Copyright Office Review of MLS Automated Database Copyright Applications

For decades, many MLSs have obtained automated database copyright registrations protecting the arrangement, selection, and coordination of their MLS compilations. For those MLSs that own the underlying copyrightable components of the database, such as photographs and text, the scope of the copyright protection extends to those component works. It appears that many MLSs obtain ownership of all listing content, and this type of copyright registration is effective in protecting against a third party’s unauthorized use of the listing content. 
  
Recently, the Copyright Office has issued requests for clarification to hundreds of MLSs regarding their MLS database copyright registration applications. The Office asserts that the applications do not demonstrate sufficient creativity in the arrangement, selection, or coordination of the compilation. This response is viewed as a major sea change for MLSs who’ve been granted this type of copyright protection for decades. 
  
NAR Senior Counsel Chloe Hecht and Senior Technology Policy Representative Melanie Wyne met in person with representatives from the Copyright Office to discuss their position and how it may affect MLSs. Chloe and Melanie have maintained cooperation with the Office and were able to secure a grace period during which the Copyright Office will not take any adverse action on pending applications, including those applications where the applicant has already replied to the request for clarification. This grace period is intended to allow NAR and our members time to assess the situation and determine the best plan of action for addressing it. 
  
Update: The Copyright Office confirmed that the grace period will include compilation applications where the applicant has already replied to a request for clarification.
  
A condition of the grace period required by the Copyright Office, but not requested by NAR, is that all communications during the grace period be channeled through NAR. Direct communication with the Copyright Office, or complaints about the Copyright Office submitted to a third-party entity, will waive the grace period for that applicant. 
  
NAR hosted an informational webinar on Friday, September 8th, reporting on these developments. NAR Legal Affairs aims to convene a small workgroup consisting of MLS executives, brokers, and attorneys wanting to brainstorm the general proposition of the best possible legal strategy for protecting listing content. In the meantime, please feel free to send any questions to Chloe Hecht at checht@realtors.org

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