The Public Musical Works Database and Transparency of the Mechanical Licensing Collective

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1

Public Law 115–264, 132 Stat. 3676 (2018).

2

See S. Rep. No. 115–339, at 1–2 (2018); Report

and Section-by-Section Analysis of H.R. 1551 by the

Chairmen and Ranking Members of Senate and

House Judiciary Committees, at 1 (2018), https://

www.copyright.gov/legislation/mma_conference_

report.pdf (‘‘Conf. Rep.’’); see also H.R. Rep. No.

115–651, at 2 (2018) (detailing the House Judiciary

Committee’s efforts to review music copyright

laws).

3

As permitted under the MMA, the Office

designated a digital licensee coordinator (‘‘DLC’’) to

represent licensees in proceedings before the

Copyright Royalty Judges (‘‘CRJs’’) and the

Copyright Office, to serve as a non-voting member

of the MLC, and to carry out other functions. 17

U.S.C. 115(d)(5)(B); 84 FR 32274 (July 8, 2019); see

also 17 U.S.C. 115(d)(3)(D)(i)(IV), (d)(5)(C).

4

17 U.S.C. at 115(d)(3)(C)(i)(V).

5

Id. at 115(d)(3)(C)(i)(IV).

6

H.R. Rep. No. 115–651, at 5–6; S. Rep. No. 115–

339, at 5; Conf. Rep. at 4.

7

17 U.S.C. 115(d)(12)(A).

8

See id. at 115(d)(3)(E), (e)(20).

9

Id. at 115(d)(3)(E)(ii), (iii).

10

Id. at 115(d)(3)(E)(ii)(V), (iii)(II).

11

Id. at 115(d)(3)(E)(v).

12

Id.

13

H.R. Rep. No. 115–651, at 5–6, 14; S. Rep. No.

115–339, at 5, 15; Conf. Rep. at 4, 12. The

Conference Report further contemplates that the

Office’s review will be important because the MLC

must operate in a manner that can gain the trust of

the entire music community, but can only be held

liable under a standard of gross negligence when

carrying out certain of the policies and procedures

adopted by its board. Conf. Rep. at 4.

14

17 U.S.C. 115(d)(3)(D)(ix)(I)(aa).

15

H.R. Rep. No. 115–651, at 5–6, 14; S. Rep. No.

115–339, at 5, 15; Conf. Rep. at 4, 12. See also

SoundExchange Initial September NOI Comment at

15; Future of Music Coalition (‘‘FMC’’) Reply

September NOI Comment at 3 (appreciating

‘‘SoundExchange’s warning against too-detailed

regulatory language,’’ but ‘‘urg[ing] the Office to

balance this concern for pragmatism and flexibility

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 210

[Docket No. 2020–8]

The Public Musical Works Database

and Transparency of the Mechanical

Licensing Collective

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of proposed rulemaking.

SUMMARY

: The U.S. Copyright Office is

issuing a notice of proposed rulemaking

regarding the Musical Works

Modernization Act, title I of the Orrin G.

Hatch-Bob Goodlatte Music

Modernization Act. Title I establishes a

blanket compulsory license, which

digital music providers may obtain to

make and deliver digital phonorecords

of musical works. The law establishes a

new blanket license to become available

on the January 1, 2021 license

availability date that will be

administered by a mechanical licensing

collective, which will make available a

public musical works database as part of

its statutory duties. Having solicited

public comments through previous

notifications of inquiry, through this

notice the Office is proposing

regulations concerning the new blanket

licensing regime, including prescribing

categories of information to be included

in the public musical works database, as

well as rules related to the usability,

interoperability, and usage restrictions

of the database. The Office is also

proposing regulations in connection

with its general regulatory authority

related to ensuring appropriate

transparency of the mechanical

licensing collective itself.

DATES

: Written comments must be

received no later than 11:59 Eastern

Time on October 19, 2020.

ADDRESSES

: For reasons of Government

efficiency, the Copyright Office is using

the regulations.gov system for the

submission and posting of public

comments in this proceeding. All

comments are therefore to be submitted

electronically through regulations.gov.

Specific instructions for submitting

comments are available on the

Copyright Office website at https://

copyright.gov/rulemaking/mma-

transparency. If electronic submission

of comments is not feasible due to lack

of access to a computer and/or the

internet, please contact the Office using

the contact information below for

special instructions.

FOR FURTHER INFORMATION CONTACT

:

Regan A. Smith, General Counsel and

Associate Register of Copyrights, by

email at regans@copyright.gov or Anna

B. Chauvet, Associate General Counsel,

by email at achau@copyright.gov. Each

can be contacted by telephone by calling

(202) 707–8350.

SUPPLEMENTARY INFORMATION

:

I. Background

On October 11, 2018, the president

signed into law the Orrin G. Hatch-Bob

Goodlatte Music Modernization Act,

H.R. 1551 (‘‘MMA’’).

1

Title I of the

MMA, the Musical Works

Modernization Act, substantially

modifies the compulsory ‘‘mechanical’’

license for making and distributing

phonorecords of nondramatic musical

works under 17 U.S.C. 115.

2

It does so

by switching from a song-by-song

licensing system to a blanket licensing

regime that will become available on

January 1, 2021 (the ‘‘license availability

date’’), and be administered by a

mechanical licensing collective

(‘‘MLC’’) designated by the Copyright

Office.

3

Among other things, the MLC is

responsible for ‘‘[c]ollect[ing] and

distribut[ing] royalties’’ for covered

activities, ‘‘[e]ngag[ing] in efforts to

identify musical works (and shares of

such works) embodied in particular

sound recordings and to identify and

locate the copyright owners of such

musical works (and shares of such

works),’’ and ‘‘[a]dminister[ing] a

process by which copyright owners can

claim ownership of musical works (and

shares of such works).’’

4

It also must

‘‘maintain the musical works database

and other information relevant to the

administration of licensing activities

under [section 115].’’

5

A. Regulatory Authority Granted to the

Copyright Office

The MMA enumerates several

regulations that the Copyright Office is

specifically directed to promulgate to

govern the new blanket licensing

regime, and Congress invested the

Copyright Office with ‘‘broad regulatory

authority’’

6

to ‘‘conduct such

proceedings and adopt such regulations

as may be necessary or appropriate to

effectuate the provisions of [the MMA

pertaining to the blanket license].’’

7

The

MMA specifically directs the Copyright

Office to promulgate regulations related

to the MLC’s creation of a free database

to publicly disclose musical work

ownership information and identify the

sound recordings in which the musical

works are embodied.

8

As discussed

more below, the statute requires the

public database to include various types

of information, depending upon

whether a musical work has been

matched to a copyright owner.

9

For both

matched and unmatched works, the

database must also include ‘‘such other

information’’ ‘‘as the Register of

Copyrights may prescribe by

regulation.’’

10

The database must ‘‘be

made available to members of the public

in a searchable, online format, free of

charge,’’

11

as well as ‘‘in a bulk,

machine-readable format, through a

widely available software application,’’

to certain parties, including blanket

licensees and the Copyright Office, free

of charge, and to ‘‘[a]ny other person or

entity for a fee not to exceed the

marginal cost to the mechanical

licensing collective of providing the

database to such person or entity.’’

12

In addition, the legislative history

contemplates that the Office will

‘‘thoroughly review[ ]’’

13

policies and

procedures established by the MLC and

its three committees, of which the MLC

is statutorily bound to ensure are

‘‘transparent and accountable,’’

14

and

promulgate regulations that ‘‘balance[ ]

the need to protect the public’s interest

with the need to let the new collective

operate without over-regulation.’’

15

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against the need to provide as much clear guidance

and oversight as possible to encourage trust’’).

16

H.R. Rep. No. 115–651, at 14; S. Rep. No. 115–

339, at 15; Conf. Rep. at 12.

17

H.R. Rep. No. 115–651, at 14; S. Rep. No. 115–

339, at 15; Conf. Rep. at 12.

18

84 FR at 32280.

19

See 85 FR 22568, 22570–71 (Apr. 22, 2020)

(detailing various ways the statute promotes

transparency of the mechanical licensing collective,

such as by requiring the collective to publish an

annual report, make its bylaws publicly available

and its policies and practices ‘‘transparent and

accountable,’’ identify a point of contact for

publisher inquiries and complaints with timely

redress, establish an anti-comingling policy for

funds collected and those not collected under

section 115, and submit itself to a public audit

every five years; the statute also permits copyright

owners to audit the collective to verify the accuracy

of royalty payments, and establishes a five-year

designation process for the Office to periodically

review the mechanical licensing collective’s

performance).

20

84 FR 49966, 49972 (Sept. 24, 2019).

21

Id. at 49973. All rulemaking activity, including

public comments, as well as educational material

regarding the Music Modernization Act, can

currently be accessed via navigation from https://

www.copyright.gov/music-modernization/.

Specifically, comments received in response to the

September 2019 notification of inquiry are available

at https://www.regulations.gov/docketBrowser?

rpp=25&po=0&dct=PS&D=COLC-2019-

0002&refD=COLC-2019-0002-0001, and comments

received in response to the April 2020 notification

of inquiry are available at https://

www.regulations.gov/docketBrowser?rpp=25&so=

DESC&sb=commentDueDate&po=0&dct=PS

&D=COLC-2020-0006. Guidelines for ex parte

communications, along with records of such

communications, are available at https://

www.copyright.gov/rulemaking/mma-

implementation/ex-parte-communications.html.

The Office encourages, although does not require,

parties to refrain from requesting ex parte meetings

on this notice of proposed rulemaking until they

have submitted written comments. As stated in the

guidelines, ex parte meetings with the Office are

intended to provide an opportunity for participants

to clarify evidence and/or arguments made in prior

written submissions, and to respond to questions

from the Office on those matters. References to

these comments are by party name (abbreviated

where appropriate), followed by ‘‘Initial September

NOI Comment,’’ ‘‘Reply September NOI Comment,’’

‘‘April NOI Comment,’’ ‘‘Letter,’’ or ‘‘Ex Parte

Letter,’’ as appropriate.

22

See Music Artists Coalition (‘‘MAC’’) Initial

September NOI Comment at 2 (indicating ‘‘the need

for more transparency’’ regarding the MLC’s

structure); Music Innovation Consumers (‘‘MIC’’)

Coalition Initial September NOI Comment at 3 (‘‘All

stakeholders in the music marketplace benefit when

current and accurate information about copyright

ownership is easily accessible.’’); Screen Composers

Guild of Canada (‘‘SCGC’’) Reply Comment at 2,

U.S. Copyright Office Dkt. No. 2018–11, available

at https://www.regulations.gov/docketBrowser?

rpp=25&po=0&dct=PS&D=COLC-2018-0011

&refD=COLC-2018-0011-0001 (‘‘We urge you to

make the choice that gives us transparency in the

administration and oversight of our creative works,

and a fair chance at proper compensation for those

works, now and in the future.’’); Iconic Artists LLC

Initial Comment at 2, U.S. Copyright Office Dkt. No.

2018–11, available at https://www.regulations.gov/

docketBrowser?rpp=25&po=0&dct=PS&D=COLC-

2018-0011&refD=COLC-2018-0011-0001 (‘‘In the

current paradigm there is a need for greater

transparency and accuracy in reporting.’’); DLC

Reply September NOI Comment at 28 (noting that

‘‘transparency will be critical to ensuring that the

MLC fulfills its duties in a fair and efficient

manner’’).

23

Songwriters Guild of America, Inc. (‘‘SGA’’)

Initial September NOI Comment at 6.

24

FMC Reply September NOI Comment at 2. See

also Recording Academy Initial September NOI

Comment at 4; Lowery Reply September NOI

Comment at 2.

25

85 FR at 22568. The Office disagreed with the

MLC that regulations regarding issues related to

transparency ‘‘may be premature’’ because the

MLC’s ‘‘policies and procedures are still being

developed’’—including because the statute directs

the Office to promulgate regulations concerning

contents of the public database. Id. at 22570; 17

U.S.C. 115(d)(3)(E)(ii)(V), (iii)(II); MLC Initial

September NOI Comment at 30–31.

26

See, e.g., Nat’l Cable & Telecomms. Ass’n v.

Brand X internet Servs., 545 U.S. 967, 980 (2005)

(‘‘[A]mbiguities in statutes within an agency’s

jurisdiction to administer are delegations of

authority to the agency to fill the statutory gap in

reasonable fashion.’’) (citing Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)).

See also Conf. Rep. at 4, 12.

27

85 FR at 22571.

Congress acknowledged that ‘‘[a]lthough

the legislation provides specific criteria

for the collective to operate, it is to be

expected that situations will arise that

were not contemplated by the

legislation,’’ and that ‘‘[t]he Office is

expected to use its best judgement in

determining the appropriate steps in

those situations.’’

16

Legislative history

further states that ‘‘[t]he Copyright

Office has the knowledge and expertise

regarding music licensing through its

past rulemakings and recent assistance

to the Committee[s] during the drafting

of this legislation.’’

17

Accordingly, in

designating the MLC, the Office stated

that it ‘‘expects ongoing regulatory and

other implementation efforts to . . .

extenuate the risk of self-interest,’’ and

that ‘‘the Register intends to exercise her

oversight role as it pertains to matters of

governance.’’

18

Finally, as detailed in

the Office’s prior notification, while the

MMA envisions the Office reasonably

and prudently exercising regulatory

authority to facilitate appropriate

transparency of the collective and the

public musical works database, the

statutory language as well as the

collective’s structure separately include

aspects to promote disclosure absent

additional regulation.

19

B. Rulemaking Background

Against that backdrop, on September

24, 2019, the Office issued a notification

of inquiry (‘‘September NOI’’) seeking

public input on a variety of aspects

related to implementation of title I of

the MMA, including issues that should

be considered regarding information to

be included in the public musical works

database (e.g., which specific additional

categories of information might be

appropriate to include by regulation), as

well as the usability, interoperability,

and usage restrictions of the database

(e.g., technical or other specific

language that might be helpful to

consider in promulgating regulations,

discussion of the pros and cons of

applicable standards, and whether

historical snapshots of the database

should be maintained to track

ownership changes over time).

20

In

addition, the September NOI sought

public comment on any issues that

should be considered relating to the

general oversight of the MLC.

21

In response, many commenters

emphasized the importance of

transparency of the public database and

the MLC’s operations,

22

and urged the

Office to exercise ‘‘expansive’’

23

and

‘‘robust’’

24

oversight. Given these

comments, on April 22, 2020, the Office

issued a second notification of inquiry

seeking further comment on information

to be included in the public musical

works database, usability,

interoperability, and usage restrictions

of the database, and transparency and

general oversight of the MLC (‘‘April

NOI’’).

25

Having reviewed and considered all

relevant comments received in response

to both notifications of inquiry, and

having engaged in ex parte

communications with commenters, the

Office issues a proposed rule regarding

the categories of information to be

included in the public musical works

database, as well as the usability,

interoperability, and usage restrictions

of the database. The Office is also

proposing regulations concerning its

general regulatory authority related to

ensuring appropriate transparency of

the mechanical licensing collective

itself. Commenters are reminded that

while the Office’s regulatory authority is

relatively broad, it is obviously

constrained by the law Congress

enacted.

26

As previously noted, given

the start-up nature of the collective,

after reviewing the comments received

in response to this proposed rule the

Office will consider whether fashioning

an interim rule, rather than a final rule,

may be best-suited to ensure a

sufficiently responsive and flexible

regulatory structure.

27

Where

appropriate, the proposed rule is

intended to grant the MLC flexibility in

various ways instead of adopting certain

oversight suggestions that may prove

overly burdensome as it prepares for the

license availability date. For example,

and as discussed below, the proposed

rule grants the MLC flexibility in the

following ways:

•Flexibility to label fields in the

public database, as long as the labeling

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28

17 U.S.C. 115(d)(3)(E), (e)(20).

29

See The MLC, Transparency, https://

themlc.com/faqs/categories/transparency (last

visited Sept. 1, 2020) (noting that the MLC will

‘‘promote transparency’’ by ‘‘[p]roviding

unprecedented access to musical works ownership

information through a public database’’).

30

17 U.S.C. 115(d)(3)(E)(i).

31

See Castle April NOI Comment at 1 (‘‘The

musical works database does not belong to the MLC

or The MLC and if there is any confusion about

that, it should be cleared up right away.’’). Any use

by the Office referring to the public database as ‘‘the

MLC’s database’’ or ‘‘its database’’ was meant to

refer to the creation and maintenance of the

database, not ownership.

32

17 U.S.C. 115(d)(3)(B)(ii)(II) (emphasis added).

33

See 164 Cong. Rec. S6292, 6293 (daily ed. Sept.

25, 2018) (statement of Sen. Hatch) (‘‘I need to

thank Chairman Grassley, who shepherded this bill

through the committee and made important

contributions to the bill’s oversight and

transparency provisions.’’); 164 Cong. Rec. S 501,

504 (daily ed. Jan. 24, 2018) (statement of Sen.

Coons) (‘‘This important piece of legislation will

bring much-needed transparency and efficiency to

the music marketplace.’’); 164 Cong. Rec. H3522,

3541 (daily ed. Apr. 25, 2018) (statement of Rep.

Steve Chabot); 164 Cong. Rec. H3522 at 3542 (daily

ed. Apr. 25, 2018) (statement of Rep. Norma Torres).

34

Conf. Rep. at 6 (‘‘Music metadata has more

often been seen as a competitive advantage for the

party that controls the database, rather than as a

resource for building an industry on.’’); id. (noting

that the Global Repertoire Database project, an EU-

initiated attempt to create a comprehensive and

authoritative database for ownership and

administration of musical works, ‘‘ended without

success due to cost and data ownership issues’’).

35

MLC Ex Parte Letter Aug. 21, 2020 (‘‘MLC Ex

Parte Letter #7’’) at 2. The MLC also confirmed that

‘‘the musical work and sound recording data used

by the MLC to allocate royalties to copyright owners

will be the same musical work and sound recording

data that is made available in the public database.’’

Id. at 3–4. See Music Reports April NOI Comment

at 2.

36

The Alliance for Recorded Music (‘‘ARM’’) asks

that ‘‘the MLC be required to label [the featured

artist field] . . . using the phrase ‘primary artist,’ ’’

because ‘‘‘primary artist’ is the preferred term as

‘featured artist’ is easily confused with the term

‘featured’ on another artist’s recording, as in Artist

X feat. Artist Y.’’ ARM April NOI Comment at 6.

Because this is a statutory term and the Office

wishes to afford the MLC some flexibility in

labeling the public database, it tentatively declines

this request. The proposed rule does, however,

require the MLC to consider industry practices

when labeling fields in the public database to

reduce the likelihood of user confusion.

37

17 U.S.C. 115(d)(3)(E)(ii).

38

Id. at 115(d)(3)(E)(iii).

39

Id. at 115(d)(3)(E)(ii)(V), (iii)(II).

considers industry practice and reduces

the likelihood of user confusion.

•Flexibility not to include

information regarding terminations,

performing rights organization (‘‘PRO’’)

affiliation, and DDEX Party Identifier

(DPID) in the public database.

•Flexibility to allow songwriters, or

their representatives, to have songwriter

information listed anonymously or

pseudonymously.

•Flexibility as to the most

appropriate method for archiving and

maintaining historical data to track

ownership and other information

changes in the public database.

•Flexibility as to the most

appropriate method for displaying data

provenance information in the public

database.

•Flexibility on the precise disclaimer

language used in the public database to

alert users that the database is not an

authoritative source for sound recording

information.

•Flexibility to include information in

the public database that is not

specifically identified by the statute but

the MLC finds useful (but would not

have serious privacy or identity theft

risks to individuals or entities).

•Flexibility to develop reasonable

terms of use for the public database,

including restrictions on use.

•Flexibility to block third parties

from bulk access to the public database

after attempts to bypass marginal cost

recovery or where persons have engaged

in other unlawful activity with respect

to the database.

•Flexibility regarding the initial

format in which the MLC provides bulk

access to the public database.

To aid the Office’s review, it is

requested that where a submission

responds to more than one of the below

categories, it be divided into discrete

sections that have clear headings to

indicate the category being discussed in

each section. Comments addressing a

single category should also have a clear

heading to indicate which category it

discusses. The Office welcomes parties

to file joint comments on issues of

common agreement and consensus.

While all public comments are

welcome, should parties disagree with

aspects of the proposed rule, the Office

encourages parties to provide specific

proposed changes to regulatory language

for the Office to consider.

II. Proposed Rule

A. Categories of Information in the

Public Musical Works Database

As noted above, the MLC must

establish and maintain a free public

database of musical work ownership

information that also identifies the

sound recordings in which the musical

works are embodied,

28

a function

expected to provide transparency across

the music industry.

29

While the

mechanical licensing collective must

‘‘establish and maintain a database

containing information relating to

musical works,’’

30

the statute and

legislative history emphasize that the

database is meant to benefit the music

industry overall and is not ‘‘owned’’ by

the collective itself.

31

Under the statute,

if the Copyright Office designates a new

entity to be the mechanical licensing

collective, the Office must ‘‘adopt

regulations to govern the transfer of

licenses, funds, records, data, and

administrative responsibilities from the

existing mechanical licensing collective

to the new entity.’’

32

The legislative

history highlights the intent of the

public database—providing access to

musical works ownership information

and promoting transparency across the

music industry

33

—and distinguishes it

from past attempts to control and/or

own industry data.

34

Accordingly, the

MLC ‘‘agrees that the data in the public

MLC musical works database is not

owned by the MLC or its vendor,’’ and

that ‘‘data in this database will be

accessible to the public at no cost, and

bulk machine-readable copies of the

data in the database will be available to

the public, either for free or at marginal

cost, pursuant to the MMA.’’

35

For musical works that have been

matched (i.e., the copyright owner of

such work (or share thereof) has been

identified and located), the statute

requires the public database to include:

1. The title of the musical work;

2. The copyright owner of the musical

work (or share thereof), and the ownership

percentage of that owner;

3. Contact information for such copyright

owner; and

4. To the extent reasonably available to the

MLC, (a) the ISWC for the work, and (b)

identifying information for sound recordings

in which the musical work is embodied,

including the name of the sound recording,

featured artist,

36

sound recording copyright

owner, producer, ISRC, and other

information commonly used to assist in

associating sound recordings with musical

works.

37

For unmatched musical works, the

statute requires the database to include,

to the extent reasonably available to the

MLC:

1. The title of the musical work;

2. The ownership percentage for which an

owner has not been identified;

3. If a copyright owner has been identified

but not located, the identity of such owner

and the ownership percentage of that owner;

4. Identifying information for sound

recordings in which the work is embodied,

including sound recording name, featured

artist, sound recording copyright owner,

producer, ISRC, and other information

commonly used to assist in associating sound

recordings with musical works; and

5. Any additional information reported to

the MLC that may assist in identifying the

work.

38

For both matched and unmatched

works, the public database must also

include ‘‘such other information’’ ‘‘as

the Register of Copyrights may prescribe

by regulation.’’

39

The ‘‘Register shall

use its judgement to determine what is

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40

Conf. Rep. at 7.

41

85 FR at 22573. See Conf. Rep. at 7 (noting that

the ‘‘highest responsibility’’ of the MLC includes

‘‘efforts to identify the musical works embodied in

particular sound recordings,’’ ‘‘identify[ing] and

locat[ing] the copyright owners of such works so

that [the MLC] can update the database as

appropriate,’’ and ‘‘efficient and accurate collection

and distribution of royalties’’).

42

17 U.S.C. 115(d)(3)(J)(i)(II)(bb). See MLC Initial

September NOI Comment at 24 (contending that not

all information contained in its database ‘‘would be

appropriate for public disclosure,’’ and that it

‘‘should be permitted to exercise reasonable

judgment in determining what information beyond

what is statutorily required should be made

available to the public’’).

43

See 85 FR 22549 (Apr. 22, 2020) (proposing a

floor of categories of information to be required in

periodic reporting to copyright owners, but noting

that the MLC expects to include additional

information); U.S. Copyright Office, Interim Rule,

Royalty Reporting and Distribution Obligations of

the Mechanical Licensing Collective, Dkt. No. 2020–

6, published elsewhere in this issue of the Federal

Register.

44

84 FR at 49972; 85 FR at 22573. See, e.g.,

SoundExchange Initial September NOI Comment at

6 (‘‘[T]he data fields recited in the statute should

be viewed as a minimal and vaguely described set

of data for understanding rights with respect to a

musical work in a crowded field where there are

many millions of relevant works with similar titles

in different languages and complicated ownership

structures to understand and communicate.’’).

45

See SGA Initial September NOI Comment at 2

(‘‘While the names of copyright owners and

administrators associated with a musical work may

change on a constant basis, and other variables and

data points are subject to frequent adjustment, the

title and the names of the creators never vary from

the date of a work’s creation forward.’’); The

International Confederation of Societies of Authors

and Composers (‘‘CISAC’’) & the International

Organisation representing Mechanical Rights

Societies (‘‘BIEM’’) April NOI Comment at 2;

Songwriters of North America (‘‘SONA’’) April NOI

Comment at 2; DLC April NOI Comment at 4 n.19;

see also Barker Initial September NOI Comment at

2; FMC Reply September NOI Comment at 2; DLC

Reply September NOI Comment at 26.

46

MLC April NOI Comment at 9 (agreeing with

inclusion of songwriter information for musical

works); MLC Reply September NOI Comment at 32

(same).

47

Because the statute’s definition of ‘‘songwriter’’

includes composers, the proposed rule uses the

term ‘‘songwriter’’ to include both songwriters and

composers. 17 U.S.C. 115(e)(32). To reduce the

likelihood of confusion, the MLC may want to

consider labeling this field ‘‘Songwriter or

Composer’’ in the public database. Following the

statutory language, the proposed rule requires the

MLC to include the songwriter field in the public

database, and the other fields discussed below, ‘‘to

the extent reasonably available to the mechanical

licensing collective.’’ See id. at 115(d)(3)(E)(ii)(IV),

(iii)(I). See also U.S. Copyright Office, Interim Rule,

Royalty Reporting and Distribution Obligations of

the Mechanical Licensing Collective, Dkt. No. 2020–

6, published elsewhere in this issue of the Federal

Register (requiring the MLC to report certain types

of information to copyright owners ‘‘known to the

MLC’’).

48

See Kernen NPRM Comment at 1, U.S.

Copyright Office Dkt. No. 2020–7, available at

https://beta.regulations.gov/document/COLC-2020-

0004-0001.

49

17 U.S.C. 115(d)(3)(E)(ii)(IV), (iii)(I)(dd). See

MLC April NOI Comment at 9 (stating that it ‘‘is

willing to include producer information in the

public database to the extent the Office requires it

be reported from DMPs’’). The Office notes that the

statute requires digital music providers to report

‘‘producer’’ to the mechanical licensing collective.

17 U.S.C. 115(d)(3)(E)(ii)(IV), (iii)(I)(dd). See also

U.S. Copyright Office, Interim Rule, Music

Modernization Act Notices of License, Notices of

Nonblanket Activity, Data Collection and Delivery

Efforts, and Reports of Usage and Payment, Dkt. No.

2020–5, published elsewhere in this issue of the

Federal Register.

50

See MLC Initial September NOI Comment at 13

n.6 (originally believing that ‘‘producer’’ referred to

‘‘the record label or individual or entity that

commissioned the sound recording’’); Recording

Academy Initial September NOI Comment at 3

(urging Office to ‘‘clarify that a producer is someone

who was part of the creative process that created

a sound recording’’); Recording Industry

Association of America, Inc. (‘‘RIAA’’) Initial

September NOI Comment at 11 (stating ‘‘producer’’

should be defined as ‘‘the primary person(s)

contracted by and accountable to the content owner

for the task of delivering the recording as a finished

product’’); MLC Reply September NOI Comment at

35 (updating its understanding).

51

See U.S. Copyright Office, Interim Rule, Music

Modernization Act Notices of License, Notices of

Nonblanket Activity, Data Collection and Delivery

Efforts, and Reports of Usage and Payment, Dkt. No.

2020–5, published elsewhere in this issue of the

Federal Register.

52

17 U.S.C. 115(d)(3)(E)(ii)–(iii).

53

Conf. Rep. at 7. The legislative history also

notes that ‘‘the Register may at some point wish to

consider after an appropriate rulemaking whether

standardized identifiers for individuals would be

appropriate, or even audio fingerprints.’’ Id.

54

IPI is ‘‘[a] unique identifier assigned to rights

holders with an interest in an artistic work,

including natural persons or legal entities, made

known to the IPI Centre. The IPI System is an

international registry used by CISAC and BIEM

societies.’’ U.S. Copyright Office, Unclaimed

Royalties Study Acronym Glossary, https://

www.copyright.gov/policy/unclaimed-royalties/

glossary.pdf.

an appropriate expansion of the

required fields, but shall not adopt new

fields that have not become reasonably

accessible and used within the industry

unless there is widespread support for

the inclusion of such fields.’’

40

As noted in the April NOI, in

considering whether to prescribe the

inclusion of additional fields beyond

those statutorily required, the Office has

focused on fields that advance the goal

of the public database: Reducing the

number of unmatched musical works by

accurately identifying musical work

copyright owners so they can be paid

what they are owed by digital music

providers (‘‘DMPs’’) operating under the

section 115 statutory license.

41

At the

same time, the Office is mindful of the

MLC’s corresponding duties to keep

confidential business and personal

information secure and inaccessible; for

example, data related to computation of

market share is contemplated by the

statue as sensitive and confidential.

42

Recognizing that a robust musical works

database may contain many fields of

information, the proposed rule may be

most valuable in establishing a floor of

required information that users can

reliably expect to access in the public

database, while providing the MLC with

flexibility to include additional data

fields that it finds helpful.

43

Both

notifications of inquiry asked which

specific additional categories of

information, if any, should be required

for inclusion in the public database, and

stakeholder comments, generally

seeking inclusion of additional

information, are discussed by category

below.

44

1. Songwriter or Composer

Commenters overwhelmingly agreed

with the Office’s tentative conclusion

that the database should include

songwriter and composer information,

45

including the MLC.

46

The proposed rule

requires the MLC to include songwriter

and composer information in the public

database, to the extent reasonably

available to the collective.

47

In response

to a concern raised about songwriters

potentially wanting to mask their

identity to avoid being associated with

certain musical works, the proposed

rule grants the MLC discretion to allow

songwriters, or their representatives, the

option of having songwriter information

listed anonymously or

pseudonymously.

48

2. Studio Producer

As the statute requires the public

database to include ‘‘producer,’’ to the

extent reasonably available to the

MLC,

49

so does the proposed rule.

Initially, there appeared to be

stakeholder disagreement about the

meaning of the term ‘‘producer,’’ which

has since been resolved to clarify that

‘‘producer’’ refers to the studio

producer.

50

Because the term

‘‘producer’’ relates not only to the

public database, but also to information

provided by digital music providers in

reports of usage, the Office included an

overarching definition of ‘‘producer’’ in

its interim rule concerning reports of

usage, notices of license, and data

collection efforts, among other things,

that applies throughout its section 115

regulations to define ‘‘producer’’ as the

studio producer.

51

3. Unique Identifiers

As noted above, the statute requires

the MLC to include ISRC and ISWC

codes, when reasonably available.

52

According to the legislative history,

‘‘[u]sing standardized metadata such as

ISRC and ISWC codes, is a major step

forward in reducing the number of

unmatched works.’’

53

In response to the September NOI, the

DLC proposed including the Interested

Parties Information (IPI)

54

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ISNI is ‘‘[a] unique identifier for identifying the

public identities of contributors to creative works,

regardless their legal or natural status, and those

active in their distribution. These may include

researchers, inventors, writers, artists, visual

creators, performers, producers, publishers,

aggregators, and more. A different ISNI is assigned

for each name used.’’ U.S. Copyright Office,

Unclaimed Royalties Study Acronym Glossary,

https://www.copyright.gov/policy/unclaimed-

royalties/glossary.pdf.

56

DLC Initial September NOI Comment at 21;

DLC Reply September NOI Comment Add. at A–16.

57

SoundExchange Initial September NOI

Comment at 8; see id. at 7–8 (‘‘Reflecting all

applicable unique identifiers in the MLC Database

will allow users of the MLC Database readily to

match records in the database to other databases

when ISWC is not included in one or the other of

the databases.’’).

58

MLC Reply September NOI Comment at 33.

59

Id. at 34.

60

85 FR at 22574.

61

DLC April NOI Comment at 4 n.19; SONA

April NOI Comment at 4; CISAC & BIEM April NOI

Comment at 2.

62

SONA April NOI Comment at 5.

63

MLC April NOI Comment at 9.

64

MLC Ex Parte Letter #7 at 5.

65

Id.

66

The Office notes that the MLC supports

including the UPC field in royalty reports to

copyright owners, and in reports of usage provided

by DMPs to the MLC. See MLC Initial September

NOI Comment at App. G; MLC NPRM Comment at

App. C, U.S. Copyright Office Dkt. No. 2020–5,

available at https://beta.regulations.gov/document/

COLC-2020-0005-0001. In addition, the MLC has

maintained it will use UPC in its matching efforts.

See MLC Letter July 13, 2020 at 7 (stating ‘‘[a]ll of

the metadata fields proposed in §210.27(e)(1) will

be used as part of the MLC’s matching efforts’’); see

also 85 FR 22518, 22541 (Apr. 22, 2020) (UPC

proposed in §210.27(e)(1)).

67

See U.S. Copyright Office, Interim Rule, Music

Modernization Act Notices of License, Notices of

Nonblanket Activity, Data Collection and Delivery

Efforts, and Reports of Usage and Payment, Dkt. No.

2020–5, published elsewhere in this issue of the

Federal Register; U.S. Copyright Office, Interim

Rule, Royalty Reporting and Distribution

Obligations of the Mechanical Licensing Collective,

Dkt. No. 2020–6, published elsewhere in this issue

of the Federal Register.

68

17 U.S.C. 115(d)(3)(C)(E)(ii)–(iii). CISAC &

BIEM contend that creators’ percentage share

should not be made publicly accessible in the

database. CISAC & BIEM NPRM Comment at 2, U.S.

Copyright Office Dkt. No. 2020–7, available at

https://beta.regulations.gov/document/COLC-2020-

0004-0001. The statute, however, specifically

contemplates such information being made publicly

available in the database. 17 U.S.C.

115(d)(3)(C)(E)(ii)–(iii).

69

DLC Reply September NOI Comment Add. at

A–16 (urging inclusion of ‘‘all additional entities

involved with the licensing or ownership of the

musical work, including publishing administrators

and aggregators, publishers and sub-publishers, and

any entities designated to receive license notices,

reporting, and/or royalty payment on the copyright

owners’ behalf’’); ARM April NOI Comment at 2

(agreeing that ‘‘information related to all persons or

entities that own or control the right to license and/

or collect royalties related to musical works in the

United States should be included’’). See also FMC

April NOI Comment at 2; SONA April NOI

Comment at 5–6; SoundExchange Initial September

NOI Comment at 8 (observing that

‘‘[c]ommercialization of musical works often

involves chains of publishing, sub-publishing and

administration agreements that determine who is

entitled to be paid for use of a work,’’ and that the

CWR standard contemplates gathering this

information, such that the MLC database should

also collect and make available this information).

70

Barker Initial September NOI Comment at 2.

71

Id. at 3.

72

MLC Reply September NOI Comment at 32

n.16.

73

MLC April NOI Comment at 9.

International Standard Name Identifier

(‘‘ISNI’’),

55

to the extent reasonably

available to the MLC.

56

SoundExchange

asserted that the ‘‘CWR standard

contemplates a much richer set of

information about ‘interested parties’

linked to CISAC’s Interested Party

Information (‘IPI’) system, including

information about songwriters and

publishers at various levels,’’ and so the

database ‘‘should include and make

available a full set of information about

interested parties involved in the

creation and administration of the

musical work, including shares and

identifiers.’’

57

For its part, the MLC

stated that it plans to include IPI and

ISNI in the public database (but should

not be required to do so through

regulation),

58

and create its own

proprietary identifier for each musical

work in the database.

59

In the subsequent April NOI, the

Office sought public input on issues

relating to the inclusion of unique

identifiers for musical works in the

public database, including whether

regulations should require including IPI

or ISNI, the MLC’s own standard

identifier, or any other specific

additional standard identifiers

reasonably available to the MLC.

60

In

response, multiple commenters agree

that the public database should include

IPI and/or ISNI.

61

SONA also ‘‘strongly

encourage[d]’’ the inclusion of

Universal Product Code (‘‘UPC’’)

because ‘‘these codes are sometimes the

only reliable way to identify the

particular product for which royalties

are being paid and thus ensure that

royalties are correctly allocated.’’

62

The

MLC reiterated its plan to include IPI

and ISNI, as well as ‘‘other unique

identifiers’’ and ‘‘any other third party

proprietary identifiers . . . to the extent

the MLC believes they will be helpful to

copyright owners.’’

63

As part of that

effort, the MLC ‘‘intend[s] to make

available unique identifiers reported by

the DMPs in the public database.’’

64

The MLC does not, however, intend to

include the UPC field ‘‘in the initial

versions of the portal or public database

(which focus on providing the data

needed for matching and claiming).’’

65

The Office finds the comments

regarding IPI and ISNI persuasive in

light of the statute, and thus proposes to

require the public database to include

IPI and/or ISNI for each songwriter,

publisher, and musical work copyright

owner, as well as UPC,

66

to the extent

reasonably available to the MLC. The

Office seeks public comment on

whether IPIs and/or ISNIs for foreign

collective management organizations

(‘‘CMOs’’) should be required to be

listed separately. Under the proposed

rule, the public database must also

include the MLC’s standard identifier

for the musical work, and to the extent

reasonably available to the MLC, unique

identifier(s) assigned by the blanket

licensee, if reported by the blanket

licensee.

67

4. Information Related to Ownership

and Control of Musical Works

By statute, the database must include

information regarding the ownership of

the musical work as well as the

underlying sound recording, including

‘‘the copyright owner of the work (or

share thereof), and the ownership

percentage of that owner,’’ or, if

unmatched, ‘‘the ownership percentage

for which an owner has not been

identified.’’

68

The statute also requires

a field called ‘‘sound recording

copyright owner,’’ the meaning of which

is discussed further below.

Although the MMA does not

specifically call out music publishing

administrators, that is, entities

responsible for managing copyrights on

behalf of songwriters, including

administering, licensing, and collecting

publishing royalties without receiving

an ownership interest in such

copyrights, a number of commenters

urge inclusion of this information in the

public musical works database.

69

As one

publisher suggests, because ‘‘[t]he

copyright owner may not necessarily be

the entity authorized to control, license,

or collect royalties for the musical

work,’’ the public database should

include information identifying the

administrators or authorized entities

who license or collect on the behalf of

musical work copyright owners.

70

He

also proposed that because ‘‘a copyright

owner’s ‘ownership’ percentage may

differ from that same owner’s ‘control’

percentage,’’ the public database should

include separate fields for ‘‘control’’

versus ‘‘ownership’’ percentage.

71

The

MLC agrees with that approach,

72

stating that ‘‘the database should

include information identifying the

administrators or authorized entities

who license the relevant musical work

and/or collect royalties for such work on

behalf of the copyright owner.’’

73

In addition, with respect to specific

ownership percentages, which are

required by statute to be made publicly

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74

SoundExchange Initial September NOI

Comment at 8.

75

Id. at 9; see also id. at 15.

76

MLC Ex Parte Letter #7 at 5.

77

CISAC & BIEM April NOI Comment at 1. See

also Japanese Society for Rights of Authors,

Composers and Publishers (‘‘JASRAC’’) Initial

September NOI Comment at 2 (‘‘[A]n effective and

efficient claims process needs to be established for

works that are not initially matched, which will

allow foreign rights owners to claim works without

significant burden.’’).

78

See 17 U.S.C. 115.

79

See id. at 101 (defining ‘‘copyright owner’’ and

‘‘transfer of copyright ownership’’); id. at 115.

80

MLC Ex Parte Letter #7 at 6.

81

MLC Reply September NOI Comment at 44.

82

The MLC, Play Your Part, https://themlc.com/

play-your-part (last visited Sept. 1, 2020).

83

The MLC, MLC Data Quality Initiative, https://

themlc.com/sites/default/files/2020-08/2020%20-

%20DQI%20One%20Pager%20Updated%208-18-

20.pdf (last visited Sept. 1, 2020).

84

17 U.S.C. 115(d)(3)(K).

85

MLC Ex Parte Letter #7 at 5.

86

See RIAA Initial September NOI Comment at 8;

MLC Reply September NOI Comment at 32; ARM

April NOI Comment at 3; Recording Academy April

NOI Comment at 3; see also SONA April NOI

Comment at 5–6 (contending that data supplied to

the MLC via the CWR format for musical works

should be in the public database).

87

SoundExchange Initial September NOI

Comment at 9; ARM April NOI Comment at 3.

88

SoundExchange Initial September NOI

Comment at 7; ARM April NOI Comment at 3.

89

See MLC Reply September NOI Comment at 33,

App. E (agreeing with inclusion of duration,

version, and release year of the sound recording, to

the extent available to the MLC); Recording

Academy Initial September NOI Comment at 3

(noting such information would ‘‘help distinguish

between songs that have been recorded and released

under different titles or by different artists multiple

times’’); RIAA Initial September NOI Comment at

6–7 (same); Recording Academy April NOI

Comment at 3 (stating database should include

version titles, track duration, and release date);

SONA April NOI Comment at 6 (contending track

duration, version, and release date should be

included in the database). ARM agrees that track

duration, version, and release year should be in the

database, but only if such data is obtained from an

authoritative source. ARM April NOI Comment at

3. RIAA recommends revising the ‘‘sound recording

name’’ field to ‘‘sound recording track title,’’ or in

the alternative, ‘‘sound recording name/sound

recording track title.’’ RIAA Initial September NOI

Comment at 10–11.

available, SoundExchange raises the

question of how the database should

best address ‘‘the frequent situation

(particularly with new works) where the

various co-authors and their publishers

have, at a particular moment in time,

collectively claimed more or less than

100% of a work.’’

74

Noting that it may

be difficult for the MLC to withhold

information regarding the musical work

until shares equal 100% (the practice of

other systems), it suggests the MLC

‘‘make available information concerning

the shares claimed even when they total

more than 100% (frequently referred to

as an ‘overclaim’) or less than 100%

(frequently referred to as an

‘underclaim’).’’

75

In response, the MLC

stated that it ‘‘intends to mark

overclaims as such and show the

percentages and total of all shares

claimed so that overclaims and

underclaims will be transparent.’’

76

Relatedly, CISAC & BIEM raise

concerns about needing ‘‘to clarify the

concept of ‘copyright owner,’ ’’ as

‘‘foreign collective management

organizations (CMOs) . . . are also

considered copyright owners or

exclusively mandated organizations of

the musical works administered by

these entities,’’ and thus ‘‘CMOs

represented by CISAC and BIEM should

be able to register in the MLC database

the claim percentages they represent.’’

77

While the MMA does not reference

foreign musical works specifically,

nothing in the statute indicates that

foreign copyright owners should be

treated differently from U.S. copyright

owners under the blanket licensing

regime, or prevents the MLC from

seeking or including data from foreign

CMOs in building the public database.

78

Where copyright ownership has been

assigned or otherwise transferred to a

foreign CMO or, conversely, a U.S. sub-

publisher, the statute does not specify

that it should be treated differently from

a similarly-situated U.S. entity that has

been assigned or otherwise been

transferred copyright ownership.

79

The

MLC has maintained that it will ‘‘engage

in non-discriminatory treatment

towards domestic and foreign copyright

owners, CMOs and administrators,’’

80

and that it ‘‘intends to operate on a non-

discriminatory basis, and all natural and

legal persons or entities of any

nationality are welcome to register their

claims to works with the MLC.’’

81

In

addition, the MLC appears to be

planning for data collection from foreign

CMOs, as evidenced by the creation of

its Data Quality Initiative (DQI), which

‘‘provide[s] a streamlined way for music

publishers, administrators and foreign

collective management organizations

(CMOs) to compare large schedules of

their musical works’ data against The

MLC’s data . . . so that they can . . .

improve the quality of The MLC’s

data.’’

82

According to the MLC, the DQI

‘‘does not act as a mechanism for

delivering work registrations/works

data,’’ but ‘‘[m]usic publishers,

administrators and foreign CMOs may

use [Common Works Registration] to

deliver new and updated work

registrations to The MLC.’’

83

After considering the comments, the

Office concludes that to the extent

reasonably available to the MLC, it will

be beneficial for the database to include

information related to all persons or

entities that own or control the right to

license and collect royalties related to

musical works in the United States, and

that music publishing administrator and

control information would be valuable

additions. Accordingly, the proposed

rule requires the public database to

include administrator(s) or other

authorized entity(ies) who license the

musical work (or share thereof) and/or

collect mechanical royalties for such

musical work (or share thereof) in the

United States. The proposed rule would

not prevent the MLC from including

additional information with respect to

foreign CMOs. The Office solicits

comments on the proposed language,

including any specific suggestions for

adjustment.

With respect to the question

SoundExchange raises regarding works

that may reflect underclaiming and

overclaiming of shares, the Office

concludes that it may make sense for the

MLC to retain flexibility to implement

such a system as it apparently intends,

and notes that the MLC’s dispute

resolution committee may be an

appropriate forum to consider this issue

further, as part of the committee’s

charge to establish policies and

procedures related to resolution of

disputes related to ownership interests

in musical works.

84

As noted above, the

MLC ‘‘intends to mark overclaims as

such and show the percentages and total

of all shares claimed so that overclaims

and underclaims will be transparent.’’

85

5. Additional Information Related To

Identifying Musical Works and Sound

Recordings

Commenters proposed that the public

database include various other fields to

identify the musical work at issue or the

sound recording in which it is

embodied. With respect to musical

works, some commenters pointed to

fields included in the existing Common

Works Registration (‘‘CWR’’) format, and

supported inclusion of information

relating to alternate titles for musical

works,

86

whether the work utilizes

samples and medleys of preexisting

works,

87

and opus and catalog numbers

and instrumentation of classical

compositions.

88

With respect to sound

recordings, commenters suggested

inclusion of information relating to

track duration, version, and release date

of sound recording.

89

The MLC acknowledged the merits of

including these fields proposed by

commenters, recognizing ‘‘CWR as the

de facto industry standard used for

registration of claims in musical works,

and intends to use CWR as its primary

mechanism for the bulk electronic

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90

MLC Reply September NOI Comment at 38.

91

Id. at App. E; MLC April NOI Comment at 10.

92

MLC Reply September NOI Comment at App.

E.

93

MLC Ex Parte Letter #7 at 5.

94

Id.

95

The proposed rule uses the term ‘‘playing

time.’’ See U.S. Copyright Office, Interim Rule,

Music Modernization Act Notices of License,

Notices of Nonblanket Activity, Data Collection and

Delivery Efforts, and Reports of Usage and Payment,

Dkt. No. 2020–5, published elsewhere in this issue

of the Federal Register.

96

Id.

97

17 U.S.C. 115(d)(3)(E)(ii)(IV)(bb), (iii)(I)(dd)–

(ee).

98

MIC Coalition Initial September NOI Comment

at 2. See DLC Initial September NOI Comment at

20 (suggesting that including PRO affiliation ‘‘will

ensure that the [public] database is fully usable,

including as a resource for direct licensing

activities’’); see also Barker Initial September NOI

Comment at 8–9.

99

See MLC Reply September NOI Comment at 36

(pointing out that its ‘‘primary responsibility is to

engage in the administration of mechanical rights

and to develop and maintain a mechanical rights

database,’’ and that ‘‘gather[ing], maintain[ing],

updat[ing] and includ[ing] . . . performance rights

information—which rights it is not permitted to

license—would require significant effort which

could imperil [its] ability to meet its statutory

obligations with respect to mechanical rights

licensing and administration by the [license

availability date]’’); FMC Reply September NOI

Comment at 3 (‘‘[I]t’s difficult to see how including

PRO information in the MLC database could work—

as the MLC won’t be paying PROs, it’s hard to

envision what would incentivize keeping this data

accurate and authoritatively up to date.’’).

100

ASCAP & BMI Reply September NOI

Comment at 2.

101

85 FR at 22576; 17 U.S.C. 115(d)(3)(C)(iii)

(limiting administration of voluntary licenses to

‘‘only [the] reproduction or distribution rights in

musical works for covered activities’’).

102

DLC April NOI Comment at 3–4.

103

MIC Coalition April NOI Comment at 3.

104

Id. at 2.

105

CISAC & BIEM April NOI Comment at 3.

106

FMC April NOI Comment at 2.

107

MLC April NOI Comment at 10.

108

In a related rulemaking, the Office has

declined to require musical work copyright owners

to provide information related to performing rights

organization affiliation in connection with the

statutory obligation to undertake commercially

reasonably efforts to deliver sound recording

information to the MLC. U.S. Copyright Office,

Interim Rule, Music Modernization Act Notices of

License, Notices of Nonblanket Activity, Data

Collection and Delivery Efforts, and Reports of

Usage and Payment, Dkt. No. 2020–5, published

elsewhere in this issue of the Federal Register. See

also 17 U.S.C. 115(d)(3)(E)(iv).

registration of musical works data.’’

90

The MLC reported plans to include

alternative titles of the musical work,

and for sound recordings, the track

duration, version, and release date,

91

as

well as additional fields ‘‘reported to the

mechanical licensing collective as may

be useful for the identification of

musical works that the mechanical

licensing collective deems appropriate

to publicly disclose.’’

92

Regarding opus

and catalog numbers for classical

compositions, the MLC maintains that it

‘‘is working with DDEX to determine if

it is possible or appropriate to add Opus

Number and (Composer) Catalogue

Number to the data specifications.’’

93

Regarding whether the work utilizes

samples and medleys of preexisting

works, the MLC contends that

‘‘[b]ecause medleys and musical works

that sample other musical works are

unique derivative copyrighted works,

each will be included in the database as

a unique composition,’’ and that such

an approach addresses

SoundExchange’s concern because it

will ‘‘treat[ ] each medley or work that

incorporates a sample as a separate

musical work, as to which ownership

will be separately claimed and

identified.’’

94

Given the consensus of comments, the

proposed rule requires the MLC to

include the following fields in the

public database, to the extent reasonably

available to the MLC: Alternate titles for

musical works, opus and catalog

numbers of classical compositions, and

track duration,

95

version, and release

date of sound recordings. The Office has

issued an interim rule requiring digital

music providers to report the actual

playing time as measured from the

sound recording file to the MLC,

96

which the Office expects to be the value

displayed in the public musical works

database. Finally, the proposed rule

mirrors the statute by requiring the

public database to include, to the extent

reasonably available to the mechanical

licensing collective, other non-

confidential information commonly

used to assist in associating sound

recordings with musical works (for

matched musical works), and for

unmatched musical works, other non-

confidential information commonly

used to assist in associating sound

recordings with musical works, and any

additional non-confidential information

reported to the mechanical licensing

collective that may assist in identifying

musical works.

97

6. Performing Rights Organization

Affiliation

In response to the September NOI, a

few commenters maintained that the

public database should include

performing rights organization (‘‘PRO’’)

affiliation, with MIC Coalition asserting

that ‘‘[a]ny data solution must not only

encompass mechanical rights, but also

provide information regarding public

performance rights, including PRO

affiliation and splits of performance

rights.’’

98

By contrast, the MLC and FMC raised

concerns about including and

maintaining PRO affiliation in the

public database.

99

The largest PROs,

The American Society of Composers,

Authors, and Publishers (‘‘ASCAP’’) and

Broadcast Music, Inc. (‘‘BMI’’), similarly

objected that because ‘‘music

performing rights organizations such as

BMI and ASCAP all have

comprehensive databases on musical

works ownership rights, and these

databases are publicly available,’’ so

‘‘administration of data with respect to

the licensing of public performing rights

does not require government

intervention.’’

100

After evaluating these comments, in

the April NOI the Office tentatively

concluded against requiring PRO

affiliation in the public database, noting

that ‘‘[b]ecause the MMA explicitly

restricts the MLC from licensing

performance rights, it seems unlikely to

be prudent or frugal to require the MLC

to expend resources to maintain PRO

affiliations for rights it is not permitted

to license.’’

101

In response, the DLC

asked the Office to reconsider and

include PRO affiliation in the public

database.

102

The MIC Coalition

commented that ‘‘[i]ncorporating PRO

information into the musical works

database . . . will foster a wide range of

innovations in music licensing,’’

103

and

that the Office should not view ‘‘the

joint database proposed by ASCAP and

BMI as a viable alternative to the one

that’s currently being developed by the

MLC.’’

104

But CISAC &, BEIM agree

‘‘that there is no need for the MLC to

include and maintain the PRO’s

performing right information in the

database,’’

105

and FMC finds the

‘‘Office’s tentative conclusion against

requiring the MLC to include PRO

affiliation in its database is sound.’’

106

For its part, the MLC contends that it

‘‘should be afforded the opportunity to

focus on its main priority of a robust

and fulsome mechanical rights

database,’’ and not include PRO

affiliation, but that ‘‘[i]f, at some time in

the future, the MLC has the capacity and

resources to also incorporate

performance rights information, it may

undertake this task . . .’’

107

Having considered these comments,

the statutory text, and legislative

history, the Office concludes that the

mechanical licensing collective should

not be required to include PRO

affiliation in the public database.

108

As

previously noted by the Office, this

conclusion does not inhibit PRO access

or use of the database for their own

efforts, and explicitly permits bulk

access for a fee that does not exceed the

MLC’s marginal cost to provide such

access; nor does it restrict the MLC from

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17 U.S.C. 115(d)(3)(E)(v); 85 FR at 22576. See

Barker Initial September NOI Comment at 9; SONA

April NOI Comment at 6 (‘‘While SONA does not

believe this data should be mandatory, we also do

not think that the rule should prohibit a songwriter

from publicly listing PRO affiliation if he or she

believes that it could be important identifying

information.’’).

110

SoundExchange Initial September NOI

Comment at 10.

111

DLC Initial September NOI Comment at 20.

112

MLC Reply September NOI Comment at 34.

113

Id.

114

85 FR at 22576.

115

SoundExchange April NOI Comment at 4

(emphasis added). See id. at 4–5 (‘‘To pay the

proper payee for the time when usage occurred, the

MLC will need to know who is entitled to receive

royalty payments for all times after the license

availability date.’’).

116

CISAC & BIEM April NOI Comment at 3; FMC

April NOI Comment at 2; SONA April NOI

Comment at 9.

117

MLC April NOI Comment at 12.

118

MLC Ex Parte Letter #7 at 4.

119

MLC April NOI Comment at 12.

120

85 FR at 22576; 17 U.S.C. 115(d)(3)(M)(i); id.

at 115(d)(3)(D)(ix)(II)(aa).

121

17 U.S.C. 203, 304(c), 304(d).

122

Barker Initial September NOI Comment at 4.

123

MLC Reply September NOI Comment at 19,

App. at 10; see also 85 FR at 22532–33.

124

DLC Ex Parte Letter Feb. 14, 2020 (‘‘DLC Ex

Parte Letter #1’’) at 3; DLC Ex Parte Letter #1

Presentation at 15; DLC Ex Parte Letter Feb. 24,

2020 at 4; DLC Ex Parte Letter Mar. 4, 2020 at 5.

125

85 FR at 22576.

126

DLC April NOI Comment at 4 n.19; SGA April

NOI Comment at 8; SONA April NOI Comment at

2.

127

MLC April NOI Comment at 10.

128

Recording Academy April NOI Comment at 3.

optionally including such

information.

109

7. Historical Data

In response to the September NOI,

SoundExchange asserted that the public

database should ‘‘maintain and make

available historical interested party

information so it is possible to know

who is entitled to collect payments for

shares of a work both currently and at

any point in the past.’’

110

The DLC also

proposed that the public database

include ‘‘information regarding each

entity in the chain of copyright owners

and their agents for a particular musical

work’’ as well as ‘‘relational connections

between each of these entities for a

particular musical work.’’

111

The MLC

sought clarity about the DLC’s specific

proposal, suggesting ‘‘[i]t is unclear

whether the DLC . . . is referring to the

entire historical chain of title for each

musical work. If so, the MLC objects

that ‘‘such information is voluminous,

burdensome to provide and maintain,

and in this context unnecessary and

must not be required.’’

112

The MLC

stated, however, that it intends to

maintain information in its database

about ‘‘each and every entity that, at any

given point in time, owns a share of the

right to receive mechanical royalties for

the use of a musical work in covered

activities.’’

113

After considering these

comments, the Copyright Office

tentatively agreed with the MLC’s

approach to focus on current

relationships, but welcomed further

public input and noted that it did not

envision language prohibiting the MLC

from providing such historical

information.

114

In response to the April NOI,

SoundExchange reiterated its request for

the public database to include historical

information, acknowledging that it

‘‘seems reasonable’’ for the MLC not to

‘‘go out of its way to collect information

about entitlement to payment for times

before the license availability date,’’ but

discouraging an approach where ‘‘the

MLC may discard or not make publicly

available information about entitlement

to payment that . . . applies to times

after the license availability date, . . .

[because] in some cases (such as where

a service provider makes a significantly

late payment or distribution is delayed

because the copyright owners have not

agreed among themselves concerning

ownership shares) the MLC may not be

able to distribute royalties until long

after the usage occurred.’’

115

CISAC &

BIEM, FMC, and SONA agree that

historical ownership information should

be in the public database, noting that

ownership of musical works changes

over time.

116

For its part, the MLC reaffirmed its

intention to ‘‘maintain information

about each and every entity that, at any

given point in time, owns a share of the

right to receive mechanical royalties for

the use of a musical work in covered

activities,’’ and to ‘‘maintain at regular

intervals historical records of the

information contained in the

database.’’

117

The MLC also clarified

that it ‘‘will maintain an archive of data

provided to it after the license

availability date (‘LAD’) and that has

subsequently been updated or revised

(e.g., where there is a post-LAD change

in ownership of a share of a musical

work), and the MLC will make this

historic information available to the

public.’’

118

The MLC contends that ‘‘it

should be permitted to determine, in

consultation with its vendors, the best

method for maintaining and archiving

historical data to track ownership and

other information changes in its

database.’’

119

Having carefully considered this

issue, the Office proposes that the MLC

shall maintain at regular intervals

historical records of the information

contained in the public musical works

database, including a record of changes

to such database information and

changes to the source of information in

database fields, in order to allow

tracking of changes to the ownership of

musical works in the database over

time. The proposed rule adopts the

MLC’s request for flexibility as to the

most appropriate method for archiving

and maintaining such historical data to

track ownership and other information

changes in the database. As previously

noted by the Office, the MLC must

maintain all material records of the

operations of the mechanical licensing

collective in a secure and reliable

manner, and such information will also

be subject to audit.

120

8. Terminations

Title 17 allows, under certain

circumstances, authors or their heirs to

terminate an agreement that previously

granted one or more of the author’s

exclusive rights to a third party.

121

In

response to the September NOI, one

commenter suggested that to the extent

terminations of musical work grants

have occurred, the public database

should include ‘‘separate iterations of

musical works with their respective

copyright owners and other related

information, as well as the appropriately

matched recording uses for each

iteration of the musical work, and to

make clear to the public and users of the

database the appropriate version eligible

for future licenses.’’

122

Separately, as

addressed in a parallel rulemaking, the

MLC asked that the Office require

digital music providers to include server

fixation dates for sound recordings,

contending that this information will be

helpful to its determination whether

particular usage of musical works is

affected by the termination of grants

under this statutory provision.

123

The

DLC objected to this request.

124

In the April NOI, the Office sought

public input on issues that should be

considered relating to whether

termination information should be

included in the public database.

125

The

DLC, SGA, and SONA support

including information concerning the

termination of grants of rights by

copyright creators in the public

database.

126

By contrast, the MLC

contends that it ‘‘should not be required

to include in the public database

information regarding statutory

termination of musical works per

se.’’

127

The Recording Academy,

expressing concern that the Office’s

parallel rulemaking involving server

fixation dates for sound recordings

‘‘could have a substantive impact on the

termination rights of songwriters,’’

128

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Id.

130

MLC April NOI Comment at 9.

131

MLC Reply September NOI Comment at 34.

132

DLC Initial September NOI Comment at 20.

133

DLC Reply September NOI Comment at Add.

A–15–16.

134

SoundExchange Initial September NOI

Comment at 10–11.

135

The American Association of Independent

Music (‘‘A2IM’’) & RIAA Reply September NOI

Comment at 2 (asserting MLC should be required

to obtain its sound recording data from a single

authoritative source); Jessop Initial September NOI

Comment at 3 (‘‘The MLC should obtain sound

recording information from as close to the source

as possible. In practice this means from the record

label or someone directly or indirectly authorized

to manage this information for them.’’).

136

85 FR at 22576.

137

Id.

138

DLC April NOI Comment at 4.

139

ARM April NOI Comment at 3 (contending

that the public database should indicate ‘‘which

data was provided to the MLC by the actual

copyright owner or its designee, which was

provided by a DMP and which was provided some

other third party’’); FMC April NOI Comment at 2

(agreeing that public database ‘‘should include

provenance information, not just because it helps

allow for judgments about how authoritative that

data is, but because it can help writers and

publishers know where to go to correct any bad data

they discover’’); CISAC & BIEM April NOI

Comment at 3 (‘‘Submitters of information should

be identified, and when the information is derived

from copyright owners (creators, publishers, CMOs,

etc.), it should be labelled, and it should prevail

over other sources of information.’’).

140

CISAC & BIEM April NOI Comment at 3

(maintaining that ‘‘any issues should be resolved

through the MLC’s dispute resolution policy’’);

SONA April NOI Comment at 8.

141

MLC April NOI Comment at 11.

142

Id. at 12.

143

MLC Ex Parte Letter #7 at 4.

144

Id. at 2.

145

17 U.S.C. 115(d)(3)(E)(ii)(IV)(bb), (iii)(I)(dd).

asks the Office to ‘‘set aside any issue

related to termination rights and the

MLC until it conducts a full and

thorough examination of the

implications . . . for songwriters and

other authors, including an opportunity

for public comment.’’

129

Having considered these comments,

the statutory text, and legislative

history, the Office takes the position

that the mechanical licensing collective

should not be required to include

termination information in the public

database. This conclusion does not

restrict the MLC from optionally

including such information. In addition,

the Office notes that the MLC has agreed

to include information regarding

administrators that license musical

works and/or collect royalties for such

works,

130

as well as information

regarding ‘‘each and every entity that, at

any given point in time, owns a share

of the right to receive mechanical

royalties for the use of a musical work

in covered activities,’’

131

which

presumably should include updated

ownership information that may be

relevant for works that are being

exploited post-exercise of the

termination right.

9. Data Provenance

In response to the September NOI, the

DLC maintained that if the public

database includes third-party data, ‘‘it

should be labeled as such.’’

132

The DLC

provided proposed language suggesting

that for musical work copyright owner

information, the database should

indicate ‘‘whether the ownership

information was received directly from

the copyright owner or from a third

party.’’

133

SoundExchange agreed,

stating that the public database ‘‘should

identify the submitters of the

information in it, because preserving

that provenance will allow the MLC and

users of the MLC to make judgments

about how authoritative the information

is.’’

134

Others commenters noted that

for sound recordings, first-hand data is

more likely to be accurate.

135

In the April NOI, the Office noted that

while issues related to data sourcing,

confidence in data quality, accurate

copyright ownership information, and

agency or licensing arrangements, are

important, they can be nuanced, and so

‘‘the MLC may be better-suited to

explore the best way to promote

accuracy and transparency in issues

related to data provenance without such

regulatory language, including through

the policies and practices adopted by its

dispute resolution and operations

committees, and by establishing digital

accounts through which copyright

owners can view, verify, or adjust

information.’’

136

The Office sought

further public input on any issues that

should be considered relating to the

identification of data sourcing in the

public database, including whether (and

how) third-party data should be

labeled.

137

In response, the DLC asked the Office

to reconsider and include data

provenance information in database,

stating that ‘‘users of the database

should have the ability to consider

whatever information the MLC can

obtain from copyright owners, and make

their own judgments as to its reliability

based on the MLC’s identification of the

information’s source.’’

138

ARM, FMC,

and CISAC & BIEM agree that the public

database should include data

provenance information,

139

although

CISAC & BIEM and SONA contend that

regulations requiring such information

are not necessary.

140

For its part, the

MLC ‘‘agrees with the Office’s tentative

conclusion that the MLC and its

committees are better suited to establish

policies and practices . . . to meet the

goal of improving data quality and

accuracy,’’

141

and that ‘‘[t]he MLC

should be given sufficient flexibility to

determine the best and most

operationally effective way to ensure the

accuracy and quality of the data in its

database, rather than requiring it to

identify the source of each piece of

information contained therein.’’

142

The

MLC also stated that it ‘‘intends to show

the provenance of each row of sound

recording data, including both the name

of and DPID for the DMP from which

the MLC received the sound recording

data concerned,’’ and that it ‘‘intends to

put checks in place to ensure data

quality and accuracy.’’

143

For musical

works information, the MLC maintains

that it ‘‘will be sourced from copyright

owners.’’

144

After carefully reviewing these

comments, the Office agrees that the

MLC should be granted some discretion

on how to display data provenance

information in the public database.

Because the commenters generally

supported the MLC’s intent to source

musical works information from

copyright owners, data provenance

issues appear to be especially relevant

to sound recording information in the

public database. This is particularly true

given that the MLC intends to populate

sound recording information in the

public database from reports of usage, as

opposed to using a single authoritative

source (discussed below). Accordingly,

the proposed rule states that the MLC

must display data provenance

information for sound recording

information in the public database. The

Office seeks public input on this aspect

of the proposed rule.

B. Sound Recording Information and

Disclaimers or Disclosures in the Public

Musical Works Database

1. ‘‘Sound Recording Copyright Owner’’

Information

In response to the September NOI,

RIAA and individual record labels

expressed concern about which

information will populate and be

displayed to satisfy the statutory

requirement to include ‘‘sound

recording copyright owner’’ (SRCO) in

the public musical works database.

145

Specifically, RIAA explained that under

current industry practice, digital music

providers send royalties pursuant to

information received from record

companies or others releasing

recordings to DMPs ‘‘via a specialized

DDEX message known as the ERN (or

Electronic Release Notification),’’ which

is ‘‘typically populated with

information about the party that is

entitled to receive royalties (who may or

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RIAA Initial September NOI Comment at 2.

Although the RIAA’s initial September NOI

comments suggested that the ERN feed included a

field labeled sound recording copyright owner

(SRCO), upon reply, it clarified that there is no such

specific field. See A2IM & RIAA Reply September

NOI Comment at 8 n.5.

147

RIAA Initial September NOI Comment at 2.

148

Id. at 3; see id. (‘‘If database users seek out and

enter into sound recording licenses with the wrong

parties and/or make payments to the wrong

parties—because they misunderstand what the data

in the SRCO column of the MLC database actually

represents—that would negatively impact our

member companies and the artists whose

recordings they own and/or exclusively license.’’).

Those concerns were echoed in ex parte meetings

with individual record labels. Universal Music

Group (‘‘UMG’’) explained that ‘‘actual copyright

ownership is irrelevant’’ in the digital supply chain,

as ‘‘DMPs only need to know who to pay and,

maybe, who to call,’’ whereas record companies

separately track copyright ownership information.

UMG & RIAA Ex Parte Letter Dec. 9, 2019 at 2.

UMG suggested that the MLC’s inclusion of a field

labeled ‘‘sound recording copyright owner’’ might

confuse relations between the actual copyright

owner and the record label conveying information

to the DMP, where the label is functioning as a non-

copyright owner distributor through a licensing or

press and distribution (P&D) arrangement. UMG &

RIAA Ex Parte Letter at 2–3. Sony Music (‘‘Sony’’)

expressed similar concerns, suggesting that the

Office’s regulations specify how the ‘‘sound

recording copyright owner’’ line in the public

database should be labeled or defined to minimize

confusion. Sony & RIAA Ex Parte Letter Dec. 9,

2019 at 1–2.

149

SoundExchange Initial September NOI

Comment at 11–12.

150

Sony & RIAA Ex Parte Letter at 2 (noting that

‘‘DIY artists and aggregators serving that

community’’ may be most likely to populate the

DPID field); A2IM & RIAA Reply September NOI

Comment at 8–10 (identifying DPID, LabelName,

and PLine fields in relation to sound recording

copyright owner information). The LabelName

represents the ‘‘brand under which a Release is

issued and marketed. A Label is a marketing

identity (like a MusicPublisher’s ‘Imprint’ in book

publishing) and is not the same thing as the record

company which controls it, even if it shares the

same name. The control of a Label may move from

one owner to another.’’ Digital Data Exchange

(‘‘DDEX’’), DDEX Data Dictionary, http://

service.ddex.net/dd/ERN411/dd/ddex_Label.html

(last visited Sept. 1, 2020). As noted by A2IM &

RIAA, ‘‘PLine’’ is ‘‘[a] composite element that

identifies the year of first release of the Resource

or Release followed by the name of the entity that

owns the phonographic rights in the Resource or

Release.... In the case of recordings that are

owned by the artist or the artist’s heirs but are

licensed to one of [their] member companies, the

PLine field typically lists those individuals’ names,

even though they generally are not actively

involved in commercializing those recordings.’’

A2IM & RIAA Reply September NOI Comment at

9 (citing Music Business Association and DDEX,

DDEX Release Notification Standard Starter Guide

for Implementation 28 (July 2016), https://

kb.ddex.net/download/attachments/327717/

MusicMetadata_DDEX_V1.pdf). DPID ‘‘is an

alphanumeric identifier that identifies the party

delivering the DDEX message,’’ and ‘‘is also

generally the party to whom the DMP sends

royalties for the relevant sound recording.’’ Id. at 8.

151

85 FR at 22577.

152

ARM April NOI Comment at 4. A2IM & RIAA

initially stated that ‘‘[b]ecause the PLine party is,

in many cases, an individual who would not want

to be listed in a public database and is often not

the party who commercializes the recording, the

regulations should prohibit that party name from

appearing in the public-facing database.’’ A2IM &

RIAA Reply September NOI Comment at 9. The

Office understands that ARM, of which A2IM and

RIAA are members, does not object to PLine being

displayed in the public musical works database. For

DPID, the Office also understands that ARM does

not object to including the DPID party’s name in the

public database, but does ‘‘object to the numerical

identifier being disclosed, as the list of assigned

DPID numbers is not public and disclosing

individual numbers (and/or the complete list of

numbers) could have unintended consequences.’’

ARM NPRM Comment at 10, U.S. Copyright Office

Dkt. No. 2020–5, available at https://

beta.regulations.gov/document/COLC-2020-0005-

0001.

153

MLC April NOI Comment at 13. See also

Digital Data Exchange (‘‘DDEX’’) NPRM Comment at

1–2, U.S. Copyright Office Dkt. No. 2020–5,

available at https://beta.regulations.gov/document/

COLC-2020-0005-0001 (‘‘[T]he DPID, although a

unique identifier and in relevant instances an

identifier of ‘‘record companies’’, does not identify

sound recording copyright owners. It only identifies

the sender and recipient of a DDEX formatted

message and, in certain circumstances, the party

that the message is being sent on behalf of.’’).

154

DLC Letter July 13, 2020 at 10 (stating that

while converting the DPID numerical code into the

party’s actual name of reporting purposes ‘‘is

conceptually possible’’ for DMPs, ‘‘it would require

at least a substantial effort for some services’’

(around one year of development), and ‘‘would be

an impracticable burden for some others’’).

155

Recording Academy April NOI Comment at 3.

Compare ARM April NOI Comment at 5 (stating

‘‘there is no single field in the ERN that can

simultaneously tell the public who owns a work,

who distributes the work and who controls the right

to license the work’’).

may not be the actual legal copyright

owner), because that is the information

that is relevant to the business

relationship between record labels and

DMPs.’’

146

In short, information in ‘‘the

ERN message is not meant to be used to

make legal determinations of

ownership.’’

147

RIAA noted the

potential for confusion stemming from a

field labelled ‘‘sound recording

copyright owner’’ in the public database

being populated by information taken

from the labels’ ERN messages—for both

the MLC (i.e., the MLC could

‘‘inadvertently misinterpret or misapply

the SRCO data’’), and users of the free,

public database (i.e., they could

mistakenly assume that the so-called

‘‘sound recording copyright owner’’

information is authoritative with respect

to ownership of the sound recording).

148

Separate but relatedly, SoundExchange

noted that it ‘‘devotes substantial

resources’’ to tracking changes in sound

recording rights ownership, suggesting

that inclusion of a SRCO field ‘‘creates

a potential trap for the unwary.’’

149

A2IM & RIAA and Sony suggested that

three fields—DDEX Party Identifier

(DPID), LabelName, and PLine—may

provide indicia relevant to determining

sound recording copyright

ownership.

150

In the April NOI, the Copyright Office

sought public comment regarding which

data should be in the public database to

satisfy the statutory requirement,

including whether to require inclusion

of multiple fields to lessen the

perception that a single field contains

definitive data regarding sound

recording copyright ownership

information.

151

ARM states that it does

not object ‘‘to a regulation that requires

the MLC to include [DDEX Party

Identifier (DPID), LabelName, and

PLine] in the Database, provided the

fields are each labeled in a way that

minimizes confusion and/or

misunderstanding,’’ as ‘‘this will lessen

the perception that a single field

contains definitive data regarding sound

recording copyright ownership

information.’’

152

The MLC ‘‘has no

issue with including LabelName and

PLine information in the public

database to the extent the MLC receives

that information from the DMPs,’’ but

expressed concern about including

DPID because it ‘‘does not identify

sound recording copyright owner, but

rather, the sender and/or recipient of a

DDEX-formatted message.’’

153

The DLC

states that LabelName and Pline ‘‘are

adequate on their own,’’ as DPID ‘‘is not

a highly valuable data field,’’ and

contends that the burden of converting

DPID numerical codes into parties’

names (to address ARM’s concern about

displaying the numerical identifier)

outweighs any benefit of including DPID

in the public database.

154

The Recording

Academy, although maintaining that

‘‘DDEX ERN information is an important

source of reliable and authoritative data

about a sound recording,’’ contends that

‘‘many of the fields serve a distinct

purpose in the digital supply chain and

do not satisfy the ‘sound recording

copyright owner’ field required in the

MLC database.’’

155

Having considered all relevant

comments on this issue, it seems that

DPID does not have as strong a

connection to the MLC’s matching

efforts or the mechanical licensing of

musical works as the other fields

identified as relevant to the statutory

requirement to list a sound recording

copyright owner. In light of this, and the

commenters’ concerns, the proposed

rule would not require the MLC to

include DPID in the public database. In

case the MLC later decides to include

DPID in the public database, given the

confidentiality considerations raised,

the proposed rule states that the DPID

party’s name may be displayed, but not

the numerical identifier. In addition,

because industry practice has not

included a single data field to provide

definitive data regarding sound

recording copyright ownership, to

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156

As the MMA also requires ‘‘sound recording

copyright owner’’ to be reported by DMPs to the

mechanical licensing collective in monthly reports

of usage, the Office has separately issued an interim

rule regarding which information should be

included in such reports to satisfy this requirement.

Because industry practice has not included a single

data field to provide definitive data regarding sound

recording copyright ownership, that rule proposes

DMPs can satisfy this obligation by reporting

information in the following fields: LabelName and

PLine. See also U.S. Copyright Office, Interim Rule,

Music Modernization Act Notices of License,

Notices of Nonblanket Activity, Data Collection and

Delivery Efforts, and Reports of Usage and Payment,

Dkt. No. 2020–5, published elsewhere in this issue

of the Federal Register.

157

MLC Ex Parte Letter #7 at 4.

158

DDEX NPRM Comment at 1, U.S. Copyright

Office Dkt. No. 2020–5, available at https://

beta.regulations.gov/document/COLC-2020-0005-

0001.

159

See ARM April NOI Comment at 5 (suggesting

that ‘‘LabelName’’ be described as ‘‘U.S. Releasing

Party (if available),’’ and that ‘‘PLine’’ be described

as ‘‘Sound Recording Owner of Record (who may

not be the party that commercializes the recording;

note that this party may change over time)’’).

160

The same limitation applies if the MLC elects

to include DPID information.

161

MLC Ex Parte Letter #7 at 4.

162

RIAA Initial September NOI Comment at 10.

163

A2IM & RIAA Reply September NOI Comment

at 9 (urging Office to require ‘‘a strong, prominent

disclaimer’’ to ‘‘make[] it explicitly clear that the

database does not purport to provide authoritative

information about sound recording copyright

ownership’’); CISAC & BIEM Reply September NOI

Comment at 8 (‘‘CISAC and BIEM also encourage

the use of appropriate disclaiming language in

regard to the content of the database, where

necessary.’’); SoundExchange Initial September NOI

Comment at 12 (‘‘At a minimum, the MLC Database

should at least include a disclaimer that the MLC

Database is not an authoritative source of sound

recording rights owner information.’’).

164

MLC Reply September NOI Comment at 36–

37.

165

ARM April NOI Comment at 6–7; Recording

Academy April NOI Comment at 3–4.

166

MLC April NOI Comment at 13.

167

ARM April NOI Comment at 6–7; Recording

Academy April NOI Comment at 3–4. The RIAA has

designated SoundExchange as the authoritative

source of ISRC data in the U.S. ARM Ex Parte Letter

July 27, 2020 at 2; RIAA, RIAA Designates

SoundExchange as Authoritative Source of ISRC

Data in the United States (July 22, 2020), https://

www.riaa.com/riaa-designates-soundexchange-as-

authoritative-source-of-isrc-data-in-the-united-

states/.

168

See Recording Academy April NOI Comment

at 3 (‘‘support[ing] the use of a disclaimer that

would properly contextualize the use of ‘sound

recording copyright owner’ and safeguard the legal

rights of artists’’).

169

17 U.S.C. 115(d)(3)(E)(i).

170

Id. at 115(d)(3)(E)(ii)(IV)(bb), (iii)(I)(dd).

171

ARM NPRM Comment at 6, U.S. Copyright

Office Dkt. No. 2020–5, available at https://

beta.regulations.gov/document/COLC-2020-0005-

0001. See also SoundExchange Initial September

NOI Comment at 12 (‘‘[T]he MLC is not in a good

position to capture or track changes in sound

recording rights ownership, because it does not

have a direct relationship with sound recording

copyright owners like SoundExchange does, nor

does it have an ongoing business need to ensure

that sound recording rights information is always

accurate and up-to-date.’’); Jessop Initial September

satisfy the statute’s requirement to

include information regarding ‘‘sound

recording copyright owner,’’ the

proposed rule requires the MLC to

include data for both LabelName and

PLine in the public database, to the

extent reasonably available.

156

In light

of numerous comments expressing

similar views on this subject, the Office

tentatively concludes that inclusion of

these two fields would adequately

satisfy the statutory requirement by

establishing an avenue for the MLC to

include relevant data that is transmitted

through the existing digital supply

chain, and thus reasonably available for

inclusion in the public database.

As for labeling these fields, the MLC

contends that ‘‘the names or labels

assigned to these fields in the public

database is not ultimately the MLC’s

decision,’’ claiming that ‘‘it is ultimately

at DDEX’s discretion.’’

157

The Office

strongly disagrees with this notion.

While DDEX ‘‘standardizes the formats

in which information is represented in

messages and the method by which the

messages are exchanged’’ ‘‘along the

digital music value chain’’

158

(e.g.,

between digital music providers and the

MLC), DDEX does not control the public

database or how information is

displayed and/or labeled in the public

database. While the Office wishes to

afford the MLC some flexibility in

administering the public database, and

thus tentatively declines to regulate the

precise names of these fields,

159

due to

the comments noted above, the

proposed rule precludes the MLC from

labeling either the PLine or LabelName

field ‘‘sound recording copyright

owner,’’ and requires the MLC to

consider industry practices when

labeling fields in the public database to

reduce the likelihood of user

confusion.

160

The Office appreciates the

MLC’s intention to ‘‘make available in

the database a glossary or key, which

would include field descriptors.’’

161

The Office specifically encourages the

MLC to consider ARM’s labeling

suggestions with respect to the PLine

and LabelName fields.

2. Disclaimer

Relatedly, the Office received

persuasive comments requesting that

the MLC be required to include a

conspicuous disclaimer regarding sound

recording copyright ownership

information in its database. For

example, in response to the September

NOI, RIAA suggested that the MLC

should be required to ‘‘include a clear

and conspicuous disclaimer on the

home screen’’ of the public database

that it does not purport to provide

authoritative information regarding

sound recording copyright owner

information.

162

A2IM & RIAA, CISAC &

BIEM, and SoundExchange agreed that

the public database should display such

a disclaimer.

163

And the MLC itself

agreed to display a disclaimer that its

database should not be considered an

authoritative source for sound recording

information.

164

Subsequent comments

in response to the April NOI similarly

pushed for such a disclaimer,

165

and the

MLC reiterated its intention to include

a disclaimer that the public database is

not an authoritative source for sound

recording information.

166

Both ARM

and the Recording Academy further

suggested that the disclaimer include a

link to SoundExchange’s ISRC Search

database (located at https://

isrc.soundexchange.com).

167

In light of the comments received

urging a disclaimer, and the fact that no

single field may indicate sound

recording copyright ownership, the

proposed rule requires the MLC to

include in the public-facing version of

the musical works database a

conspicuous disclaimer that states that

the database is not an authoritative

source for sound recording information,

and explains the labeling of information

in the database related to sound

recording copyright owner, including

the ‘‘LabelName’’ and ‘‘PLine’’ fields.

168

The proposed rule would not require

that the disclaimer include a link to

SoundExchange’s ISRC Search database,

though it certainly does not prohibit

such inclusion.

3. Populating and Deduping Sound

Recording Information in the Public

Musical Works Database

The statute requires the MLC to

‘‘establish and maintain a database

containing information relating to

musical works (and shares of such

works) and, to the extent known, . . .

the sound recordings in which the

musical works are embodied.’’

169

As

noted, for both matched and unmatched

musical works, the public database must

include, to the extent reasonably

available to the MLC, ‘‘identifying

information for sound recordings in

which the musical work is

embodied.’’

170

Throughout this rulemaking and

parallel rulemakings, commenters have

expressed concern about the MLC using

non-authoritative source(s) to populate

the sound recording information in the

public database. For example, ARM

expressed concern about ‘‘ensuring that

all sound recording data that ultimately

appears in the MLC’s public-facing

database is as accurate as possible and

is taken from an authoritative source

(e.g., SoundExchange),’’

171

and that

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NOI Comment at 3 (‘‘The MLC should obtain sound

recording information from as close to the source

as possible. In practice this means from the record

label or someone directly or indirectly authorized

to manage this information for them.’’). As noted

above, RIAA recently designated SoundExchange as

the authoritative source of ISRC data in the United

States. ARM Ex Parte Letter July 27, 2020 at 2;

RIAA, RIAA Designates SoundExchange as

Authoritative Source of ISRC Data in the United

States (July 22, 2020), https://www.riaa.com/riaa-

designates-soundexchange-as-authoritative-source-

of-isrc-data-in-the-united-states/.

172

ARM Ex Parte Letter July 27, 2020 at 1. See

also ARM April NOI Comment at 3 (‘‘[I]t is critical

that the Database not disseminate unverified data,

whether received from DMPs in their reports of

usage or from other third-party sources.’’).

173

A2IM & RIAA Reply September NOI Comment

at 3. See SoundExchange Initial September NOI

Comment at 4 (noting its ‘‘firm determination not

to mix potentially suspect data provided by

licensees with the authoritative data provided by

rights owners in its repertoire database’’). See also

Music Reports Initial September NOI Comment at

3 (‘‘[A] row of sound recording metadata provided

by one DMP in relation to a discrete sound

recording may differ from the row of metadata a

second DMP provides in relation to the same sound

recording, with additional or different data fields or

identifiers unique to that DMP.’’).

174

DLC Reply September NOI Comment at 10.

175

DLC Ex Parte Letter Mar. 4, 2020 at 2.

176

MLC NPRM Comment at 11–12, U.S.

Copyright Office Dkt. No. 2020–5, available at

https://beta.regulations.gov/document/COLC-2020-

0005-0001.

177

MLC Reply September NOI Comment at 11

n.7.

178

MLC Initial September NOI Comment at 24.

179

MLC Ex Parte Letter #7 at 2.

180

Id.

181

Id. at 3.

182

U.S. Copyright Office, Interim Rule, Music

Modernization Act Notices of License, Notices of

Nonblanket Activity, Data Collection and Delivery

Efforts, and Reports of Usage and Payment, Dkt. No.

2020–5, published elsewhere in this issue of the

Federal Register. For some fields, the interim rule

provides for a one-year transition period for DMPs

that are not currently set up to provide this data

unaltered from what was provided by the sound

recording copyright owner or licensor.

183

See SoundExchange Initial September NOI

Comment at 5 (‘‘[T]he success of the MLC Database

. . . will depend on it having sufficiently

comprehensive data of sufficiently high quality that

it will be respected and used throughout the

industry.’’); RIAA Initial September NOI Comment

at 11 (asserting that record labels ‘‘anticipate

making frequent use of the MLC database’’).

184

See SoundExchange NPRM Comment at 5,

U.S. Copyright Office Dkt. No. 2020–5, available at

https://beta.regulations.gov/document/COLC-2020-

0005-0001 (‘‘Reporting by digital service providers

should be viewed primarily as a means of

identifying the works used by the service, rather

than as a way for the MLC to learn about ownership

and other characteristics of those works.’’).

‘‘the MLC not propagate non-

authoritative sound recording data in its

public-facing database and outward

reporting.’’

172

Similarly, ARM members

RIAA and A2IM contend that ‘‘the MLC

should be required to build its database

from authoritative data that is obtained

from copyright owners or their

designated data providers,’’ a

consideration echoed by other

commenters representing sound

recording interests.

173

Though raised in

the context of data collection by DMPs,

as opposed to populating the public

database, the DLC agrees with having

the MLC obtain sound recording

information from a single, authoritative

source, such as SoundExchange,

because ‘‘[w]ith record labels acting as

the primary and authoritative source for

their own sound recording metadata, the

MLC could then rely on only a single (or

limited number of) metadata field(s)

from licensees’ monthly reports of usage

to look up the sound recordings in the

MLC database (e.g., an ISRC or digital

music provider’s unique sound

recording identifier that would remain

constant across all usage reporting).’’

174

The DLC further maintains that ‘‘the

MLC’s suggestion to obtain disparate

sound recording data from every digital

music provider and significant non-

blanket licensee is far less efficient than

obtaining it from a single source like

SoundExchange.’’

175

By contrast, the MLC asserts that

‘‘[t]hird-party data from SoundExchange

or another ‘authoritative source’ cannot,

by definition, be ‘authoritative’ as to

particular sound recordings made

available through the DMP’s service,

unless and until the DMP compares the

third-party data to its own data to match

the third-party sound recording

database to the DMP’s database of tracks

streamed.’’

176

While the MLC has

previously stated that it ‘‘intends to use

SoundExchange as a valuable source of

information for sound recording

identifying information’’ (but that a

regulation ‘‘requiring SoundExchange as

a single source would be . . .

unnecessarily limiting’’

177

), the MLC

also contends that ‘‘much of the

information [it] believes is necessary to

build and maintain a useful database is

consistent with the data the MLC

believes should be provided by the

DMPs in their [notices of license],

through their data collection efforts, and

through their usage reporting (including

the reports of usage).’’

178

The MLC

maintains that ‘‘receiving from DMPs

the unaltered sound recording data they

originally received from the

corresponding sound recording owners

[in reports of usage] would both

improve the MLC’s ability to match

musical works to sound recordings, as

the MLC would have fewer metadata

matches to make (i.e., between musical

works and the unaltered data for an

associated sound recordings), and

would better allow the MLC to ‘roll up’

sound recording data under entries that

are more likely to reflect more

‘definitive’ versions of that sound

recording data (i.e., the unaltered data

originally provided by the sound

recording owners).’’

179

The MLC further

states that ‘‘for uses where the sound

recording has not yet been matched to

a musical work, the sound recording

data received from DMPs will be used

to populate the database, as that is the

only data the MLC will have for such

uses,’’ and that ‘‘[f]or uses where the

sound recording has been matched but

all musical work ownership shares have

not been claimed and are not known,

the database will contain the sound

recording data received from DMPs,

organized and displayed under each

individual musical work to which the

MLC matched that sound recording

usage data.’’

180

For ‘‘sound recordings

that are matched to a specific musical

work and for sound recordings that are

unmatched, the MLC intends to include

sound recording information in the

disparate forms received from the DMPs

that provided that information.’’

181

Having carefully considered this issue

in light of the statute and legislative

history, the Office invites the MLC to

take a step back as it assesses how it

will populate sound recording

information in the public database.

Although the Office has, separately,

adopted an interim rule that provides a

method for the MLC to generally receive

certain data fields in unaltered form that

it has identified as being useful for

matching, it is not foregone that the

same demands must drive display

considerations with respect to the

public database, particularly for

matched works.

182

First, while perhaps

not authoritative (hence the use of the

disclaimer, as discussed above), the

Office believes the MMA anticipates a

general reliability of the sound

recording information appearing in the

public database.

183

The MLC’s

observation that data from

SoundExchange is not ‘‘authoritative’’

with respect to usage of recordings,

because only reports of usage provide

evidence as to which sound recordings

were actually streamed through a DMP’s

service, does not seem dispositive.

While it may be true that reports of

usage are the better indicators of which

sound recordings were actually

streamed, the public database is not

necessarily meant to serve that same

function.

184

The statute requires the

public database to contain information

relating to ‘‘the sound recordings in

which the musical works are

embodied,’’ which can reasonably be

read as information to identify the

sound recordings in which musical

works are embodied, regardless of

whether they were streamed pursuant to

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185

See 17 U.S.C. 115(d)(3)(E)(i), (ii)(IV)(bb),

(iii)(I)(dd).

186

A2IM & RIAA Reply September NOI Comment

at 2.

187

See U.S. Copyright Office, Interim Rule,

Royalty Reporting and Distribution Obligations of

the Mechanical Licensing Collective, Dkt. No. 2020–

6, published elsewhere in this issue of the Federal

Register.

188

See SoundExchange NPRM Comment at 9,

https://beta.regulations.gov/document/COLC-2020-

0003-0001 (expressing concern about relying on

DMP reports of usage ‘‘as a primary source of the

information about musical works and sound

recordings that will be reported on publisher

royalty statements’’).

189

17 U.S.C. 115(d)(3)(E)(v).

190

MLC Letter June 15, 2020 at 3 n.3.

191

Id.

192

Id. at 4; MLC Ex Parte Letter #7 at 2 (‘‘[F]or

sound recordings that are matched to a specific

musical work and for sound recordings that are

unmatched, the MLC intends to include sound

recording information in the disparate forms

received from the DMPs that provided that

information. The MLC intends to show the

provenance of each such row of sound recording

data (i.e., the DMP from which the MLC received

the sound recording data concerned), including

both the name of the DMP and the DPID for that

DMP.’’).

193

MLC Letter June 15, 2020 at 5.

194

See U.S. Copyright Office, Interim Rule, Music

Modernization Act Notices of License, Notices of

Nonblanket Activity, Data Collection and Delivery

Efforts, and Reports of Usage and Payment, Dkt. No.

2020–5, published elsewhere in this issue of the

Federal Register.

195

17 U.S.C. 115(d)(3)(E)(vi).

196

Id. at 115(d)(3)(E)(v).

197

Id.

198

H.R. Rep. No. 115–651, at 8; S. Rep. No. 115–

339, at 8; Conf. Rep. at 7.

199

H.R. Rep. No. 115–651, at 8; S. Rep. No. 115–

339, at 8–9; Conf. Rep. at 7.

200

H.R. Rep. No. 115–651, at 8; S. Rep. No. 115–

339, at 9; Conf. Rep. at 7.

201

DLC Initial September NOI Comment at 21.

202

Id.

203

DLC Reply September NOI Comment at 26.

disparate attendant metadata or not.

185

As RIAA explains, ‘‘member labels vary

the metadata they send the different

DMPs in order to meet the services’

idiosyncratic display requirements,’’

which if passed to the MLC even in

unaltered form, would result in the MLC

‘‘still receiv[ing] conflicting data that it

will have to spend time and resources

reconciling.’’

186

Populating certain

fields in the public database from

reports of usage instead of from an

authoritative, normalized source thus

may increase the likelihood of

inaccurate or confusing sound recording

information in the database. Second, the

MLC must issue monthly royalty reports

to musical copyright owners, which will

include information about the sound

recordings in which their musical works

are embodied.

187

Inaccuracies or

confusion in the public database

regarding sound recording information

may translate into inaccuracies in

royalty statements to musical work

copyright owners.

188

Finally, the statute

requires the MLC to grant digital music

providers bulk access to the public

database free of charge,

189

which seems

less meaningful if bulk access were to

mean regurgitating the same information

from reports of usage back to digital

music providers.

While the proposed regulatory

language does not address this aspect,

commenters may address this topic in

their responses. Commenters may

consider whether their concerns are

heightened, or perhaps assuaged, by the

MLC’s belief that deduplicating sound

recording records, or cross-matching

sound recording data, is ‘‘outside the

MLC’s mandate.’’

190

Specifically, the

MLC maintains that ‘‘[t]he workable

approach to deduplicating DMP audio

would be for DMPs to pre-match their

data against an authoritative source of

sound recording data and audio, or

digitally match their audio against an

authoritative database of sound

recording audio, and then provide the

unique ID field for the audio in that

authoritative audio database, along with

access for the MLC to the audio from the

authoritative database.’’

191

For both the

public database and claiming portal, the

MLC anticipates that for unmatched

musical works, there will be separate

records for each unmatched use (i.e.,

separate records for each stream of a

sound recording embodying the

unmatched musical work).

192

The MLC

does, however, intend to match multiple

sound recordings to the same musical

work in the public database and ‘‘list[ ]

all of those sound recordings together as

associated with the musical work’’; but

observes that ‘‘it is the additional step

of having the MLC be the arbiter of

which sound recordings are ‘the same,’

as opposed to just reflecting which ones

match to the same musical work

through similar metadata, that can be

problematic.’’

193

The Office notes that

as DMPs will be able to satisfy their

section 115(d)(4)(B) obligations to

‘‘engage in good-faith, commercially

reasonable efforts to obtain’’ sound

recording information from sound

recording copyright owners by arranging

for the MLC to receive data directly

from an authoritative source (e.g.,

SoundExchange),

194

it may be unlikely

that DMPs pre-match their data as

proposed by the MLC.

C. Access to Information in the Public

Musical Works Database

As noted above, the statute directs the

Copyright Office to ‘‘establish

requirements by regulations to ensure

the usability, interoperability, and usage

restrictions of the [public] musical

works database.’’

195

The database must

‘‘be made available to members of the

public in a searchable, online format,

free of charge.’’

196

The mechanical

licensing collective must make the data

available ‘‘in a bulk, machine-readable

format, through a widely available

software application,’’ to digital music

providers operating under valid notices

of license, compliant significant

nonblanket licensees, authorized

vendors of such digital music providers

or significant nonblanket licensees, and

the Copyright Office, free of charge, and

to ‘‘[a]ny other person or entity for a fee

not to exceed the marginal cost to the

mechanical licensing collective of

providing the database to such person or

entity.’’

197

The legislative history

stresses the importance of the database

and making it available to ‘‘the public

without charge, with the exception of

recovery of the marginal cost of

providing access in bulk to the

public.’’

198

It adds that ‘‘[i]ndividual

lookups of works shall be free although

the collective may implement

reasonable steps to block efforts to

bypass the marginal cost recovery for

bulk access if it appears that one or

more entities are attempting to

download the database in bulk through

repeated queries.’’

199

And it further

states that ‘‘there shall be no

requirement that a database user must

register or otherwise turn over personal

information in order to obtain the free

access required by the legislation.’’

200

1. Method of Access

In response to the September NOI, the

DLC maintained that the mechanical

licensing collective should not be

required to provide more than ‘‘[b]ulk

downloads (either of the entire database,

or of some subset thereof) in a flat file

format, once per week per user,’’ and

‘‘[o]nline song-by-song searches to query

the database, e.g., through a

website.’’

201

The DLC also contended

that ‘‘it would be unreasonable for

digital music providers and significant

nonblanket licensees to foot the bill for

database features that would only

benefit entities or individuals who are

not paying a fair share of the MLC’s

costs,’’

202

and that application

programming interfaces (‘‘APIs’’) are

‘‘not needed by digital music providers

and significant nonblanket

licensees.’’

203

Multiple commenters disagreed with

the DLC, asserting that real-time access

to the public database—not merely a

weekly file—is necessary to meet the

goals of the statute. For example,

SoundExchange asserted that failure to

provide real-time access ‘‘could unfairly

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204

SoundExchange Reply September NOI

Comment at 9. See also id. at 4–5 (stating that

‘‘[w]eekly downloads of a copy of the database are

distinctly different and less useful than real-time

access to current data,’’ and noting that the MLC

will be making constant updates and thus a weekly

download would quickly become out of date).

205

A2IM & RIAA Reply September NOI Comment

at 7.

206

FMC Reply September NOI Comment at 3

(concurring with SoundExchange’s

recommendations about API access, ‘‘including the

recommendations that API access include unique

identiÉers, catalog lookup, and fuzzy searching’’);

Recording Academy Initial September NOI

Comment at 4 (‘‘ensuring that the database has a

user-friendly API and ‘machine-to-machine’

accessibility is important to its practical usability’’);

MAC Initial September NOI Comment at 2

(asserting that having API access and ensuring

interoperability ‘‘with other systems is the best way

to make certain the MLC database becomes part of

the overall music licensing ecosystem’’). See also

RIAA Initial September NOI Comment at 11 (‘‘To

facilitate efficient business-to-business use of the

MLC database, the regulations should require the

MLC to offer free API access to registered users of

the database who request bulk access.’’);

SoundExchange Reply September NOI Comment at

4–5, 8 (challenging the DLC’s assertion that

providing APIs would be financially burdensome,

stating that ‘‘it is not obvious that there would be

a significant cost difference between providing full

API access and the diminished access the DLC

describes’’).

207

85 FR at 22578.

208

Id. See 17 U.S.C. 115(d)(3)(E)(v); see also

RIAA Initial September NOI Comment at 11

(asserting that record labels ‘‘anticipate making

frequent use of the MLC database’’); MIC Coalition

Initial September NOI Comment at 3 (‘‘The

opaqueness of the current music marketplace

creates uncertainty that disproportionately harms

small artists and independent publishers and stifles

innovation. All stakeholders in the music

marketplace benefit when current and accurate

information about copyright ownership is easily

accessible.’’).

209

SoundExchange April NOI Comment at 5.

210

SoundExchange Ex Parte Letter Sept. 1, 2020

at 1.

211

CISAC & BIEM April NOI Comment at 3

(‘‘Updated information in the database is crucial,

therefore, CISAC and BIEM suggest supporting real-

time access to ensure DSPs have the correct

information to properly identify works.’’); FMC

April NOI Comment at 2 (‘‘We appreciate the

Office’s clear acknowledgment that real-time access

is a priority, but are somewhat puzzled by the

reluctance to require APIs. Requiring API access

and interoperability doesn’t limit flexibility—done

right, it enables flexibility.’’); ARM April NOI

Comment at 7 (asserting that ‘‘the MLC must offer

bulk access that occurs in real time, in a machine-

readable format where the data is transferred via a

programmable interface’’).

212

ARM April NOI Comment at 7.

213

Id. at 8.

214

MLC April NOI Comment at 14; DLC April

NOI Comment at 5.

215

MLC April NOI Comment at 14; MLC April

NOI Comment at 14 & n.8.

216

MLC Ex Parte Letter #7 at 6.

217

Music Reports April NOI Comment at 4. Music

Reports also asks the Office to ‘‘consider requiring

the MLC to review such protocols every two years

to determine whether newer protocols have been

widely adopted.’’ Id. Because digital music

providers, significant nonblanket licensees, and

third parties may base their business processes on

the format in which the mechanical licensing

collective provides bulk access to the public

database, the Office is hesitant to require

reevaluation of that format every two years.

distort competition for musical work

license administration services by

giving the MLC and its vendors

preferred access to current data,’’ and

that the Office should ‘‘maintain[ ] a

level playing field in the market for

musical work license administration

services.’’

204

A2IM & RIAA noted that it

would be ‘‘damaging to the entire music

ecosystem for third parties to utilize

stale data, especially if they use it in

connection with some sort of public-

facing, data-related business or to drive

licensing or payment decisions.’’

205

Further, FMC, MAC, and the Recording

Academy also all stressed the

importance of real-time access to the

public database through APIs.

206

In its April NOI, the Office tentatively

declined to regulate the precise format

in which the MLC provides bulk access

to its database (e.g., APIs), so as to

provide the MLC flexibility as

technology develops in providing

database access.

207

The Office noted,

however, that the MMA’s goals—to have

the public database serve as an

authoritative source of information

regarding musical work ownership

information, to provide transparency,

and to be used by entities other than

digital music providers and significant

nonblanket licensees—‘‘support[ed]

real-time access’’ to the public database,

‘‘either via bulk access or online song-

by-song searches.’’

208

In response, SoundExchange

maintains that bulk access to the public

database should be provided via an API,

though acknowledging that ‘‘[i]t does

not seem necessary for the Office to

regulate technical details of how the

MLC implements an API.’’

209

SoundExchange contends that to

‘‘ensure level access to the database, it

must be made available via real-time,

bulk access,’’ that ‘‘only a robust

Application Programming Interface can

deliver real-time results and achieve the

industry-wide benefits of the musical

works database contemplated by the

MMA,’’ and that ‘‘[t]he use of APIs in

modern software architectures is a

commonly widespread best practice,

and the level of effort behind their

implementation is generally low and

can be measured in weeks or even days

depending on the chosen database

technology.’’

210

CISAC & BIEM, FMC,

and ARM support real-time bulk access

to the public database,

211

with ARM

stating that ‘‘[i]t is hard to imagine any

way the MLC could [offer bulk access

that occurs in real time, in a machine-

readable format where the data is

transferred via a programmable

interface] short of offering API

access.’’

212

ARM also urges the Office to

‘‘require the MLC to offer API access

now, while permitting it to shift to other

bulk-access technical solutions if and

when those become widespread within

the relevant industries’’—but ‘‘[s]hould

the Office decline to require API

access,’’ ARM asks that the Office

‘‘require some form of bulk access and

[ ] specify that the bulk-access solution

provide real-time access in a machine-

readable form via a programmable

interface.’’

213

Both the MLC and DLC agree with the

Office’s tentative decision not to

regulate the precise format in which the

mechanical licensing collective must

provide bulk access to the public

database, but rather provide the

collective flexibility as technology

develops.

214

The MLC further

emphasizes its commitment ‘‘to

fulfilling this important requirement,’’

and that it is ‘‘working with DDEX and

its members on the format for

publishing data to ensure it is useful to

the wide variety of constituents.’’

215

In

addition, the MLC maintains that it

‘‘does plan to provide bulk access to the

public data and will determine how best

to do so once it has completed its initial

development and rollout of the portal,’’

and that ‘‘one of the solutions the MLC

is contemplating is to provide bulk

access to the publicly-available data via

an API.’’

216

Music Report contends that

the Office’s regulations should ‘‘not

require any specific file delivery

protocols, but rather state general

principles and standards to which the

MLC must be held,’’ such as ‘‘bulk,

machine-readable data access to eligible

parties ‘via any process for bulk data

management widely adopted among

music rights administrators,’ ’’ which

could include ‘‘flat-file, API, and XML

protocols, but could in future also

include distributed ledger

protocols.’’

217

Having carefully considered this

issue, the Office proposes that the MLC

shall make the musical works database

available to members of the public in a

searchable, real-time, online format, free

of charge. Regarding bulk access, the

Office is inclined to agree that the MLC

should—at least initially, due to its

start-up nature—have some discretion

regarding the precise format in which it

provides bulk access to the public

database. The Office is mindful,

however, of the overwhelming desire for

the MLC to provide bulk access through

APIs from a broad swatch of

organizations representing various

corners of the music ecosystem.

Accordingly, the proposed rule states

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A2IM & RIAA Reply September NOI Comment

at 7; see also id. (contending that otherwise third-

party businesses ‘‘would be able to access that data

at a highly subsidized, below-market price’’).

219

Id. at 8.

220

85 FR at 22579; see Conf. Rep. at 7 (‘‘Given

the importance of this database, the legislation

makes clear that it shall be made available to the

Copyright Office and the public without charge,

with the exception of recovery of the marginal cost

of providing access in bulk to the public.’’); see also

Music Reports Initial September NOI Comment at

5 (‘‘Music Reports notes that the marginal cost of

automated daily data delivery protocols is relatively

trivial, and calls upon the Office to ensure that such

automated delivery be made available upon the first

availability of the [public] database, and that the fee

schedule scrupulously adhere to the ‘marginal cost’

standard.’’).

221

ARM April NOI Comment at 9.

222

Music Reports April NOI Comment at 7.

223

Id. at 8; see also Music Reports Initial

September NOI Comment at 5 (‘‘Music Reports

notes that the marginal cost of automated daily data

delivery protocols is relatively trivial, and calls

upon the Office to ensure that such automated

delivery be made available upon the first

availability of the [public] database, and that the fee

schedule scrupulously adhere to the ‘marginal cost’

standard.’’).

224

MLC April NOI Comment at 14.

225

See 17 U.S.C. 115(d)(3)(E)(v)(I)–(II).

226

See id. at 115(d)(3)(E), (d)(4)(C), (d)(7)(A).

227

Conf. Rep. at 7 (‘‘Given the importance of this

database, the legislation makes clear that it shall be

made available to the Copyright Office and the

public without charge, with the exception of

recovery of the marginal cost of providing access in

bulk to the public.’’).

228

See id. at 6. See also DLC April NOI Comment

at 5 (‘‘[T]he Office should ensure that neither the

MLC nor its vendors are given a special competitive

advantage because of their responsibility for

maintaining this database.’’); SoundExchange Ex

Parte Letter Sept. 1, 2020 at 1 (‘‘[T]he musical

works database should be a resource for the entire

music industry,’’ and ‘‘regulations should ensure

that potential competitors have the same access to

MLC data and the MLC database enjoyed by the

MLC’s vendors.’’).

229

Music Reports also asks that bulk access to the

public database be provided on a ‘‘competition-

neutral basis.’’ Music Reports April NOI Comment

at 5. Because the proposed rule requires the

mechanical licensing collective to provide bulk

access to any third party that pays the ‘‘marginal

cost’’ of doing so, the Office does not believe such

a condition needs to be codified in regulations.

230

H.R. Rep. No. 115–651, at 8; S. Rep. No. 115–

339, at 8–9; Conf. Rep. at 7.

that the MLC shall make the musical

works database available in a bulk, real-

time, machine-readable format through

a process for bulk data management

widely adopted among music rights

administrators to: (1) Digital music

providers operating under the authority

of valid notices of license, and their

authorized vendors, free of charge; (2)

significant nonblanket licensees in

compliance with their obligations under

17 U.S.C. 115(d)(6), and their authorized

vendors, free of charge; (3) the Register

of Copyrights, free of charge; and (4) any

other person or entity for a fee not to

exceed the marginal cost to the

mechanical licensing collective of

providing the database to such person or

entity, which shall not be unreasonable.

In addition, starting July 1, 2021, the

MLC must provide bulk access to the

public database through APIs, although

the proposed rule would provide the

MLC flexibility to determine how to

precisely implement that requirement.

2. Marginal Cost

Despite the statute and legislative

history stating third parties may be

charged the ‘‘marginal cost’’ of being

provided bulk access, in response to the

September NOI, A2IM & RIAA

expressed concern about making the

public database available to third parties

‘‘unless the fee those third parties are

required to pay takes into account the

cost for the MLC to acquire that data

and all of the costs and hard work that

goes into creating, compiling, verifying,

deduping, etc. the sound recording data

that will reside within the MLC

database and the potential opportunity

costs to [record labels] of having that

data available to third parties via the

MLC.’’

218

RIAA & A2IM asked the

Office to define ‘‘marginal cost’’ to

‘‘include not just the cost of creating

and maintaining the bulk access, but

also the cost to the MLC of acquiring the

data, including payment to the data

source, for the hard work of aggregating,

verifying, deduping and resolving

conflicts in the data.’’

219

In its April

NOI, the Office tentatively declined this

request, stating that ‘‘[i]t is not clear that

‘marginal cost’ is a vague term,’’ and

that the ‘‘MLC should be able to

determine the best pricing information

in light of its operations, based on the

statutory and legislative history

language.’’

220

In response, ARM asks the Office to

reconsider its decision.

221

By contrast,

Music Reports, a provider of music

copyright ownership information and

rights administration services, contends

that ‘‘marginal cost’’ should be

‘‘acknowledged as modest’’ and read to

mean solely the cost of making the data

available to such person or entity.

222

Music Reports further maintains that

‘‘the cost of making such data available

in bulk is non-trivial, but not expensive

when distributed over time and among

multiple parties,’’ and that even where

a range of formats, protocols, and

choreographies are offered, ‘‘and even

when offered at high frequency and on

a highly contemporary basis, once those

elements are established and made

public, the cost to maintain them tends

to be relatively fixed and modest.’’

223

For its part, the MLC agreed with the

Office’s tentative conclusion that the

MLC should be able to determine the

best pricing information for bulk access

to the database ‘‘to third parties not

enumerated in the statute.’’

224

The Office notes that the MLC is

required to provide access in a ‘‘bulk,

machine-readable format’’ to digital

music providers operating under the

authority of valid notices of license and

significant nonblanket licensees in

compliance with their obligations under

17 U.S.C. 115(d)(6).

225

Given that the

statute envisions digital service

providers and significant nonblanket

licensees funding the mechanical

licensing collective’s activities, which

includes the creation and maintenance

of a public musical works database,

226

and that the term ‘‘marginal cost’’ is not

vague, it is difficult for the Office to see

how Congress intended third parties to

offset the larger cost of the collective

acquiring the data and aggregating,

verifying, deduping and resolving

conflicts in the data. Rather, the

legislative history emphasizes the

importance of accessibility to the public

database

227

and indicates an intent to

create a level playing field, recognizing

that ‘‘[m]usic metadata has more often

been seen as a competitive advantage for

the party that controls the database,

rather than as a resource for building an

industry on.’’

228

Requiring third parties

to pay more than the ‘‘marginal cost’’

could create commercial disadvantages

that the MMA sought to eliminate.

Accordingly, the proposed rule states

that the mechanical licensing collective

shall make the musical works database

available in a bulk, real-time, machine-

readable format to any other person or

entity for a fee not to exceed the

marginal cost to the mechanical

licensing collective of providing the

database to such person or entity, which

shall not be unreasonable.

229

This

allows the MLC to determine the best

pricing information in light of its

operations, while providing reassurance

that ‘‘marginal cost’’ will not be

unreasonable.

3. Abuse

The legislative history states that in

cases of efforts by third parties to bypass

the marginal cost recovery for bulk

access (i.e., abuse), the MLC ‘‘may

implement reasonable steps to block

efforts to bypass the marginal cost

recovery for bulk access if it appears

that one or more entities are attempting

to download the database in bulk

through repeated queries.’’

230

In

response to the September NOI, both the

MLC and DLC proposed regulatory

language that would provide the MLC

discretion to block efforts to bypass the

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MLC Initial September NOI Comment at 25;

DLC Reply September NOI Comment Add. at A–17.

232

A2IM & RIAA Reply September NOI Comment

at 7.

233

85 FR at 22579.

234

MLC April NOI Comment at 15 (‘‘[A]

regulation allowing the MLC to block efforts by

non-licensees or significant non-blanket licensees to

bypass the marginal cost recovery for bulk database

access through repeated queries would be useful.’’);

DLC April NOI Comment at 5 (‘‘DLC reiterates its

prior comment that the problem of abusive access

can be adequately addressed by empowering the

MLC to block efforts to bypass marginal cost

recovery.’’).

235

MLC April NOI Comment at 15.

236

CISAC & BIEM Initial September NOI

Comment at 4.

237

DLC Initial September NOI Comment at 21.

238

MLC Reply September NOI Comment at 37.

239

85 FR at 22579; 17 U.S.C. 115(d)(3)(E)(vi).

240

85 FR at 22579.

241

CISAC & BIEM April NOI Comment at 3

242

Music Reports April NOI Comment at 7.

243

FMC April NOI Comment at 3.

244

DLC April NOI Comment at 5.

245

MLC April NOI Comment at 15.

246

See 85 FR at 22579.

247

MLC April NOI Comment at 16.

248

Id. at 16 n.9.

marginal cost recovery.

231

A2IM & RIAA

also suggested that the MLC be required

to implement technological protection

measures (‘‘TPMs’’) to reduce the

likelihood of third parties ‘‘scraping’’

data without paying any fee.

232

In the

April NOI, the Office agreed that, in

principle, the MLC should at a

minimum have such discretion, and

sought public input on any issues

regarding the mechanical licensing

collective’s ability to block efforts to

bypass the marginal cost recovery,

particularly how to avoid penalizing

legitimate users while providing the

collective flexibility to police abuse, and

whether regulatory language should

address application of TPMs.

233

Both the MLC and DLC reiterate their

support of granting the mechanical

licensing collective discretion to block

third parties from bulk access to the

public database after attempts to bypass

marginal cost recovery,

234

and no

commenters opposed this proposal. The

MLC further contends that it should

have the discretion to block bulk

database access where persons have

engaged in other unlawful activity with

respect to the database.

235

In light of these comments, the

proposed rule states that the MLC shall

establish appropriate terms of use or

other policies governing use of the

database that allows it to suspend access

to any individual or entity that appears,

in the collective’s reasonable

determination, to be attempting to

bypass the MLC’s right to charge a fee

to recover its marginal costs for bulk

access through repeated queries, or to

otherwise be engaging in unlawful

activity with respect to the database

(including, without limitation, seeking

to hack or unlawfully access

confidential, non-public information

contained in the database) or

misappropriating or using information

from the database for improper

purposes. To ensure transparency

regarding which persons or entities have

had bulk database access suspended, as

discussed more below, the proposed

rule requires the mechanical licensing

collective to identify such persons and

entities in its annual report and explain

the reason(s) for suspension.

4. Restrictions on Use

In response to the September 2019

NOI, CISAC & BIEM asked for

regulations defining ‘‘strict terms and

conditions’’ for use of data from the

database by digital music providers and

significant nonblanket licensees (and

their authorized vendors), ‘‘including

prohibition for DSPs to use data for

purposes other than processing uses and

managing licenses and collaborating

with the MLC in data collection.’’

236

By

contrast, the DLC maintained that

‘‘licensees should be able use the data

they receive from the MLC for any legal

purpose.’’

237

While the MLC ‘‘agree[d]

that there should be some reasonable

limitation on the use of the information

to ensure that it is not misappropriated

for improper purposes’’ and stated that

it ‘‘intends to include such limitation in

its terms of use in the database,’’ the

MLC contended that appropriate terms

of use should address potential misuse

of information from the public database

(rather than regulations).

238

In its April 2020 NOI, the Office

agreed that while it will be important

for the collective to develop reasonable

terms of use to address potential misuse

of information in the public database,

and that it appreciates the role that

contractual remedies may play to deter

abuse, the MMA directs the Office to

issue regulations regarding ‘‘usage

restrictions,’’ in addition to usability

and interoperability of the database.

239

The Office also acknowledged the risk

of misuse, and sought further public

input on any issues that should be

considered relating to restrictions on

usage of information in the public

database, including whether regulatory

language should address remedies for

misuse (and if so, how and why), or

otherwise provide a potential regulatory

floor for the MLC’s terms of use.

240

Comments in response to the Office’s

April 2020 notification were mixed.

CISAC & BIEM again asked for ‘‘strict

rules for the use of data available on the

MLC database by the public, prohibiting

commercial uses and allowing

exclusively lookup functions,’’

241

whereas Music Reports contends that

data in the public database should be

available for any legal use.

242

FMC is

‘‘inclined to want to see some

reasonable terms and conditions’’

regarding use of the public database, but

that ‘‘[i]t’s entirely appropriate for the

Office to offer a floor.’’

243

The DLC

contends that flexibility is appropriate

regarding restrictions on use, that ‘‘the

specific operational realities of the

database to lend themselves to useful ex

ante regulation,’’ and thus reiterated

that ‘‘abusive access can be adequately

addressed by empowering the MLC to

block efforts to bypass marginal cost

recovery.’’

244

For its part, the MLC continues to

maintain that ‘‘there should be some

reasonable limitation on the use of the

information in the MLC database to

ensure that it is not misappropriated for

improper purposes,’’ and that it intends

to ‘‘include such limitation in its terms

of use in the database.’’

245

In response

to the Office’s concerns about

misappropriation of personally

identifiable information (PII) by bad

actors,

246

the MLC maintains that it

‘‘does not intend to include in the

public database the types of information

that have traditionally been considered

PII, such as Social Security Number

(SSN), date of birth (DOB), and home

address or personal email (to the extent

those are not provided as the contact

information required under 17 U.S.C.

115(d)(3)(E)(ii)(III)),’’ and that it ‘‘further

intends to protect other types of PII.’’

247

But the MLC also asks that it ‘‘be

afforded the flexibility to disclose

information not specifically identified

by statute that would still be useful for

the database but would not have serious

privacy or identity theft risks to

individuals or entities.’’

248

As noted above, the proposed rule

requires the mechanical licensing

collective to establish appropriate terms

of use or other policies governing use of

the database that allow it to suspend

access to any individual or entity that

appears, in the collective’s reasonable

determination, to be engaging in

unlawful activity with respect to the

database (including, without limitation,

seeking to hack or unlawfully access

confidential, non-public information

contained in the database) or

misappropriating or using information

from the database for improper

purposes. The proposed rule also

requires the MLC to identify any

persons and entities in its annual report

that have had database access

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See 85 FR at 22579.

250

S. Rep. No. 115–339, at 7.

251

17 U.S.C. 115(d)(3)(D)(ix)(I)(aa).

252

The MLC, Mission and Principles, https://

themlc.com/mission-and-principles (last visited

Sept. 1, 2020) (‘‘The MLC will build trust by

operating transparently. The MLC is governed by a

board of songwriters and music publishers who will

help ensure our work is conducted with integrity.’’).

See also The MLC, The MLC Process, https://

themlc.com/how-it-works (last visited Sept. 1, 2020)

(‘‘The MLC is committed to transparency. The MLC

will make data on unclaimed works and unmatched

uses available to be searched by registered users of

The MLC Portal and the public at large.’’).

253

See, e.g., MLC Reply September NOI Comment

at 42–43 (‘‘The MLC is committed to transparency

and submits that, while seeking to enact regulations

is not an efficient or effective approach, the MLC

will implement policies and procedures to ensure

transparency.’’).

254

85 FR at 22572.

255

17 U.S.C. 115(d)(3)(D)(vii)(I)(aa)–(hh); Conf.

Rep. at 7.

256

17 U.S.C. 115(d)(3)(D)(vii)(I), (II).

257

Recording Academy Reply September NOI

Comment at 2.

258

Lowery Reply September NOI Comment at 8;

Monica Corton Consulting Reply September NOI

Comment at 3.

259

Lowery Reply September NOI Comment at 5.

260

SGA Initial September NOI Comment at 6.

CISAC & BIEM contend that ‘‘[c]larifications should

be made on how musical works will be matched to

sound recording and how far these cross-references

will not conflict with matching and or claims

conducted by other entities, which could raise

identification conflicts at DSP level.’’ CISAC &

BIEM Initial September NOI Comment at 3. The

statute requires the MLC to disclose in its annual

report ‘‘the efforts of the collective to locate and

identify copyright owners of unmatched musical

works (and shares of works)’’ with respect to

administration of the U.S. blanket license under

section 115. 17 U.S.C. 115(d)(3)(D)(vii)(I)(hh).

261

The MLC, Transparency, https://themlc.com/

faqs/categories/transparency (last visited Sept. 1,

2020) (noting that the MLC will ‘‘promote

transparency’’ by ‘‘[p]roviding an annual report to

the public and to the Copyright Office detailing the

operations of The MLC, its licensing practices,

collection and distribution of royalties, budget and

cost information, its efforts to resolve unmatched

royalties, and total royalties received and paid

out’’).

262

85 FR at 22572; see also National Association

of Independent Songwriters (‘‘NOIS’’) et al. Initial

September NOI Comment at 16; MAC Initial

September NOI Comment at 2; Lowery Reply

September NOI Comment at 8; SGA Reply

September NOI Comment at 5.

263

See DLC April NOI Comment at 3 (stating that

the transparency requirements in the annual report

‘‘are critical to ensuring that all industry

participants—songwriters, publishers, licensees,

and the Copyright Office itself—can confirm that

the MLC is operating effectively and in the best

interests of the industry.’’); SGA April NOI

Comment at 6 (‘‘As the Copyright Office stated in

its Notice, another ‘avenue for transparency with

respect to the MLC is through its annual report.’

SGA emphatically agrees with this assessment

. . .’’); FMC April NOI Comment at 1 (agreeing that

the annual report should include information about

board governance, the manner in which the

collective will distribute unclaimed royalties,

development updates and certifications related to

its IT systems, and the collective’s efforts to identify

copyright owners); see id. (‘‘Annual reports would

ideally also offer a sense where the areas of growth

and needs for additional effort might lie, with

regards to demographics and genres; this sort of

candid self-assessment, would help writers and

industry allies be effective partners to the MLC in

reaching these populations most effectively.’’).

264

DLC April NOI Comment at 3; FMC April NOI

Comment at 1.

265

CISAC & BIEM April NOI Comment at 2.

266

SGA April NOI Comment at 7. Although the

Office tentatively declines to require an

independent report from the board’s music creator

representatives through regulation, the Office fully

expects the MLC to give voice to its board’s

songwriter representatives as well as its statutory

committees, whether through its annual reporting

or other public announcements.

267

See Castle April NOI Comment at 13 (stating

Office ‘‘regulations should provide that there be

some written public statement by The MLC’s CFO

. . . that these funds are being approved by the

board for disbursement before the taking along with

a justification statement. The MLC board should

have to sign up to that statement with full

transparency of why there is this compelling need

and why that need can only be met this way.’’); 17

U.S.C. 115(d)(7)(C).

suspended and explain the reason(s) for

such suspension, for purposes of

transparency. While wishing to grant

the MLC some flexibility regarding

restrictions on use regarding the public

database, the Office reiterates that any

database terms of use should not be

overly broad or impose unnecessary

restrictions upon good faith users.

249

D. Transparency of MLC Operations;

Annual Reporting

The legislative history and statute

envision the MLC ‘‘operat[ing] in a

transparent and accountable

manner’’

250

and ensuring that its

‘‘policies and practices . . . are

transparent and accountable.’’

251

The

MLC itself has expressed its

commitment to transparency, both by

including transparency as one of its four

key principles underpinning its

operations on its current website,

252

and

in written comments to the Office.

253

As

noted in the April NOI, one avenue for

MLC transparency is through its annual

report.

254

The MMA requires the MLC

to publish an annual report no later than

June 30 of each year after the license

availability date, setting forth

information regarding: (1) Its

operational and licensing practices; (2)

how royalties are collected and

distributed; (3) budgeting and

expenditures; (4) the collective total

costs for the preceding calendar year; (5)

the MLC’s projected annual budget; (6)

aggregated royalty receipts and

payments; (7) expenses that are more

than ten percent of the MLC’s annual

budget; and (8) the MLC’s efforts to

locate and identify copyright owners of

unmatched musical works (and shares

of works).

255

The MLC must deliver a

copy of the annual report to the Register

of Copyrights and make this report

publicly available.

256

The annual report provides much of

the information requested by parties

about the collective’s activities. For

example, commenters sought disclosure

of information in specific areas the

statute envisions the annual report

addressing, such as board

governance,

257

the manner in which the

MLC will distribute unclaimed

royalties,

258

development updates and

certifications related to its IT

systems,

259

and the MLC’s efforts to

identify copyright owners.

260

The MLC

itself recognized that its annual report is

one way in which it intends to

‘‘promote transparency.’’

261

But based

on the September NOI comments, the

Office thus asked for further public

input on specific types of information

the MLC should include in its annual

report, including whether to include

issues related to vendor selection

criteria and performance, board and

committee selection criteria, and actual

or potential conflicts raised with and/or

addressed by its board of directors, if

any, in accordance with the MLC’s

policy.

262

In response, the DLC, SGA, and FMC

agree that the MLC’s annual report

should be used to provide transparency

on the collective’s activities more

generally,

263

with both the DLC and

FMC stating that the annual report

should include information about board

governance and the selection and

criteria used for the collective’s

vendors.

264

CISAC & BIEM maintain

that the annual report should include

information regarding the ‘‘global

amount of accrued undistributed

royalties.’’

265

SGA proposes that a

section of the annual report ‘‘be

dedicated to an independent report by

the board’s music creator

representatives on their activities in

support of songwriter and composer

interests, the handling of conflict-

Citation	85 FR 58170
Record Number	2020-20078
Published date	17 September 2020
Section	Proposed rules
Court	Copyright Office,Library Of Congress

The Public Musical Works Database and Transparency of the Mechanical Licensing Collective

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