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Copyright Resources: Update for MLSs

Wednesday, April 18, 2018   (0 Comments)
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Copyright is such an important and unique topic for the MLS industry that the CMLS Legal Section Council has dedicated a whole segment to it in Legal Best Practices. CMLS is an advocate for the industry and tracks important policy topics ongoing. This certainly includes copyright best practices and monitoring of policy changes. One of CMLS’ organizational values is collaboration which means we track industry topics, knowing that implementation of something like copyright practices is different for every MLS based on each MLS’s goals, objectives and participant strategies.

CMLS is providing this update on possible U.S. Copyright Office changes to its database application review process to help members and the industry keep current on this key subject.

Generally speaking, there are two types of components in real estate listings that are subject to copyright:

  • individual content in a listing (including photos, renderings, floor plans, drawings, virtual tours, descriptions and remarks); and
  • overall selection, coordination and arrangement of the content in the database (called the compilation).

Copyright Update: Signs of Change, or Will Things Stay the Same?

While there is currently not any active news to report, some thought leaders in the industry are tracking the Copyright Office. For example, the Copyright Office recently asked for additional clarifications from MLSs that have individually registered to protect their database compilation on behalf of participants.

This request for additional clarifications is causing uncertainty among MLSs with pending applications. Some MLSs have chosen to wait for this issue to be resolved before making any changes to the way they file MLS database copyright applications or their MLS terms of use. Others are being proactive and have taken steps to change their MLS terms of use (and/or participant and subscriber agreements) and the way the MLS files for copyright protection. Others aren’t quite sure what to do. Every MLS needs to work with their own legal counsel in order to determine what is an appropriate business decision for their organization.

Potential Practices for MLSs:

  • Keep current with CMLS Best Practices. The Legal Best Practices guide recommends, “The MLS should file a quarterly registration with the U.S. Copyright Office for the compilation. Registration of the copyright is required before an enforcement lawsuit can be brought.”
  • Align copyright practices with MLS participant/customer service best practices and communications. Participants need to understand any MLS copyright strategies and the terms applicable to participants and subscribers. Ongoing communication helps reinforce key points.
  • Watch for updates in the ‘Industry Advocacy’ section of the CMLS monthly newsletter or in member alerts. Communication is provided when we have significant updates to report.
  • Keep current with Copyright Office ‘grace period’ protection for pending compilation applications. The Copyright Office granted REALTOR® association-owned MLSs a collective extension of copyright protections and a streamlined communication process which will flow from the Copyright Office to the National Association of REALTORS® and from there to association-owned MLSs. Broker-owned MLSs had the option to join the Copyright Office collective extension by indicating in writing to NAR by March 5. For further information, please visit NAR’s Copyright & Trademark page.
  • Some MLSs may choose to anticipate and stay ahead of possible copyright changes. Some ‘early mover’ MLSs are working actively with inside or outside legal counsel, monitoring activities by the Copyright Office and other national players, and proactively updating copyright practices to be ready for possible changes that may emerge in the future. Such proactive changes can be confusing to MLS participants. CMLS has collaborated with industry partners including The Realty Alliance, Larson Skinner, PLLC, and NAR.
  • Keep staff up-to-date on copyright related topics, especially if your MLS is considering changes to practices or user terms.

How is your MLS addressing potential Copyright Office review changes – by continuing to monitor or by being proactive? What questions do you have on this topic? Connect with the Legal Section Council or contact us at info@councilofmls.org or by calling 877-505-8805.