Legal.

Q: Is my association's membership directory and mailing list protected by copyright? If not, what can we do to prevent suppliers and others from copying and using our members' names and addresses?

A: While the association membership directory may, as a whole, be protected by copyright, the alphabetical listing of members - containing names, addresses, telephone and fax numbers, and possibly e-mail addresses - generally is not protected. Copyrights only protect original expressions of ideas, not the underlying facts or data. Unless the information is organized and set forth in an original, creative manner, copyright does not prohibit someone from using the data without payment to the association.

However, there is a simple and cost-effective way to provide the desired protection for this valuable intellectual property. Through what is essentially a contract, the association can place strict limitations and preconditions on the use of information contained in its directory. Borrowing a page from the software industry, the most practical way to effect the limitations is through a "shrink-wrap license." This is where the directory is wrapped in plastic and a label is affixed to the front stating that opening the plastic and using the directory represents the user's agreement to the terms of the "license" set forth on the label.

Such terms may include provisions limiting use to personal reference only and prohibiting distribution, resale, copying, and use as a mailing list. This license also provides a vehicle through which the association can disclaim any implied endorsements or guarantees of the association's members merely from their presence in the directory. Such a disclaimer can be useful in helping to limit the association's potential liability in the event that a consumer who locates a member through use of the directory is injured by that member's product or service. An appropriately modified version of the license also should be used in conjunction with any online or CD-ROM version of the directory and with all rentals of the association's membership mailing list.

Finally, despite the lack of copyright protection for alphabetical listings contained within membership directories, it still is prudent to place a copyright notice on the directory's cover or title page for deterrence purposes.

Submitted by Jeffrey S. Tenenbaum of Venable, Baetjer, Howard & Civiletti, LLP, Washington, D.C. The "Legal" item is not intended as legal advice but rather as a general educational overview.