLS database. One way of providing protection is through copyright.

For years, MLSs have been filing copyright applications with the U.S. Copyright Office for federal copyright registration of compilation copyright in the MLS database. And for years (decades, actually), the Copyright Office approved those applications.

However, in late summer of last year, the U.S. Copyright Office began issuing requests for clarification of whether the creativity in MLS databases satisfies the federal requirements for copyright protection. Since that time, attorneys with the National Association of REALTORS® (NAR) have been in contact with the Copyright Office to explore what additional information the Copyright Office might accept to show the creativity in MLS databases. You can read more about NAR’s efforts here.

Given recent uncertainty with the U.S. Copyright Office, some MLSs are reassessing their procedures to better position themselves to protect the database on behalf of participants and subscribers. Those MLSs are updating their copyright application strategies and implementing new terms of use that clarify the MLS owns changes to the compilation. Those MLSs are not forcing participants or subscribers to give up ownership of listing content. Instead, those MLSs are positioning themselves to continue registering the compilation copyright (the selection, coordination, and arrangement of content; not the content itself) and changes to it.

What is copyright? What is subject to copyright? What is not subject to copyright? 

Copyright is an intellectual property right that governs a variety of “works of authorship,” such as photos, videos, paintings, software, musical compositions, and many other types of works. The touchstone for something to be subject to copyright is that it must have a “spark” of creativity. The requisite creativity is a low threshold—we’re not talking about the Mona Lisa here.

In the real estate context, copyright applies to components of listings, such as photos, videos, and free form text, like property descriptions. Additionally, there is a compilation copyright in the “selection, coordination, or arrangement” of materials. (The changes MLSs are making focus on the compilation copyright—more on that in a moment.)

Copyright does not apply to processes, ideas, or facts. So, for example, that fact that a house has three bedrooms is not subject to copyright. (Note, those facts might be subject to contractual protections, though).

Why seek copyright protection of the MLS database? 

To help protect the MLS database and the listings in it from unauthorized use. Copyright is one important tool to enable such protection. Working together, MLSs and participants may seek copyright registration as one tool of several to help thwart unauthorized use of the MLS database.

Why are MLSs making changes? 

MLSs are proactively making changes based on the Copyright Office’s requests for information. Many MLSs are revising how they file copyright applications and updating their terms of use. Those MLSs and their participants view MLS protection of the MLS database as a charge of the MLS, so the MLSs are taking steps to implement enhanced practices with regard to copyright. The goal is to resolve any doubts the Copyright Office may have that MLS databases are subject to compilation copyright.

What changes are MLSs making? 

Of course, the changes that any given MLS is making might differ, but many MLSs are seeking to clarify through terms of use (and/or participant and subscriber agreements) that changes to the compilation copyright are part of the MLS’s copyright applications. The MLSs are doing this through either “work for hire” or assignment provisions in the terms of use (and/or participant and subscriber agreements). Those provisions apply to the compilation copyright and the changes to it, or in other words, how the database is selected, coordinated, and arranged.

Doesn’t that mean those MLSs are forcing assignment of listing content? 

No. Those MLSs are not requiring participants and subscribers give the MLS ownership of the listing agreement or listing content, such as photos, free form text, or other media. Again, the MLSs are ensuring that changes to the compilation (the “selection, coordination, and arrangement” of content) vests with the MLS. These changes are hoped to enable the MLS to continue registering the MLS database for federal copyright protection.

Is this permissible?

Yes, NAR policy and legal staff have reviewed these types of changes and found them in compliance with NAR MLS policy. They also anticipate that such changes will help evidence creativity to the Copyright Office.  (Again, we’re speaking in generalities here, so any given instance may vary.)

For those MLSs, participants, and subscribers that want the MLS to take a role in protecting the MLS database, seeking copyright registration is an important tool in that toolbox. Given the Copyright Office’s reassessment of database applications, those same MLSs, participants, and subscribers should consider their copyright process and determine if they can strengthen their position.

Conclusion.

While NAR works on obtaining clear guidance from the Copyright Office and we do not yet know how it will come out, forward thinking MLSs are not sitting still. Those MLSs are taking proactive steps to demonstrate the “creative spark” in the MLS database. Those MLSs and their participants and subscribers have the aim to protect the MLS database through copyright, and in pursuit of that goal many participants and subscribers are seeing changes to their MLS terms of use.

Read the original article here.

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