President's Perspective

Who Cares if I hit the ball out-of-bounds?

Brad Bennett
President

In today's litigious society, it is paramount for all of us to make certain your legal `house' is in order. Intellectual property rights are becoming a hot topic with the increasing dissemination of data through internet sources.

As applied to our real estate industry, The National Association of REALTORS® (NAR) has defined `Intellectual Property' as "any intangible asset that consists of human knowledge and ideas. Examples of intellectual property include patents, copyrights, trademarks and software."

In addition, "when a copyright owner only transfers some of his or her rights for a limited period of time or a limited purpose, it is generally known as "license" of the copyright. With a license, you temporarily transfer your rights in the copyright to another person, but you retain actual ownership of the copyright. Generally there are two types of license agreements, exclusive and non-exclusive."

So, why is this important to us?
We must protect our data, and obtain license or copyright to use the data in marketing real estate. The failure to do this may result in others using the information to compete with us, and we then have lost our `Intellectual Property' rights.

Recently Larry Metzger and I attended Multiple Listing Meetings and these topics were addressed by Laurie Janik, NAR's General Counsel.

Our Columbus Board of REALTORS® and Multiple Listing Service has often prompted our members to create agreements with property sellers and buyers, as well as, between agents and brokers, consenting to the use of data and photos. These agreements must describe the compiling of data, reproduction, storage, and distribution of that data.

What can you do?
Every member needs to understand and study this issue. NAR has made it quite easy to do this on Realtor.org.

First, go to Realtor.org and click on Law and Policy. Open the Letter of the Law Newsletter (you will have to log on, or if you do not have a user code and password, you can register) and click on "Managing Listing Content Toolkit".

This section (Managing Listing Content Toolkit) describes What, Why, and How. Please open each section and read this thoroughly. After you have read all sections thoroughly, the last section will provide you with sample language to draft agreements in the Listing Agreement, Independent Contractor Agreement, Third-Party Agreement, Participant Agreement, Subscription Agreement, Vendor Agreement, Database Agreement, and Website Agreement.

Once you have addressed these issues you will have created a Chain of Ownership of your listing content. Although this process may seem a bit mundane, I would assure you that it would be very critical were you to be questioned about your authority to use data, or should someone freely use your data.

On another litigious topic, there is a great feeling that consumers relying on erroneous and incorrect MLS data may have a claim against agents and brokers. While our `disclaimer' that we are not responsible for the accuracy might stave off some claims, it would take legal action to protect ourselves. Our error rate in the MLS has diminished dramatically as a direct result of our system of fines -- further proof this process is doing exactly what it was intended to do.

Once again "Broker (and Agent) Beware! Please continue to police your data. Correctness is true professionalism and safety.

Keep up the good work, keep your eye on the ball, and enjoy the game.