Commercial MLS

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GENERAL FAQs

What is it?
The CATRS Commercial MLS is a system for members of the Tallahassee Board of REALTORS® to share commercial properties for sale and lease and offer compensation with other Participants and subscribers.

Who can join?
Office brokers are required to Participate in order for their agents to subscribe. Members of the Tallahassee Board of REALTORS® and other brokers and salespersons may join.

Will there be a public-facing website?
Yes, listings in the system will be on a website available for public search.

Who developed the product?
The product is developed by Catylist, https://www.catylist.com. The web address for the CATRS Commercial MLS is www.TACMLS.com

When will it be available?
The official launch date is February 1, 2018. If completed prior to 2/1/2018, member access will be available.

How much is it?
The subscription for Tallahassee Board of REALTORS® members will be $360 for six-months per Participant/subscriber, beginning March 1, 2018. For non-TBR members, the six-month subscription fee is $420. The fees are subject to change for any subsequent six-month period. Fees are prorated when agents subscribe; however, once paid, fees are nonrefundable.

Will the commercial class still be available in Paragon?
There are no immediate plans to delete the commercial class in the Paragon MLS.

How do I get started?
For brokers, simply complete and sign the  pdf CATRS Commercial MLS Participant Agreement (93 KB) and your access will be activated. For agents and assistants who wish to have access, make sure your broker has completed the pdf CATRS Commercial MLS Participant Agreement (93 KB) , then complete and sign the pdf CATRS Commercial MLS Subscriber Agreement (83 KB) . There will be no fees for access prior to March 1, 2018; however, anyone who has not paid for the service by February 28, 2018 will be made inactive. If the broker has not paid by 2/28/2018, everyone else in that office will be made inactive.

How will the MLS be governed?
A committee of commercial brokers will determine the rules and regulations for the service.

How can I learn more? Is there a webinar I can attend?
Currently, there are two free webinars scheduled:
Monday, January 22 at 2 p.m. EST: https://attendee.gotowebinar.com/register/8038440838402325506
Friday, January 26 at 10 a.m. EST: https://attendee.gotowebinar.com/register/1849275592000203778 

BROKER COPYRIGHT FAQs

CATRS will be implementing new pdf Participant (93 KB) and pdf Subscriber Agreements (83 KB) with its MLS participant and subscribers. These agreements, along with the MLS rules and policies, will govern the relationship between the MLS and its participants and subscribers. The Participant Agreement provides brokers with the option to assign its copyrights to the MLS. The following FAQs are not legal advice, and if you do not understand the Participant Agreement you should seek the advice of your legal counsel.

1. Why do I need to copyright my listing content?

Copyright law protects the authors of creative works from others (called “copyright infringers” or just “infringers”) who would use those works without the authors’ permission. Prompt registration of copyright with the United States Copyright Office is required in order to get attorney fees and a special kind of damages against infringers. Registration is also a prerequisite to suing an infringer.

2. Who currently retains ownership of listing copyrights?

In the absence of written agreements to the contrary, the owner of the copyright in a photo or in original text is the author – the human being who created it, in most cases, the agent or assistant who wrote the text or snapped the photo. If an employee (not an independent contractor) creates a work within the scope of her employment, then the employer is the author. (This is not as common in the real estate industry as other industries, because most real estate agents and many assistants, etc., are independent contractors.)

If someone owns a copyright and allows someone else to use it, the owner is said to be “licensing” the copyright. Just because an agent submits the photo to her broker does not mean she transfers ownership to her broker. Just because a photographer takes a photo for an agent and permits the agent to put it on MLS does not mean that the photographer has given up his or her copyrights. Instead, they are licensing their rights to be used for particular purposes.

3. Which portion of the listing is copyright-protected?

Copyright protects anything that is the result of a creative process, including original text (like remarks) and perhaps even the listing price; photographs, whether taken with digital or traditional equipment; virtual tours (though the creators of tours often retain their copyrights); and any other creative text and graphic materials.

Facts cannot be copyright-protected; the facts that the home on 123 Elm Street is for sale and that it has three bedrooms and encompasses approximately 2,100 square feet are not subject to copyright protection. (Copyright also does not relate to product or service names; designations of the origins of products and services, including product names and logos, are the subject of trademark law, something completely different.)

4. What are the two intellectual property options under Section 21 of the Participant Agreement?

Option I is assignment of your copyrights to CATRS. CATRS can register all the works in the MLS database, and CATRS can take steps to sue anyone who infringes the copyrights in the MLS data. For brokers and agents to do this individually would cost a great deal more, and it would entail efforts that many brokers and agents may not want to exert.

To achieve these objectives, CATRS must obtain ownership of the copyrights in the materials it will register and enforce, which is the Option I selection. If a broker selects Option I, they permit CATRS to acquire the copyrights in data content relating to their listings and agents in their offices. In return, CATRS promises in its agreement with the broker (the Participant Agreement) to (1) obtain copyrights from the brokers’ agents; (2) register the copyrights; (3) take reasonable actions to prevent and pursue infringement; (4) grant back to the listing broker rights to use data relating to the broker’s own listings; and (5) refrain from distributing the broker’s listing data (except for core MLS purposes) unless MLS has the broker’s consent.

For brokers that do not want to assign ownership of its copyright to CATRS, Brokers can select Option II. From these brokers and the agents in their offices, CATRS obtains only a license to use the copyright-protected content for core MLS purposes. If a broker selects Option II, then that broker will be responsible for negotiating with their own agents regarding copyright ownership; they will be responsible for their own copyright registrations and for preventing third parties from making unauthorized use of the brokers’ listing data.

The CATRS board of directors has determined, that using Options I and II in the Participant Agreement and allowing brokers to decide whether to have CATRS register and enforce their copyrights is the most cost-effective way to prevent misuse of data relating to brokers’ listings.

5. Would granting copyrights to MLS work against my fiduciary responsibility to my seller/client?

CATRS cannot give you legal advice about your fiduciary duties. CATRS’s attorneys believe, however, that copyright protects agents themselves and their customers from the predations of those who take listing data without permission. Sometimes, agent and seller interests may be at odds. For example, imagine an agent takes a set of particularly fine photos of her listing in June, but the house does not sell before the listing expires; imagine that the seller lists with another broker in November, but wants the ‘summer’ pictures from the first agent on MLS. Under copyright law, the first agent must consent before the second broker or seller can use her photos. If the seller claimed the first agent had an agency/fiduciary duty to allow the seller to reuse the pictures, CATRS would direct the first agent to her own attorney for counsel.

6. Would copyrighting restrict activity in the market and violate Federal antitrust laws?

Generally, copyrights do not pose antitrust problems. In fact, a copyright is a sort of state-sponsored monopoly; an exception to the antitrust laws’ view that monopolies are generally bad. Copyrights can be misused so as to bring about an antitrust violation, but such misuses are unlikely in the MLS/brokerage context.

7. What would the cost be to me?

Regardless of your selection of Option I or Option II, the cost is included in your MLS fees. CATRS does not anticipate the need to increase fees in order to pay for its copyright project.

8. Do NAR and Florida REALTORS® have a position on copyrighting? Do we need their approval for any new documents we are utilizing?

NAR and Florida REALTORS® have encouraged the registration of copyrights in MLS databases. Under NAR policy, CATRS cannot require brokers to transfer any intellectual property rights to MLS. Consequently, CATRS’s copyright project is optional for brokers. NAR reviews mandatory documents of MLSs affiliated with it; the proposed Participant and Subscriber Agreements are very similar to ones that NAR has previously approved. Florida REALTORS® does not maintain MLS policies that are binding on CATRS.

9. Can CATRS release/sell our data without permission from the Participants?

No. The proposed Participant Agreement between CATRS and the Participants ensures that Participants can opt out of any ‘non-core’ use of the MLS data that CATRS considers. Non-core uses include any distribution to non-Participants (like consumers or other businesses).

10. As a broker, will I retain my right to give third-party entities the right to use my listing data? Will there be any restrictions?

The proposed Participant Agreement ensures that the listing broker has an unrestricted right to use content relating to her own listings, including licensing them for use by third parties (and even including the right to allow the third parties to license to other third parties). MLS commits in the proposed Participant Agreements to support the brokers’ use of their own listing content.

11. Will there need to be a separate agreement between broker and agent? Can the broker incorporate the language into their Independent Contractor Agreement or will it need to be a separate document?

The proposed Participant and Subscriber agreements ensure that brokers participating in CATRS's copyright program obtain all the rights they will need from their agents without the need for separate agreements relating to copyright between brokers and agents. Nevertheless, the brokers can choose to address copyrights from their independent contractor agreements.

Brokers not participating in CATRS's copyright program may wish to obtain copyright assignments from their agents, but that would be subject to negotiation between brokers and agents.

12. What if the broker opts to copyright their listing data and one of their agents does not want to agree to copyright?

CATRS takes care of this issue with regard to brokers who participate in CATRS's copyright project. It obtains assignments from the agents and grants the appropriate rights to the broker. If the broker does not participate in CATRS's copyright project, the broker will have to negotiate copyright matters with each of its agents.

13. How will this impact an individual agent? Will they lose all rights to their photos and text?

If a broker takes part in CATRS's copyright project, CATRS takes copyright ownership in the listing content each of the broker's agents submits to the service. The listing broker, though not the owner of the copyrights, has a license from CATRS to use that content any way the listing broker wishes. Individual agents can negotiate in their independent contractor agreements with the brokers the right to continue using listing content they supply under particular circumstances. As for brokers that do not participate in CATRS's copyright project, their agents continue to hold copyrights in works they create unless their independent contractor agreements with their brokers provide otherwise.

14. If an agent moves their license to another real estate company will they have the ability to take their data, assuming that the previous broker has given them permission.

The agent can use data from her listings at her previous company in any way her previous broker permits. Without the previous broker's permission, the agent would not be able to use data from her listings at the previous company. If she re-listed one of the same properties, she would have to take new pictures and write new remarks text.

15. How is the copyright initiative handled if an agent contracts with a professional photographer who already copyrights their photos?

Unless the agent has a written agreement with the photographer that transfers the copyrights from the photographer, the photographer continues to won the copyrights. The agent has only a license to use it for the purposes the photographer permits. The CATRS copyright project does not change these circumstances because the agent cannot transfer to CATRS a copyright that the agent does not own.

16. What if the seller does not agree to the copyright terms?

Sellers generally do not contribute copyright-protected material for inclusion in MLS. To the extent that the seller has taken a picture or drafted remarks for the MLS, the seller would be treated like the photographer in the previous question. CATRS does not require brokers or sellers to enter listing agreements or other agreements where the seller must transfer ownership of copyrights to the listing broker or to CATRS. If a broker wishes to obtain copyrights from the seller, the broker should negotiate those terms with the seller. CATRS does require that the listing broker (and the seller and any photographers from whom the listing broker obtains copyright-protected work) have the rights necessary to provide the materials to MLS. Thus, if MLS were sued because a broker submitted someone's copyright-protected work without permission, the proposed Participant Agreement would require the infringing broker to pay MLS's defense costs.

AGENT COPYRIGHT FAQs

1. What is the new subscriber agreement from CATRS?

CATRS is implementing a new subscriber agreement that each agent accessing CATRS’s system must accept in order to have access. The subscriber agreement clarifies the role of agents in CATRS and sets expectations about how you can use MLS data, and how CATRS and other brokers can use your broker’s listings. The subscriber agreement is a binding legal agreement, and if you have questions about it, you should consult your own attorney. The views expressed in this frequently asked questions document are those of CATRS and its attorneys.

2. What is the language in section 16 relating to “intellectual property” about?

CATRS has undertaken an effort to secure the copyrights in the MLS listing data in order to prevent unauthorized persons from using brokers’ listing data for their own benefit. These “data pirates” or “copyright infringers” seek to capitalize on brokers’ listings without listing broker permission. 

Part of that effort was a new set of participant agreements that all CATRS brokers had to sign. In the participant agreement, each broker had the option of (I) assigning copyrights to CATRS so that CATRS could take certain actions to protect the MLS data or (II) not assigning copyrights to CATRS, leaving the broker to fend for itself in protecting listing copyrights. 

If your broker chose Option I, then you will be assigning any copyrights you might have in listing data to CATRS, which will then grant rights back to your broker and you to permit you to perform all the marketing activities you currently perform. If your broker chose Option II, you will retain any copyrights you might have in listing data, but you will give a license to CATRS to use it consistently with CATRS’s policies. Your independent contractor agreement with your broker may also address copyright ownership or license issues.

3. Why is CATRS seeking to copyright-protect the MLS database? What are the current concerns and advantages? 

Copyright law protects the authors of creative works from copyright infringers and data pirates who would use those works without the authors’ permission. Prompt registration of copyright with the United States Copyright Office is required in order to get attorney fees and a special kind of damages against infringers. Registration is also a prerequisite to suing an infringer. Under CATRS’s copyright project, CATRS can register all the works in the MLS database for a few hundred dollars a year, and CATRS can take steps to sue anyone who infringes the copyrights in the MLS data. For brokers and agents to do this individually would cost a great deal more, and it would entail efforts that many brokers and agents may not want to exert. 

To achieve these objectives, CATRS must obtain ownership of the copyrights in the materials it will register and enforce. CATRS has thus created an optional program where listing brokers get to decide whether to have CATRS register and enforce their copyrights. Brokers who chose Option I in their participant agreements with CATRS permit CATRS to acquire the copyrights in data content relating to their listings. In return, CATRS will (1) obtain copyrights from the brokers’ agents; (2) register the copyrights; (3) take reasonable actions to prevent and pursue infringement; (4) grant back to the listing broker a license to use data relating to the broker’s own listings; and (5) refrain from distributing the broker’s listing data (except for core MLS purposes) unless MLS has the broker’s consent. 

Brokers who prefer not to take part can opt out. Those brokers choose Option II in their participation agreements with CATRS. They can negotiate with their own agents regarding copyright ownership; they will be responsible for their own copyright registrations and for preventing third parties from making unauthorized use of their listing data. From these brokers and the agents in their offices, CATRS obtains only a license to use the copyright-protected content for core MLS purposes. 

The CATRS board of directors has determined, that this approach is the most cost-effective way to prevent misuse of data relating to brokers’ listings.

4. Which portion of the listing is copyright-protected? 

Copyright protects anything that is the result of a creative process, including original text (like remarks) and perhaps even the listing price; photographs, whether taken with digital or traditional equipment; virtual tours (though the creators of tours often retain their copyrights); and any other creative text and graphic materials. 

Facts cannot be copyright-protected; the facts that the home on 123 Elm Street is for sale and that it has three bedrooms and encompasses approximately 2,100 square feet are not subject to copyright protection. (Copyright also does not relate to product or service names; designations of the origins of products and services, including product names and logos, are the subject of trademark law, something completely different.)

5. Would granting copyrights to MLS work against my fiduciary responsibility to my seller/client? 

CATRS will not give you legal advice about your fiduciary duties. CATRS believes, however, that copyright protects agents themselves and their customers from the predations of those who take listing data without permission. Sometimes, agent and seller interests may be at odds. For example, imagine an agent takes a set of particularly fine photos of her listing in June, but the house does not sell before the listing expires; imagine that the seller lists with another broker in November, but wants the ‘summer’ pictures from the first agent on MLS. Under copyright law, the first agent or her broker must consent before the second broker or seller can use her photos. If the seller claimed the first agent had an agency/fiduciary duty to allow the seller to reuse the pictures, CATRS would direct the first agent to her own attorney for counsel.

6. How can this benefit my business? 

It prevents other folks taking your firm’s work and profiting from it without your broker’s permission.

7. What is the cost to me?

The cost is included in your MLS fees. CATRS does not anticipate the need to increase dues or charge any additional fees in order to pay for its copyright project.

8. Can CATRS release/sell our listing data without permission from the brokers?

No. The agreement between CATRS and the brokers ensures that brokers can opt out of any ‘non-core’ use of the MLS data that CATRS considers. Non-core uses include any distribution to persons not participating in MLS (like consumers or other businesses).

9. As an agent, will I have the ability to give third party entities the right to use my listing data?  Will there be any restrictions?

The listing broker has an unrestricted right to use content relating to her own listings, including licensing them for use by third parties (and even including the right to allow the third parties to license to other third parties). MLS commits in the proposed agreements to support the brokers’ use of their own listing content. The extent to which agents may use listing data is determined in the agreements between brokers and agents.

10. Will there need to be a separate agreement between broker and agent?

The documents CATRS has adopted ensure that brokers participating in CATRS’s copyright program obtain all the rights they will need from their agents without the need for separate agreements relating to copyright between brokers and agents. Nevertheless, the brokers can choose to address copyrights in their independent contractor agreements, and CATRS has prepared language brokers can consider incorporating into independent contractor agreements.

Brokers not participating in CATRS’s copyright program may wish to obtain copyright assignments from their agents, but that would be subject to negotiation between brokers and agents.

11. What if the broker agrees to have CATRS manage copyrights of her data but one of her agents does not want to agree to assign copyrights in the subscriber agreement to CATRS?

If a broker opts to have CATRS manage copyright registration and enforcement under the participant agreement between CATRS and the broker, then agents affiliated with that broker have no choice but to assign their copyrights to CATRS under the subscriber agreement. If the broker does not participate in CATRS’s copyright project, the broker will have to negotiate copyright matters with each of its agents.

12. How will this impact individual agents?  Will they lose all rights to their photos and text?

If a broker takes part in CATRS’s copyright project, choosing Option I in its participant agreement with CATRS, CATRS takes copyright ownership in the listing content each of the broker’s agents submits to the service. The listing broker, though not the owner of the copyrights, has a license from CATRS to use that content any way the listing broker wishes. Individual agents can negotiate in their independent contractor agreements with brokers the right to continue using listing content they supply under particular circumstances. As for brokers that chose Option II in their participant agreements with CATRS and do not participate in CATRS’s copyright project, their agents continue to hold copyrights in works they create unless their independent contractor agreements with their brokers provide otherwise.

So, depending on the choice your broker made in his/her participant agreement with CATRS, your broker may or may not be able to restrict you from using content relating to your own listings. This is consistent with the principle underlying MLS and with Florida law, which hold that a listing agreement is the property of the listing broker; as an agent of the listing broker, you are bound to follow the instructions of the broker with regard to using the materials you create in the course of your work for the broker. You may, however, negotiate specific rights to use content relating to your own listings in your independent contractor agreement with your broker.

If an agent moves their license to another real estate company will they have the ability to take their data, assuming that the previous broker has given them permission?

If the broker of the previous company opted into the copyright protection project in the participant agreement, the agent could use data from her listings at her previous company only as her previous broker permits. Without the previous broker’s permission, the agent would not be able to use data from her listings at the previous company. If she re-listed one of the same properties, she would have to take new pictures and write new remarks text. These terms might differ depending on the independent contractor agreement between the previous broker and the agent, if any.

If the broker of the previous company opted out of the copyright protection project in the participant agreement, the agent’s use of data from her listings at her previous company would be governed by state law and the independent contractor agreement between her and her previous broker, if any.

14. How is the copyright initiative handled if an agent contracts with a professional photographer who already copyrights their photos?

Unless the agent has a written agreement with the photographer that transfers the copyrights from the photographer, the photographer continues to own the copyrights. The agent has only a license to use it for the purposes the photographer permits. The CATRS copyright project does not change these circumstances because the agent cannot transfer to CATRS a copyright that the agent does not own.

15. What if the seller does not agree to the copyright terms?

Sellers generally do not contribute copyright-protected material for inclusion in MLS. To the extent that the seller has taken a picture or drafted remarks for MLS, the seller would be treated like the photographer in the previous question. CATRS does not require brokers or sellers to enter listing agreements or other agreements where the seller must transfer ownership of copyrights to the listing broker or to CATRS. If a broker wishes to obtain copyrights from the seller, the broker should negotiate those terms with the seller. CATRS does require that the listing broker (and the seller and any photographers from whom the listing broker obtains copyright-protected work) have the rights necessary to provide the materials to MLS. Thus, if MLS were sued because a broker submitted someone’s copyright-protected work without permission, the proposed agreements would require the infringing broker to pay MLS’s defense costs.