Real estate listings on the Internet are not in the public domain -- they're copyrighted content, say the three authors of a Content Copyright FAQ for MRIS.

David Charron, president and CEO of MRIS, Erik M. Feig, general counsel to MRIS, and J.T. Westermeier, partner have co-authored an updated version of last year's Guidance Paper, a look at copyright law and it effects online listing content.

According to the Guidance Paper FAQ, listing content is automatically copyrighted by virtue of the fact that it is created content fixed in tangible media (the Internet), but the copyright doesn't automatically belong to the broker.

"If the agent is an independent contractor, then the agent owns the copyrights in the listing content he or she creates, unless the agent's rights are assigned (via a written assignment) to another party, such as the broker," says the FAQ. "However, if the agent is an employee of the broker or if the broker creates the listing content, then the broker owns the copyrights in the listing content."

The FAQ continues, "If an independent photographer (i.e. non-employee) takes a photograph of the property, the photographer owns the copyrights in the photo, unless the photographer's rights are assigned to the party engaging the photographer. If an MLS or service provider creates the content, then the MLS or service provider owns the copyrights in the content it created.

Real estate listings displayed publicly on the Internet are not public domain materials, says the FAQ, they are copyrighted content. The act of digitizing a work or making it available on the Internet does not result in the work becoming part of the public domain, says the FAQ.

What this means to brokers and agents is that you "have to pay attention to and take into account copyright rights whenever you consider using materials that are not your own, and whenever you make available your own -- or someone else's -- materials."

The authors urge copyright owners (brokers?) to:

1. include copyrights in the listing content and include your copyrights in a "comprehensive program with provisions for registration and enforcement."

2. adopt policies that grant users of your copyrighted content the right to use the content for legitimate, enumerated purposes, but that also define the scope of use that is permitted.

3. seek counsel specifically as it relates to your circumstances and your position in the value chain.

The authors cite the example that copyright licenses can be granted for any or all of the exclusive rights, separately or in combination. You can authorize another broker or third party to publish your listing on their website, but if that person exceeds the permitted scope by putting your listing on another site or in another venue you didn't authorize, the scope of the license would be exceeded and that person is guilty of copyright infringement.

With turnabout as fair play, you should also ask permission to use another broker's listing. To use another's work on the Internet means to copy it, no matter how you emphasize it -- "distribute," "transmit," or "reproduce." This dictum also includes others' work you may receive from or through MLS content-sharing feeds.

What about "fair use?"

According to the authors, fair use should meet the following traditional test to gauge copyright infringement:

• the purpose and character of the use

• the nature of the copyrighted work

• the amount and substantiality of the portion used

• the effect of the use upon the potential market for or value of the copyrighted works used

"Generally speaking, it is much more difficult to claim that a commercial or for-profit use of another's copyrighted materials is fair use, compared to use for an educational purpose."

The answer, say the authors, is for brokers and their MLSs to establish a copyright program for listing content to include copyright registration.

"Yes, it will require work by all involved parties. But we strongly believe that use of copyrighted information should be done lawfully and with the complete permission of the copyright owner."

While some portions of the listing are non-protectable facts, such as the sales price, other elements such as list price are copyrightable.

Access the second part of the Paper here.

Published: April 24, 2006

Use of this article without permission is a violation of federal copyright laws.