During the 2016 REALTORS® Legislative Meetings & Trade Expo, the Multiple Listing Issues and Policies Committee and the NAR Board of Directors adopted changes to MLS Policy Statement 7.85 – Ownership of Listing and Listing Content, to further educate and protect REALTORS® and MLSs from possible copyright infringement liability.
Effective immediately, these changes (shown below) emphasize the importance of participants obtaining and transferring the necessary licenses for MLS content provided as part of a listing. (underscoring indicates additions; strikeouts indicate deletions)
Statement 7.85 – Ownership of Listing and Listing Content
The listing broker owns the listing agreement. Prior to submitting a listing to the MLS, the listing broker should own, or have the authority to
causelicense all listing content (e.g., photographs, images, graphics, audio and video recordings, virtual tours, drawings, descriptions, remarks, narratives, pricing information, and other details or information related to listed property) to be published in the MLS compilation of listing information.
Use of listings and listing information by MLSs for purposes other than the defined purposes of MLS requires participants’ consent. Such consent cannot be required as a condition of obtaining or maintaining MLS participatory rights. MLSs may presume such consent provided that listing brokers are given adequate prior notice of any intended use unrelated to the defined purpose of MLS, and given the opportunity to affirmatively withhold consent for that use.
Participants cannot be required to transfer
anyownership rights (including intellectual property rights) in their listings or listing content to MLS to obtain or maintain participatory rights except that MLSs may require participants to consent togrant the licenses necessary for storage, reproduction, compiling, and distribution of listings and listing information to the extent necessary to fulfill the defined purposes of MLS. MLSs may also require participants to warrant that they have the rights in submitted information necessary to grant these rights to MLS. (Adopted 5/05, Amended 5/06) M
Frequently Asked Questions About the Revisions
Q1: Do these revisions require adoption of specific local MLS rules?
A1: No. The revisions to MLS Policy Statement 7.85 do not require revisions to local MLS rules, nor do they require revisions to the NAR Model MLS Rules and Regulations.
Q2: Because of the immediate effective date, are MLSs required to adopt and/or implement the revisions to MLS Policy Statement 7.85 within 60 days from the approval date by the NAR Board of Director?
A2: No. The revisions to MLS Policy Statement 7.85 are educational in nature, emphasizing the importance of participants granting the necessary license(s) to the MLS.
Q2.1: Why were the revisions to MLS Policy Statement 7.85 adopted with an immediate effective date?
A2.1: To stress the importance of obtaining and providing the necessary licenses for all listing content provided to the MLS. A misunderstanding about how brokers and the MLS can use the MLS listing content, including photographs, can lead to possible copyright infringement claims.
Q3: Can MLSs use the authority established in MLS Policy Statement 7.85 to adopt locally developed rules and/or other locally created initiatives to ensure that brokers have received the necessary license(s) to submit listing information, including photos, to the MLS?
A3: Yes. MLS Policy Statement 7.85 authorizes MLSs to establish local rules, at the MLS’s discretion, that require participants to grant licenses for storage, reproduction, compiling and distribution of listings and listing information to the extent necessary to fulfill the defined purpose of MLS. The MLS can also take additional steps to ensure that brokers have received the appropriate license(s) for information filed with the service, such as requiring participants to confirm through a “pop-up” window or message that the necessary license(s) have been obtained at the time the broker files photos or other MLS listing content. MLSs can further reaffirm this obligation in the MLS’s Participation/Subscriber Agreements.
Q4: Do the revisions to MLS Policy Statement 7.85, replace or reduce the protections afforded by the Safe Harbor Provisions of Digital Millennium Copyright Act (“DMCA”)?
A4: No. The DMCA Safe Harbor provisions are an effective protection against copyright infringement liability when hosting an IDX display.
For additional information and resources about copyrights, property photos, the DMCA Safe Harbor Provisions, and more, visit NAR’s Copyright topic page.