By Ralph Holmen & Marion Hanson
Although technology has made listing data more valuable, it has also made it more vulnerable. And protecting it isn’t easy. To keep data from being stolen, a host of technical and legal hurdles must be overcome—from securing copyright to determining ownership.
Here we’ll explore the legal issues raised by the need to better protect and manage MLS and listing data and take a look at efforts under way for providing better protection.
Online accessibility of listing data for consumers is a great advancement. By attracting visitors to brokers’ Web sites marketing the listings, it creates opportunities to secure new clients. The downside: Easier accessibility also increases the potential for misuse that can negatively impact brokers, consumers, and the industry as a whole.
That’s why it’s important to ensure that all uses of the data be consistent with, and not violate, the ownership or other rights of people who were involved in creating or providing the listing data in the first place.
What Components of Listing Data Are Protectable?
Generally “raw facts,” such as the square footage of a home or the number of bathrooms, are not subject to protection under copyright laws.
But creative work such as photographs, virtual tours, artistic renderings, architectural drawings, descriptive and creative listing remarks, and, some argue, even the listing price, are all considered protectable interests of a listing.
And although these various components are protectable, they may be owned by a number of individuals. For example, salespeople may provide creative textual content describing the property; a seller may have taken and provided photographs to the salesperson; and a videographer may have taken a video to be shown as a virtual tour.
Each of these people owns the copyright in his or her respective contribution to the MLS data, while the MLS may own the copyright in the “collection” or “compilation” of all listings provided to MLS participants. Thus, any person may display these copyrightable elements of the listing only if he or she first obtains the right to do so from the author.
Acquiring these rights isn’t difficult, but it does add a layer of information management that some brokers or MLSs may overlook. Without obtaining all necessary rights to use the various components of the listing data as well as the aggregate of that data, though, controlling the use of content by others can become a problem.
Brokers can secure rights from their agents in the broker-agent agreement, whereby the agent consents to the broker’s broad right to use photos taken or descriptions written by the agent in the course of his association with the broker.
Rights from professional photographers or videographers can be detailed in a license agreement. That license should recite all the various possible uses of the photo contemplated by the broker in marketing the property and authorize the broker to use the photo for the described purposes, during a stated time period.
Although there is some debate over whether the compilation of listing data is copyrightable, the MLS nevertheless should obtain authorization from the broker to use that data in the MLS and make it available for use by other MLS participants (including on IDX or other Internet sites).
Additionally, the MLS should obtain from the broker the right to display and otherwise use other elements of the listing data, such as photos or video tours, in all ways intended. Such authority can be incorporated into the MLS subscriber agreement so that the MLS acquires the necessary right to use the data for all listings the broker submits.
The MLS must also take care to license use of the listing data to participants in a carefully circumscribed manner that permits the intended uses but clearly precludes others. MLSs can do so by incorporating the necessary provisions in their rules or participation agreements.
Finally, when access to listing data is provided to third parties for particular uses that will benefit brokers and MLSs, such use should be authorized by vendor agreements that specifically delineate the authorized uses of the listing information. In addition, both listing brokers and the MLS that make listing data available online should further protect that data from third parties by implementing click-through agreements on their Web sites that prohibit visitors from using the content in any unauthorized manner.
Technology has drastically changed the way real estate professionals do business. Although it has increased efficiency and ease, technology has decreased the control brokers have over their listing content. Though diligence and determination, real estate professionals and the MLS can protect these valuable assets.
To further this objective, NAR is developing an online tool kit that will describe in more detail the rights of various parties to listing and MLS data. The kit also will provide sample documents by which the licenses and other transfers of right can be accomplished.
NAR also is sponsoring an interactive workshop for MLSs on protecting listing content. Designed to provide valuable insight and guidance on identifying and establishing rights in listing data, the workshop, offered in two locations (Hilton Head, S.C. on July 18 and Cooperstown, N.Y. on July 21, both in conjunction with local association events) will discuss content ownership, copyright protection, securing and transferring rights through contract law, as well as the use and validity of click-through agreements on any public Web site containing listing content.
Ralph Holmen is a senior counsel at the National Association of Realtors®. He can be reached at firstname.lastname@example.org.