As I explained in my last post, ownership in the copyrights in the data content in an MLS is 'scattered' in most MLSs:
- The MLS (or perhaps its MLS vendor or both jointly) owns the copyright in the 'compilation.' The MLS may own copyrights in photographs it commissions, if its agreement with the photography contractor provides for an assignment.
- The listing agents own the copyrights in photos they take and remarks that they write. Others, such as agent assistants, third-party photographers, and even home sellers, own copyrights in the images and text they create.
- Listing brokers own copyrights in little or nothing, unless their agents are employees or their independent contractor agreements directly address copyright assignment – most do not.
(Again, this discussion relies on assumptions, most of which I laid out in my last post, but some of which I'll attempt to explain here. Your own organization's issues may be different.)
No copyrights in facts
There is no copyright protection for facts. The fact that 123 Elm Street is for sale is not protected by copyright. Neither is the fact that 123 Elm has three bedrooms. Creative expression relating to facts is protected by copyright, to the extent it includes a "spark of creativity." So copyright protects the MLS remarks of an agent who writes poetry (or even hyperbole) regarding the factual characteristics of a house; but not his statement that "123 Elm has 3 bedrooms."This exclusion of facts from copyright protection goes one step further: If you are trying to get at the facts in a copyright-protected compilation (like an MLS database), it is permissible to make a copy of the copyright-protected compilation, even without the owner's permission, in order to get at the copyright-unprotected facts. In other words, so long as I'm just trying to get at the facts for a lawful purpose, copyright law does not prevent me from copying your whole database. I just need to 'discard' the parts that are subject to your copyright.
Express and implied licenses
As I mentioned in my last post, the transfer of a copyright, an "assignment," can happen only by a writing signed by the transferor. But assignment is not the only way to get the ability to use a copyright-protected work. The owner can also give a "license," which is permission to use the protected work. The "scope" of a license is often limited based on the use expected, a time period, geography, and other factors. For example, the author of a magazine article might grant "first North American serial publication" rights to a magazine; this grant limits the form, geography, and time period of publication by the magazine.A license can be express, that is, the licensor says, "I grant you a license/permission to use my work in the following way." Licenses can be oral – they do not have to be in writing.
A license can also be implied. If your conduct unambiguously implies that you are granting a license, then you cannot later complain that you did not grant the license. So, for example, when a real estate agent allows a photo he took to be uploaded to the MLS, we expect the MLS now has an implied license from that agent to use the photo for the purposes permitted under the MLS's rules and policies. If the MLS copies and distributes the photo throughout the MLS to other brokers and agents, the agent who took it cannot argue this is copyright infringement.
One problem with implied licenses is that their scope is often unclear. By putting the photo in the MLS, is the agent granting a license for the MLS to commercialize the photo in other ways? Can MLS license MLS data including the agent's photo to RPR, First American, or other third parties? Can the agent demand that her photos be excluded from such licensing? In many cases, the answer is unclear.
A second problem with implied licenses is that the licensor can often revoke them. In other words, the implied license lasts only so long as the licensor does not take any action that destroys the unambiguous implication of consent. For example, "I do not consent to my photo being used for X."
-Elizabeth
6 comments:
Well stated Elizabeth.
I guess that I always perceived that the Broker 'owned the listing copyright' in legal terms because of the responsibility and liability they assume for the actions of their agents. It seems that unless that is specifically articulated in the independent contractor agreements - the agent owns the listing copyright.
The last paragraph is rather interesting. It would seem that if an agent does not like the practice of an MLS licensing or selling data to third parties, that they may revoke the implied license to the MLS.
So if the agent is in control of how the listing data is repurposed beyond the scope of MLS practices as stated in NAR Policy, could they, in theory, block the actions of MLSs in syndicating their listing (all-in agreements) or block the MLS from allowing their listing to be sent to a third party like RPR?
OK. So why do I go to the trouble of filing to copyright the MLS database on a quarterly basis?
Debbie, that is required to maintain the MLS's copyright over the compilation.
I think that one of the dangers or threats to your copyright of the compilation is NAR's position on Search Engine Indexing which was recently allowed. It allows search engines like Google and others to index listing information from agent, broker, and mls consumer facing websites. Indexing implies that search engines are storing your compilation on their servers to meet the needs of consumers.
As I see it, that is a copyright violation, but lawyers do not seem to agree. So I guess that I am wrong and there has not been a case before the courts to clarify either opinion. Allowing indexing to me seems to begin a slippery slope that infringes on the MLS's control of participant and subscriber listing information.
Victor, From Elizabeth's post I would conclude that indexing is simply looking at the compilation to get at the "facts" which can't be copyrighted, as i understand it. Is that the case Elizabeth?
Google and other search engines index every component of every listing that is available on the web page, and often goes so far as to store a copy of it.
@Victor and Debbie: With regard to your first issue, Victor, according to NAR policy, the broker is supposed to have the authority to remove her own listings from MLS syndication or prevent MLS from sending her listings to a third party, e.g., to RPR. Whether MLS and vendor agree to those terms permitting opt-out was also a subject of Brian’s February 9, 2010, post, Brokers' rights to control uses of their data and the RPR license agreement. So, the question becomes whether the broker’s consent to use the listings beyond the purpose of the MLS is meaningful if the agent can withdraw her license for certain uses. The answer is unclear. However, one way to make it clear is to have the agents transfer in writing their listing copyrights to the broker or MLS.
Why should MLSs register copyrights in their database compilations? Protecting the compilation copyright provides SOME advantage – don’t forget about the wholesale copying and reproduction of compilations by parties we would traditionally have called “scrapers.” Additionally, MLS can, and often does, enter agreements with its brokers to make it possible for MLS to do the enforcement (more on that in a later post).
In terms of protecting the database compilation and how indexing affects copyrights, Victor, you are also correct that there is little case law to guide us, and the jury is still out, so to speak. First, the indexing does copy more than just the “facts” in the compilation, which are not protected by copyright law. So, how does the indexer get away with copying “protected” information? In a nutshell, the controversy rests on a doctrine of “Fair Use.” Fair use is an exception to the general rule of copyright law, designed to permit creativity and productive output that rigid application of the copyright law might otherwise impede. A court’s fair use analysis is a multi-factor test that depends on the facts of a given case. (See Brian’s detailed post on June 29, 2009, Search engines & IDX Part V: Is search engine indexing legal?) Thus, until a database compilation copyright holder challenges in court whether indexing infringes the copyrighted material, no one knows the exact answer.
We predict with some analysis that the fair use doctrine may prevail in favor of the indexing party. And, if that indexing party happened to be Google, we also predict that the case would be settled before any legal ruling could ensue. Technology simply develops too quickly for copyright law to keep up, and for service providers like Google, their business models very much depend on shaping this area of the law, and therefore they invest heavily in facing these legal challenges head on.
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