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

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39

Public Law 105–277, 112 Stat. 2681 (1998).

Accountability Office so this rule may

be reviewed.

D. Executive Order 13132

Executive Order 13132 encourages

independent regulatory agencies to

consider the impact of their actions on

state and local interests. In adherence to

fundamental federalism principles, the

NCUA, an independent regulatory

agency as defined in 44 U.S.C. 3502(5),

voluntarily complies with the Executive

order. This final rule will not have a

substantial direct effect on the states, on

the connection between the National

Government and the states, or on the

distribution of power and

responsibilities among the various

levels of government. The NCUA has

determined that this final rule does not

constitute a policy that has federalism

implications for purposes of the

Executive order.

D. Assessment of Federal Regulations

and Policies on Families

The NCUA has determined that this

final rule will not affect family well-

being within the meaning of Section 654

of the Treasury and General

Government Appropriations Act,

1999.

39

List of Subjects in 12 CFR Part 701

Credit unions, Low income,

Nonmember deposits, Secondary

capital, Shares.

By the National Credit Union

Administration Board on December 17, 2020.

Melane Conyers-Ausbrooks,

Secretary of the Board.

For the reasons discussed above, the

Board amends 12 CFR part 701 as

follows:

PART 701—Organization and

Operations of Federal Credit Unions

■1. The authority citation for part 701

continues to read as follows:

Authority: 12 U.S.C. 1752(5), 1755, 1756,

1757, 1758, 1759, 1761a, 1761b, 1766, 1767,

1782, 1784, 1785, 1786, 1787, 1788, 1789.

Section 701.6 is also authorized by 15 U.S.C.

3717. Section 701.31 is also authorized by 15

U.S.C. 1601 et seq.; 42 U.S.C. 1981 and 3601–

3610. Section 701.35 is also authorized by 42

U.S.C. 4311–4312.

■2. In § 701.6, revise paragraphs (a) and

(b) to read as follows:

§ 701.6 Fees paid by Federal credit unions.

(a) Basis for assessment. Each

calendar year, or as otherwise directed

by the NCUA Board, each Federal credit

union shall pay an operating fee to the

NCUA for the current fiscal year

(January 1 to December 31) in

accordance with a schedule fixed by the

Board from time to time.

(1) General. The operating fee shall be

based on the average of total assets of

each Federal credit union based on data

reported in NCUA Forms 5300 and 5310

from the four quarters immediately

preceding the time the Board approves

the agency’s budget or as otherwise

determined pursuant to paragraph (b) of

this section.

(2) Exclusions from total assets. For

purposes of calculating the operating

fee, total assets shall not include any

loans on the books of a natural person

Federal credit union made under the

Small Business Administration’s

Paycheck Protection Program, 15 U.S.C.

636(a)(36), or any similar program

approved for exclusion by the NCUA

Board.

(b) Coverage. The operating fee shall

be paid by each Federal credit union

engaged in operations as of January 1 of

each calendar year in accordance with

paragraph (a) of this section, except as

otherwise provided by this paragraph

(b).

(1) New charters. A newly chartered

Federal credit union will not pay an

operating fee until the year following

the first full calendar year after the date

chartered.

(2) Conversions. (i) In the first

calendar year following conversion:

(A) A federally insured state-chartered

credit union that converts to a Federal

credit union charter must pay an

operating fee based on the average assets

reported in the year of conversion on

NCUA Forms 5300 or 5310 from the

four quarters immediately preceding the

time the Board approves the agency’s

budget in the year of conversion.

(B) An entity not insured by the

NCUA that converts to a Federal credit

union charter must pay an operating fee

based on the assets, or average thereof,

reported on NCUA Forms 5300 or 5310

for any one or more quarters

immediately preceding the time the

Board approves the agency’s budget in

the year of conversion.

(ii) A Federal credit union converting

to a different charter will not receive a

refund of any operating fees paid to the

NCUA.

(3) Mergers. (i) In the first calendar

year following merger:

(A) A continuing Federal credit union

that has merged with one or more

federally insured credit unions must

pay an operating fee based on the

average combined total assets of the

Federal credit union and any merged

federally insured credit unions as

reported on NCUA Forms 5300 or 5310

in the four quarters immediately

preceding the time the Board approves

the agency’s budget in the merger year.

(B) For purposes of this paragraph

(b)(3), a purchase and assumption

transaction where the continuing

Federal credit union purchases all or

essentially all of the assets of another

depository institution shall be deemed a

merger.

(ii) A Federal credit union that merges

with a Federal or state-chartered credit

union, or an entity not insured by the

NCUA, will not receive a refund of any

operating fee paid to the NCUA.

(4) Liquidations. A Federal credit

union placed in liquidation will not pay

any operating fee after the date of

liquidation.

* * * * *

[FR Doc. 2020–28490 Filed 12–30–20; 8:45 am]

BILLING CODE 7535–01–P

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

: Interim rule.

SUMMARY

: The U.S. Copyright Office is

issuing an interim rule regarding the

Musical Works Modernization Act, title

I of the Orrin G. Hatch-Bob Goodlatte

Music Modernization Act. The law

establishes a new blanket compulsory

license 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 and a notice of

proposed rulemaking, the Office is

issuing interim regulations 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

issuing interim regulations related to

ensuring appropriate transparency of

the mechanical licensing collective

itself.

DATES

: Effective February 16, 2021.

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,

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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.’’).

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. 115(d)(3)(C)(i).

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 recognizes 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.

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-commingling policy for

funds collected and those not collected under

section 115, and submit 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

collective’s performance).

20

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

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 becomes available on

January 1, 2021 (the ‘‘license availability

date’’), and is administered by a

mechanical licensing collective

(‘‘MLC’’) designated by the Copyright

Office (‘‘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

Office

The MMA enumerates several

regulations that the Office is specifically

directed to promulgate to govern the

new blanket licensing regime, and

Congress invested the Office with

‘‘broad regulatory authority’’

6

to

‘‘conduct such proceedings and adopt

such regulations as may be necessary or

appropriate.’’

7

The MMA specifically

directs the Office to promulgate

regulations related to the MLC’s creation

of a 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

and its

contents must also be made available

‘‘in a bulk, machine-readable format,

through a widely available software

application,’’ to certain parties,

including blanket licensees and the

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, 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

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 as the entity to

administer the blanket license, 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

notifications and notice of proposed

rulemaking, 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 elements 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 regarding

information to be included in the public

musical works database (e.g., what

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

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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 and the notice of proposed

rulemaking 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. 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,’’

‘‘NPRM Comment,’’ ‘‘Letter,’’ or ‘‘Ex Parte Letter,’’

as appropriate.

22

See 85 FR at 22571 (citing multiple

commenters).

23

85 FR at 22568.

24

85 FR 58170 (Sept. 17, 2020).

25

See DLC NPRM Comment at 1 (‘‘The DLC

supports the Office’s proposed rule . . .’’); Music

Artists Coalition (‘‘MAC’’) NPRM Comment at 4

(‘‘MAC would like to again thank the Office for

their leadership and responsiveness to public

comments during the implementation of the

MMA.’’); Recording Academy NPRM Comment at 1

(‘‘The Academy is gratified that the Office’s NPRM

reflects many of the concerns and priorities

expressed in the Academy’s previous comments

. . .’’); Songwriters of North America (‘‘SONA’’)

NPRM Comment at 3 (‘‘SONA is grateful to the

Copyright Office for its diligence and oversight in

working to develop a strong regulatory framework

to implement the MMA as the License Availability

Date (‘‘LAD’’) quickly approaches.’’);

SoundExchange NPRM Comment at 3

(‘‘SoundExchange applauds the Office for going to

great lengths to ensure that appropriate categories

of information are included in the MLC Database.

SoundExchange particularly appreciates the

Office’s consideration of the public comments as it

fashioned the regulations . . .’’).

26

See 85 FR at 22571 (advising that the Office

may issue an interim rule to allow a flexible

regulatory structure); DLC NPRM Comment at 1

(‘‘The DLC would support the establishment of an

interim rule, for similar reasons to those given by

the Office in its recent usage and reporting

rulemaking.’’).

27

DPID ‘‘is an alphanumeric identifier that

identifies the party delivering the DDEX message,’’

and ‘‘is also generally the party to whom the [digital

music provider (‘‘DMP’’)] sends royalties for the

relevant sound recording.’’ A2IM & RIAA Reply

September NOI Comment at 8.

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) (web page no longer available)

(noting that the MLC will ‘‘promote transparency’’

by ‘‘[p]roviding unprecedented access to musical

works ownership information through a public

database’’).

30

MLC Ex Parte Letter Dec. 3, 2020 (‘‘MLC Ex

Parte Letter #11’’) at 3. According to the MLC, it

‘‘began providing members with access to the MLC

Portal at the end of September,’’ and ‘‘[s]everal

thousand members have completed the onboarding

process and thousands more have received

invitations via email to complete the onboarding

process.’’ Id.

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, and urged the

Office to exercise expansive and robust

oversight.

22

Given these comments, on

April 22, 2020, the Office issued a

second notification of inquiry,

23

and on

September 17, 2020, the Office issued a

notice of proposed rulemaking

(‘‘NPRM’’),

24

both soliciting further

comment on these issues. In response to

the NPRM, the comments overall were

positive about the proposed rule,

expressing appreciation for the Office’s

responsiveness to stakeholder

comments.

25

Having reviewed and considered all

relevant comments received in response

to both notifications of inquiry and the

NPRM, and having engaged in

transparent ex parte communications

with commenters, the Office is issuing

an interim 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 issuing interim regulations

related to ensuring appropriate

transparency of the mechanical

licensing collective itself. Except as

otherwise discussed below, the

proposed rule is being adopted for the

reasons discussed in the NPRM. The

Office has determined that it is prudent

to promulgate this rule on an interim

basis so that it retains some flexibility

for responding to unforeseen

complications once the MLC launches

the musical works database.

26

In doing

so, the Office emphasizes that adoption

on an interim basis is not an open-

ended invitation to revisit settled

provisions or rehash arguments, but

rather is intended to allow necessary

modifications to be made in response to

new evidence or unforeseen issues, or

where something is otherwise not

functioning as intended.

The interim rule is intended to grant

the MLC flexibility in various ways

instead of adopting requirements that

may prove overly prescriptive as the

MLC administers the public database.

For example, and as discussed below,

the interim rule grants the MLC

flexibility in the following ways:

•To label fields in the public

database, as long as the labeling takes

into account industry practice and

reduces the likelihood of user

confusion.

•To include non-confidential

information in the public database that

is not specifically identified by the

statute but the MLC finds useful,

including information regarding

terminations, performing rights

organization (‘‘PRO’’) affiliation, and

DDEX Party Identifier (DPID).

27

•To allow songwriters, or their

representatives, to have songwriter

information listed anonymously or

pseudonymously.

•To select the most appropriate

method for archiving and maintaining

historical data to track ownership and

other information changes in the public

database.

•To select the method for displaying

data provenance information in the

public database.

•To determine the precise disclaimer

language for alerting users that the

database is not an authoritative source

for sound recording information.

•To develop reasonable terms of use

for the public database, including

restrictions on use.

•To block third parties from bulk

access to the public database based on

their attempts to bypass marginal cost

recovery or other unlawful activity with

respect to the database.

•To determine the initial format in

which the MLC provides bulk access to

the public database, with a six-month

extension to implement bulk access

through application programming

interfaces (‘‘APIs’’).

•To determine how to represent

processing and distribution times for

royalties disclosed in the MLC’s annual

report.

II. Interim Rule

A. Ownership of Data in the Public

Musical Works Database

The MLC must establish and maintain

a free-of-charge 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

The Office appreciates that

the MLC ‘‘is working on launching the

public search window on the website

that will allow members of the public to

search the musical works database in

January [2021],’’ and that the MLC

‘‘anticipates launching the bulk data

program to members of the public in

January’’

30

(discussed more below).

As noted in the NPRM, the statute and

legislative history emphasize that the

database is meant to benefit the music

industry overall and is not ‘‘owned’’ by

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85 FR at 58172. 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.’’ 17 U.S.C.

115(d)(3)(B)(ii)(II) (emphasis added). The legislative

history distinguishes the MLC’s public database

from past attempts to control and/or own industry

data. 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. S501,

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);

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’’).

32

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

Parte Letter #7’’) at 2.

33

ARM NPRM Comment 1–2; see Recording

Academy NPRM Comment at 2 (‘‘The Office states

unambiguously that ‘the statute and legislative

history emphasize that the database . . . is not

‘‘owned’’ by the collective itself.’ This principle is

affirmed by the MLC . . . The Academy appreciates

that this issue is addressed in a clear,

straightforward manner and included in the record

to assuage any concerns to the contrary.’’); SGA &

SCL NPRM Comment at 5 (‘‘SGA and SCL were

gratified by the USCO’s clear statement’’ that MLC

and vendor does not own data).

34

ARM asked 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 declined this request. The proposed rule

did, however, require the MLC to consider industry

practices when labeling fields in the public

database to reduce the likelihood of user confusion.

The interim rule adopts this aspect of the proposed

rule. ARM encourages the MLC to consider its

previous labeling suggestions, but does not object

‘‘to the Office’s decision to grant the MLC flexibility

regarding how to label fields in the public database,

as long as the MLC’s labelling decisions consider

industry practices and the MLC picks field labels

that reduce the likelihood of user confusion

regarding the contents of each data field.’’ ARM

NPRM Comment at 2.

35

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

36

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

37

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

38

Conf. Rep. at 7.

39

85 FR at 22573; 85 FR at 58172–73. 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’’).

40

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’’).

41

See 37 CFR 210.29(c) (proposing a floor of

categories of information to be required in periodic

reporting to copyright owners).

the collective itself.

31

The MLC

acknowledges this, stating 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.’’

32

The Alliance for Recorded

Music (‘‘ARM’’), Recording Academy,

and Songwriters Guild of America

(‘‘SGA’’) & Society of Composers &

Lyricists (‘‘SCL’’) praised the Office for

addressing the issue of data ownership,

with ARM ‘‘encourag[ing] the Office to

make this point explicit in the

regulations.’’

33

In light of these

comments, and the statute and

legislative history, the interim rule

confirms that data in the public musical

works database is not owned by the

mechanical licensing collective or any

of its employees, agents, consultants,

vendors, or independent contractors.

B. Categories of Information in the

Public Musical Works Database

The statute requires the MLC to

include various types of information in

the public musical works database. 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,

34

sound recording copyright

owner, producer, ISRC, and other

information commonly used to assist in

associating sound recordings with musical

works.

35

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.

36

In other words, the statute requires

the database to include varying degrees

of information regarding the musical

work copyright owner (depending on

whether the work is matched), but for

both matched and unmatched works,

identifying information for sound

recordings in which the work is

embodied (i.e., 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). For both matched

and unmatched works, the Register of

Copyrights may prescribe inclusion of

additional fields by regulation.’’

37

The

‘‘Register shall use its judgement to

determine what is 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.’’

38

In considering whether to prescribe

the inclusion of additional fields

beyond those statutorily required, the

Office focused on fields that the record

indicates would 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 under the section

115 statutory license.

39

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.

40

Recognizing that a robust musical works

database may contain many fields of

information, the interim rule establishes

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.

41

Stakeholder comments

regarding the types of information to

include (or exclude) are discussed by

category below.

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42

MLC April NOI Comment at 9 (agreeing with

inclusion of songwriter information for musical

works); MLC Reply September NOI Comment at 32

(same).

43

See SGA Initial September NOI Comment at 2;

The International Confederation of Societies of

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

International Organisation representing Mechanical

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

SONA April NOI Comment at 2; see also Barker

Initial September NOI Comment at 2; Future of

Music Coalition (‘‘FMC’’) Reply September NOI

Comment at 2; DLC Reply September NOI Comment

at 26; Recording Academy NPRM Comment at 2;

SONA NPRM Comment at 2, 4.

44

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

includes composers, the interim 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.

45

SGA & SCL NPRM Comment at 2–3.

46

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

also 37 CFR 210.29(c)(2)(i), (ii), and (v) and (c)(3)(ii)

(requiring the MLC to report certain types of

information to copyright owners ‘‘known to the

MLC’’).

47

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; Recording Academy NPRM Comment at

2 (‘‘[T]he Academy agrees that it is appropriate to

give the MLC discretion to give songwriters the

option to remain anonymous or use a pseudonym

in the database.’’); SGA & SCL NPRM Comment at

3 (‘‘[W]e desire to make clear that SGA and SCL also

continue to support the rights of those music

creators who may wish not to be publicly associated

with certain musical works. That is and must

continue to be right of any songwriter or

composer.’’).

48

85 FR at 58173.

49

SGA & SCL NPRM Comment at 3.

50

SONA NPRM Comment at 4.

51

Id. at 4–5.

52

MLC Ex Parte Letter #11 at 4.

53

Id.

54

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

statute also requires digital music providers to

report the ‘‘producer’’ to the mechanical licensing

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

also 37 CFR 210.27(e)(1)(i)(E)(2).

55

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’’); 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 34–35

(updating its understanding).

56

37 CFR 210.22(i) (defining ‘‘producer’’ for

purposes of Subpart B of section 210). See

Recording Academy NPRM Comment at 2

(supporting proposed rule).

57

17 U.S.C. 115(d)(3)(E)(ii)–(iii).

58

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.

59

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 at 3, https://

Continued

1. Songwriter or Composer

Commenters—including the MLC

42

—

overwhelmingly agreed that the

database should include songwriter and

composer information,

43

and so the

interim rule requires including such

information in the public database, to

the extent reasonably available to the

collective.

44

SGA & SCL suggest that the

phrase ‘‘to the extent reasonably

available to the collective’’ ‘‘serves to

diminish the requisite and explicit

value of songwriter/composer

identifying information.’’

45

The phrase

‘‘to the extent reasonably available to

the mechanical licensing collective’’ for

songwriter or composer information is

employed to mirror the statutory

qualification with respect to inclusion

of other types of information.

46

For

consistency with the statute (and the

other fields discussed below), the

interim rule adopts this aspect of the

proposed rule without modification.

Commenters also supported the

ability of songwriters, or their

representatives, to mask songwriters’

identity to avoid being associated with

certain musical works by having their

information listed anonymously or

pseudonymously in the public musical

works database.

47

While the proposed

rule granted the MLC discretion to allow

songwriters this option,

48

SGA & SCL

suggest that ‘‘that such a regulation be

extended into a mandatory direction to

the MLC to accept such direction from

a music creator.’’

49

By contrast, while

acknowledging ‘‘that writers often use

pennames and that there are also

current trends to hide an artist’s

identity, in which case the writer may

want to remain anonymous,’’ SONA

expresses concern that ‘‘not having a

songwriter’s name associated with a

musical work is often one of the biggest

challenges in ensuring a songwriter

receives proper payment,’’ and that

‘‘while at the time of creation that may

be the express wish of the songwriter, it

is critical that the creator and the

musical work do not become dissociated

over the term of the work’s

copyright.’’

50

SONA suggests that a

songwriter should have the option of

staying anonymous or using a

pseudonym in the public database only

if ‘‘the MLC has sufficient contact

information with the songwriter’s

representation,’’ and that the rule

should ‘‘ensure adequate information to

contact the songwriter or their

representatives is easily accessible for

users of that writer’s musical works.’’

51

For its part, the MLC contends that

‘‘[i]f the copyright owner or

administrator requests that the writer be

identified as ‘anonymous’ or by a

pseudonym, it can do so when it

submits the musical work information

to the MLC,’’ and that the MLC will

‘‘consider subsequent requests by an

owner or administrator to change the

name to ‘anonymous’ or to a

pseudonym.’’

52

The MLC contends that

the regulations should not ‘‘make it

mandatory for the MLC to change

songwriter names in the musical works

database at the request of any particular

party, because such may not always be

appropriate,’’ and that the MLC ‘‘is also

responsible for maintaining an accurate

musical works database, and must be

afforded the ability to fulfill that

function.’’

53

Having carefully considered this

issue, the Office has included in the

interim rule adjusted language ensuring

that the MLC develops and makes

publicly available a policy on how it

will consider requests by copyright

owners or administrators to change

songwriter names to be listed

anonymously or pseudonymously. The

Office encourages the MLC to grant any

subsequent requests by a copyright

owner or administrator to change a

songwriter name to ‘‘anonymous’’ or to

a pseudonym.

2. Studio Producer

As the statute requires the public

database to include ‘‘producer’’ to the

extent reasonably available to the

MLC,

54

so does the interim rule.

Initially, there appeared to be

stakeholder disagreement about the

meaning of the term ‘‘producer,’’ which

has since been resolved to clarify that it

refers to the studio producer.

55

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

defined ‘‘producer’’ in its interim rule

concerning reports of usage, notices of

license, and data collection efforts,

among other things, to define

‘‘producer’’ to mean studio producer

throughout its section 115 regulations.

56

3. Unique Identifiers

The statute requires the MLC to

include ISRC and ISWC codes, when

reasonably available.

57

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.’’

58

The

proposed rule required the public

database to include the Interested

Parties Information (‘‘IPI’’)

59

and/or

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glossary.pdf (last visited Dec. 18, 2020).

60

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.’’ Id.

61

85 FR at 58188–89.

62

Id.

63

85 FR at 58174.

64

See CISAC & BIEM NPRM Comment at 1

(‘‘appreciat[ing] that the Office has included

international identifiers such as ISWC and IPI’’);

SGA & SCL NPRM Comment at 3 (‘‘strongly

support[ing]’’ the inclusion of IPI, ISNI, and UPC

data’’); SONA NPRM Comment at 5

(‘‘commend[ing] the Office’’ for including IPI, ISNI,

and UPC).

65

See MLC April NOI Comment at 9; MLC Ex

Parte Letter #7 at 5; MLC NPRM Comment at 2–3.

66

SGA & SCL NPRM Comment at 3.

67

17 U.S.C. 115(d)(3)(E)(ii)–(iii).

68

See DLC Reply September NOI Comment Add.

at A–16; ARM April NOI Comment at 2; FMC April

NOI Comment at 2; SONA April NOI Comment at

5–6; SoundExchange Initial September NOI

Comment at 8; Barker Initial September NOI

Comment at 2.

69

Barker Initial September NOI Comment at 3.

70

MLC Reply September NOI Comment at 32

n.16.

71

MLC April NOI Comment at 9.

72

MLC Ex Parte Letter #7 at 5.

73

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.

74

MLC Ex Parte Letter #7 at 6.

75

MLC Reply September NOI Comment at 44.

76

85 FR at 58175; see 17 U.S.C. 115.

77

85 FR at 58175; see 17 U.S.C. 101 (defining

‘‘copyright owner’’ and ‘‘transfer of copyright

ownership’’); id. at 115.

78

85 FR at 58175; The MLC, Play Your Part,

https://themlc.com/play-your-part (last visited Dec.

18, 2020). 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.’’ The MLC,

MLC Data Quality Initiative 2 (2020), https://

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

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

20.pdf (last visited Dec. 18, 2020).

79

85 FR at 58175.

80

Id.

81

Id.

International Standard Name Identifier

(‘‘ISNI’’)

60

for each songwriter,

publisher, and musical work copyright

owner, as well as the Universal Product

Code (‘‘UPC’’), to the extent reasonably

available to the MLC.

61

As proposed, 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.

62

The Office sought public

comment on whether IPIs and/or ISNIs

for foreign collective management

organizations (‘‘CMOs’’) should be

required to be listed separately.

63

In response to the proposed rule,

commenters expressed continued

support for including IPIs, ISNIs, and

UPC,

64

which the MLC has agreed to

include.

65

The interim rule thus adopts

this aspect of the proposed rule without

modification. SGA & SCL ‘‘support the

comments of CISAC and BIEM . . . as

to the listing of IPIs and ISNIs for

foreign collective management

organizations.’’

66

As discussed more

below, the Office declines to require the

MLC to separately include IPIs and

ISNIs for foreign CMOs in the database

at this time, apart from where they may

otherwise already be included as a

relevant musical work copyright owner.

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.’’

67

The statute also requires

a field called ‘‘sound recording

copyright owner,’’ the meaning of which

is discussed further below.

Although the MMA does not reference

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

have urged inclusion of this information

in the public musical works database.

68

As one commenter suggested, 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.

69

The MLC agreed,

70

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.’’

71

In

addition, with respect to specific

ownership percentages, which are

required by statute to be made publicly

available, the MLC expressed its

intention to mark overclaims (i.e.,

shares totaling more than 100%) as such

and show the percentages and total of

all shares claimed so that overclaims

and underclaims (i.e., shares totaling

less than 100%) will be transparent.

72

Relatedly, CISAC & BIEM raised

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.’’

73

The MLC responded that it will ‘‘engage

in non-discriminatory treatment

towards domestic and foreign copyright

owners, CMOs and administrators,’’

74

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.’’

75

The NPRM noted that ‘‘[w]hile 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.’’

76

The

Office also stated that ‘‘[w]here

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.’’

77

The Office noted that the MLC appeared

to be planning for data collection from

foreign CMOs, as evidenced by

promotional material in connection

with its Data Quality Initiative (DQI).

78

Based on public comments, the Office

concluded that to the extent reasonably

available to the MLC, it would 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.

79

Accordingly, the proposed

rule required 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.

80

It would not prevent

the MLC from including additional

information with respect to foreign

CMOs.

81

In response, CISAC & BIEM again

expressed ‘‘the need to have CMOs

clearly recognized as ‘copyright

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82

CISAC & BIEM NPRM Comment at 1–2.

83

Id. at 2 (emphasis added).

84

SONA NPRM Comment at 6 (‘‘When

contemplating rules and procedures to implement

a database intended to show the public information

on the ownership of a musical work, it is important

that the development of the database conceive that

the data it incorporates and users that rely on that

data are not all of U.S. origin.’’).

85

MLC NPRM Comment at 3 (citation omitted).

86

MLC Ex Parte Letter #11 at 4.

87

17 U.S.C. 101. SGA maintains that ‘‘[m]any

songwriters (including composers) and their heirs

have carefully opted to retain ownership of the

copyrights in their musical compositions, and to

assign only limited administration or co-

administration rights to third party music

publishing entities,’’ and that ‘‘any songwriter or

heir who retains copyright ownership in her or his

portion of a work [should be able to] serve notice

on the MLC at any time directing that she or he is

to be listed as the copyright owner in the database

as to that portion.’’ SGA & SCL NPRM Comment at

4. If a songwriter or a songwriter’s heir is the

copyright owner of a musical work, the public

database should identify the songwriter or heir as

such, to the extent such information is available to

the mechanical licensing collective.

88

See CISAC & BIEM et al. Ex Parte Letter Oct.

27, 2020 at 2.

89

See CISAC & BIEM September NOI Initial

Comment at 3 (noting foreign musical works ‘‘may

have a publisher or may be sub-published in the US

in a way that the sub-publisher does not necessarily

hold 100% of the mechanical rights’’); CISAC &

BIEM et al. Ex Parte Letter Oct. 27, 2020 at 2 (noting

‘‘the existence of certain limitations in certain

cases, that prevent sub-publishers from collecting

100% of mechanical (e.g. 25% limitation in the case

of GEMA works)’’).

90

The rule uses the term ‘‘playing time.’’ See 37

CFR 210.27(e)(1)(i)(D).

91

85 FR at 58188–89; see Recording Academy

NPRM Comment at 2; SONA NPRM Comment at 7;

ARM April NOI Comment at 3; MLC Reply

September NOI Comment at App. E; MLC April NOI

Comment at 10; Recording Academy Initial

September NOI Comment at 3; Recording Academy

April NOI Comment at 3; RIAA Initial September

NOI Comment at 6–7; SONA April NOI Comment

at 6; SoundExchange Initial September NOI

Comment at 7. Because UPC numbers are ‘‘product-

level’’ identifiers and sound recordings can thus

have multiple UPC numbers (i.e., one for each

product on which the sound recording appears),

ARM and SoundExchange ask the MLC to be careful

about conveying the association between the UPC

number displayed in the database and the track at

issue to reduce confusion. ARM NPRM Comment at

2; SoundExchange NPRM Comment at 5.

92

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

(ee).

owners,’’’ explaining that ‘‘outside the

U.S., the ‘copyright ownership’ of the

work is attributed to the CMOs

managing the mechanical rights . . .’’

82

CISAC & BIEM also contended that

there is no ‘‘business need to include

the creator percentage shares in the

musical works’’ in the public database

(as opposed to copyright owner share(s),

which is required by the statute), ‘‘as

this information [is] not required to

license or distribute musical works, and

constitutes particularly sensitive and

confidential financial and business

information for creators and their

representatives.’’

83

SONA emphasized

the importance of the Office’s statement

that ‘‘there is no indication that foreign

copyright owners should have different

treatment under the blanket licensing

regime.’’

84

For its part, the MLC has

‘‘repeatedly maintained that it will

engage in non-discriminatory treatment

towards domestic and foreign copyright

owners, CMOs and administrators,’’ and

that ‘‘foreign CMOs should be treated no

differently in the database from other

mechanical rights administrators.’’

85

The MLC also stated that if a foreign

CMO ‘‘is an owner or administrator of

US copyright rights, it will be treated as

such, and in a non-discriminatory

manner as compared to other US

copyright owners or administrators.’’

86

Having considered these comments,

the Office reaffirms the general

requirement that the database 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,

irrespective of whether those persons or

entities are located outside the United

States. The interim rule thus adopts this

aspect of the proposed rule without

modification. To address CISAC &

BIEM’s concerns about the recognition

of copyright ownership by foreign

CMOs, the interim rule references the

statutory definitions of ‘‘copyright

owner’’ and ‘‘transfer of copyright

ownership,’’ and states that a copyright

owner includes entities, including

foreign CMOs, to which ‘‘copyright

ownership has been transferred through

an assignment, mortgage, exclusive

license, or any other conveyance,

alienation, or hypothecation of a

copyright or of any of the exclusive

rights comprised in a copyright,

whether or not it is limited in time or

place of effect, but not including a

nonexclusive license.’’

87

Where a

foreign CMO is the copyright owner of

the musical work under U.S. law, the

database should identify the foreign

CMO as the copyright owner, along with

its percentage share.

88

The database

should take a parallel approach with

respect to administration rights.

Depending upon the specific

arrangements in place, this may mean

that the database will need to display

information related to both the foreign

CMO as well as a U.S. sub-publisher or

administrator (along with percentage

shares).

89

And while the songwriter or

composer of the same musical work

must, by regulation, be identified in the

database as the songwriter or composer

(as discussed above), if he or she is not

the copyright owner due to assignment

of the copyright to a foreign CMO, he or

she would not have ownership shares to

display in the database. To the extent

that sub-publishers own or control

foreign musical works in the U.S. and

foreign CMOs do not (i.e., the foreign

CMOs do not have a U.S. right of

ownership or administration), the Office

concludes that the mechanical licensing

collective should not be required to

include information about such foreign

CMOs in the database. The Office

recognizes that including foreign CMO

information even when the CMOs are

not copyright owners or administrators

in the U.S. may be desired by certain

commenters, but the Office is reluctant

to require the MLC to include such

information at this time, given the

MLC’s indication that it needs to focus

on more core tasks. As noted above, in

considering whether to prescribe the

inclusion of additional fields beyond

those statutorily required, the Office

focused on fields that the record

indicates would 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 under the section

115 statutory license. Should confusion

arise after the musical works database

becomes publicly available, the Office is

willing to consider whether adjustment

to the interim rule is warranted.

5. Additional Information Related To

Identifying Musical Works and Sound

Recordings

Given the general consensus of

comments, the interim rule largely

adopts the proposed rule without

modification, which requires the public

database to include the following fields,

to the extent reasonably available to the

MLC: Alternate titles for musical works,

opus and catalog numbers of classical

compositions, and track duration,

90

version, and release date of sound

recordings.

91

It also incorporates the

statutory requirements 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.

92

The MLC notes that

‘‘[o]pus and catalog numbers for

classical compositions and UPC have

now been added to the DDEX format, so

the MLC will provide that information

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93

MLC NPRM Comment at 3.

94

ARM NPRM Comment at 3; SoundExchange

NPRM Comment at 5.

95

ARM NPRM Comment at 3.

96

Id. at 2.

97

See id. at 3.

98

MLC NPRM Comment at 3. See MLC Ex Parte

Letter #11 at 4 (contending that its proposed

language allows it to ‘‘operate under its reasonable

judgment as to which fields fit into the category’’).

99

See DLC Initial September NOI Comment at 20;

Music Innovation Consumers (‘‘MIC’’) Coalition

Initial September NOI Comment at 2; Barker Initial

September NOI Comment at 8–9.

100

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.

101

ASCAP & BMI Reply September NOI

Comment at 2.

102

85 FR at 22576; see 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’’).

103

85 FR at 58176.

104

DLC NPRM Comment at 3; DLC Ex Parte Letter

Dec. 11, 2020 (‘‘DLC Ex Parte Letter #8’’) at 3–4.

105

DLC Ex Parte Letter #8 at 4. The DLC also

states that ‘‘BMI has taken the position that it is not

barred from licensing mechanical rights in addition

to public performance rights, and ASCAP has

sought an amendment to its consent decree

permitting it to engage in such licensing,’’ and that

‘‘[i]f the PROs begin to administer mechanical rights

in the United States, then including information

about PRO affiliation in the MLC’s database will be

especially important.’’ Id.

106

Id.

107

MAC NPRM Comment at 4.

108

Recording Academy NPRM Comment at 3;

CISAC & BIEM April NOI Comment at 3; FMC April

NOI Comment at 2; SGA & SCL NPRM Comment

at 3–4; see also SONA NPRM Comment at 7

(accepting Office’s decision not to compel PRO

affiliation).

109

MLC April NOI Comment at 10.

to the extent it is reasonably available to

the MLC.’’

93

ARM and SoundExchange seek clarity

regarding the meaning of ‘‘release

date.’’

94

ARM maintains that because

‘‘it is not uncommon for a given sound

recording to be released on more than

one product, each with its own release

date,’’ ‘‘the release date included in the

database must reflect the actual, not the

intended, release date,’’

95

and

‘‘regulations should prohibit the MLC

from publicly displaying any data about

a sound recording prior to its actual

release date.’’

96

The Office agrees that

‘‘release date’’ should not be an

intended release date; rather, it should

reflect the date on which the recording

was first released. The Office

encourages the MLC to include an

explanation of release date in its

glossary.

97

Finally, the MLC contends that the

phrase ‘‘other non-confidential

information commonly used to assist in

associating sound recordings with

musical works’’ is vague, and suggests

changing it to ‘‘other non-confidential

information that the MLC reasonably

believes would be useful to assist in

associating sound recordings with

musical works.’’

98

After carefully

considering the statute, legislative

history, and comments, the Office agrees

that the MLC should have some

flexibility to include additional

information that may be helpful for

matching purposes, but is also mindful

that the phrase proposed by the NPRM

was taken directly from the statute.

Accordingly, the Office has adjusted the

interim rule to add the phrase

‘‘reasonably believes, based on common

usage’’ for consistency with the statute

(i.e., the MLC is required to include, to

the extent reasonably available to it,

other non-confidential information that

it reasonably believes, based on

common usage, would be useful to

assist in associating sound recordings

with musical works).

6. Performing Rights Organization

Affiliation

In response to the September NOI, a

few commenters maintained that the

public database should include PRO

affiliation.

99

By contrast, the MLC and

FMC raised concerns about including

and maintaining PRO affiliation in the

public database.

100

The largest PROs,

the American Society of Composers,

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

Broadcast Music, Inc. (‘‘BMI’’), also

objected, stating 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,’’

‘‘administration of data with respect to

the licensing of public performing rights

does not require government

intervention.’’

101

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.’’

102

Similarly, the Office

declined to require the inclusion of PRO

affiliation in the proposed rule.

103

In response to the NPRM, the DLC

asked the Office to reconsider and

include PRO affiliation in the public

database.

104

The DLC contends that PRO

affiliation may aid matching in some

instances, giving the example of

songwriters affiliated with ASCAP being

able to ‘‘target their searches of the

MLC’s database for works that the MLC

has affiliated with ASCAP,’’ and ‘‘more

readily confirm that the PRO and MLC

databases contain consistent

information regarding information such

as share splits and unique identifiers’’

(i.e., ‘‘mak[ing] the MLC database a

useful cross-check for PRO data’’).

105

The DLC asks that the MLC ‘‘not throw

away valuable musical works

metadata,’’ and states it ‘‘would not be

opposed to an accommodation such as

a six-month transition period for this

aspect of the database.’’

106

MAC

similarly requests inclusion of PRO

affiliation.

107

By contrast, CISAC &

BEIM, FMC, Recording Academy, and

SGA & SCL agree it should not be

included, with Recording Academy

stating that ‘‘information related to

public performance rights goes beyond

the scope of the MMA, which is focused

on mechanical rights.’’

108

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

. . .’’

109

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 at this

time. The Office recognizes that PRO

affiliation is desired by certain

commenters, particularly licensees, for

transparency purposes, and that the

record contains some limited

suggestions that it could be a useful data

point in the MLC’s core project of

matching works under the mechanical

license. Without further information,

the Office is reluctant to require the

MLC to include such information, given

the statutory prohibition against

administering performance licenses and

the MLC’s suggestion that it needs to

focus on more core tasks. In addition, in

a related rulemaking, the Office

declined to require that musical work

copyright owners provide information

related to PRO affiliation in connection

with the statutory obligation to

undertake commercially reasonably

efforts to deliver sound recording

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110

85 FR 58114, 58121 (Sept. 17, 2020).

111

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

FR at 58176–77.

112

See DLC Initial September NOI Comment at

20; SoundExchange Initial September NOI

Comment at 10; CISAC & BIEM April NOI Comment

at 3; FMC April NOI Comment at 2; SoundExchange

April NOI Comment at 4–5; SONA April NOI

Comment at 9.

113

MLC April NOI Comment at 12.

114

MLC Ex Parte Letter #7 at 4.

115

MLC April NOI Comment at 12.

116

85 FR at 58189.

117

85 FR at 22576; 85 FR at 58177; 17 U.S.C.

115(d)(3)(M)(i); id. at 115(d)(3)(D)(ix)(II)(aa).

118

CISAC & BIEM NPRM Comment at 2–3.

SoundExchange asserts that ‘‘the regulations

[should] make clear that, in addition to ‘archiving

and maintaining such historical data,’ the MLC

shall make such historical data available to the

public.’’ SoundExchange NPRM Comment at 4. The

interim rule, like the proposed rule, identifies the

categories of information that must be included in

the public musical works database, which includes

historical information. See 85 FR at 58188 (‘‘This

section prescribes the rules under which the

mechanical licensing collective will provide

information relating to musical works (and shares

of such works), and sound recordings in which the

musical works are embodied, in the public musical

works database prescribed by 17 U.S.C.

115(d)(3)(E). . . .’’).

119

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

120

Barker Initial September NOI Comment at 4.

121

MLC Reply September NOI Comment at 19,

App. at 10–11; see also 85 FR at 22532–33.

122

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 (‘‘DLC

Ex Parte Letter #3’’) at 5.

123

85 FR at 22576.

124

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

SCL April NOI Comment at 8; SONA April NOI

Comment at 2–3.

125

MLC April NOI Comment at 10.

126

Recording Academy April NOI Comment at 3.

See also Recording Academy NPRM Comment at 3

(‘‘The decision not to require the inclusion of

termination information in the public database is

prudent and appropriate.’’).

127

85 FR at 58178.

128

SGA & SCL NPRM Comment at 4.

information to the MLC.

110

Given that

the MLC intends to source musical work

information from copyright owners or

administrators, requiring the MLC to

‘‘pass through’’ PRO affiliation from

DMPs may potentially be confusing as

to the source of such information or

result in incorrect or conflicting

information. After the MLC has been up

and running, the Office is willing to

consider whether modifications to the

interim rule prove necessary on this

subject. In the meantime, as previously

noted by the Office, not requiring the

MLC to include PRO affiliation does not

inhibit the MLC from optionally

including such information.

111

Should

the MLC decide to include PRO

affiliation in the database and source

such information from DMPs’ reports of

usage, the Office encourages the MLC to

include an explanation of PRO

affiliation and the sourcing of such

information in its glossary.

7. Historical Data

In response to the September NOI and

April NOI, multiple commenters

asserted that the public database should

maintain and make historical ownership

information available.

112

For its part,

the MLC stated 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.’’

113

The MLC

confirmed 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.’’

114

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.’’

115

The proposed rule adopted the MLC’s

request for flexibility as to the most

appropriate method for archiving and

maintaining historical data to track

ownership and other information

changes in the database, stating 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.

116

No commenters objected to this

aspect of the proposed rule. The Office

continues to believe that granting the

MLC discretion in how to display such

historical information is appropriate,

particularly given the complexity of

ownership information for sound

recordings (discussed below).

Accordingly, the interim rule adopts

this aspect of the proposed rule without

modification. 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.

117

CISAC & BIEM did seek clarity

on whether the database will include

historical information for both musical

works and sound recordings.

118

The

Office confirms that the interim rule

broadly covers information changes in

the database, which covers information

relating to both musical works and

sound recordings.

8. Terminations

Title 17 allows authors or their heirs,

under certain circumstances, to

terminate an agreement that previously

granted one or more of the author’s

exclusive rights to a third party.

119

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.’’

120

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.

121

The

DLC objected to this request.

122

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.

123

The

DLC, SGA & SCL, and SONA support

including information concerning the

termination of grants of rights by

copyright creators in the public

database.

124

By contrast, the MLC

contended that it ‘‘should not be

required to include in the public

database information regarding statutory

termination of musical works per

se.’’

125

The Recording Academy asked

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.’’

126

The proposed rule did not require the

mechanical licensing collective to

include termination information in the

public database, an approach that is

adopted by the interim rule.

127

While in

response to the NPRM, SGA & SCL

reiterate their viewpoint that this

information should be required, at this

time, the Office is not convinced this

requirement is necessary in light of the

statutory obligation to maintain an up-

to-date ownership database.

128

Indeed,

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129

MLC April NOI Comment at 9.

130

MLC Reply September NOI Comment at 34.

131

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 by

some other third party’’) (footnote omitted); DLC

Initial September NOI Comment at 20; DLC Reply

September NOI Comment at Add. A–15–16; 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.’’).

132

DLC April NOI Comment at 4; SoundExchange

Initial September NOI Comment at 10–11.

133

A2IM & RIAA Reply September NOI Comment

at 2–3 (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.’’).

134

MLC April NOI Comment at 12.

135

MLC Ex Parte Letter #7 at 4.

136

Id. at 2.

137

85 FR at 58189.

138

Id. at 58178.

139

Id.

140

Id.

141

ARM NPRM Comment at 3; SoundExchange

NPRM Comment at 3.

142

ARM NPRM Comment at 3; CISAC & BIEM

NPRM Comment at 2.

143

MLC Ex Parte Letter #11 at 5.

144

See id. (noting ‘‘the importance of flexibility

in precisely how such information is provided

online to ensure coherent displays and a quality

user experience’’).

145

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

146

RIAA Initial September NOI Comment at 2

(footnote omitted). 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.

the MLC has noted its intention to

include information regarding

administrators that license musical

works and/or collect royalties for such

works,

129

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,’’

130

which

presumably should include updated

ownership information that may be

relevant for works that are being

exploited after exercise of the

termination right. The Office’s

conclusion does not restrict the MLC

from optionally including such

information.

9. Data Provenance

In response to both notifications of

inquiry, commenters overwhelmingly

supported having the public musical

works database include data provenance

information.

131

The DLC and

SoundExchange contend that including

data provenance information will allow

users of the database to make their own

judgments as to its reliability.

132

Others

noted that for sound recordings, first-

hand data is more likely to be

accurate.

133

For its part, the MLC

maintains that it ‘‘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.’’

134

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.’’

135

For musical works

information, the MLC maintains that it

‘‘will be sourced from copyright

owners.’’

136

The proposed rule would require the

MLC to include data provenance

information for sound recording

information in the public database,

though it grants the MLC some

discretion on how to display such

information.

137

The proposed rule

would not require the MLC to include

data provenance information for

musical work information, as the MLC

intends to source musical works

information from copyright owners

(which commenters generally

supported).

138

Specifically, the Office

noted that ‘‘data provenance issues

appear to be especially relevant to

sound recording information in the

public database,’’ particularly ‘‘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.’’

139

The Office sought public

input on this aspect of the proposed

rule.

140

ARM and SoundExchange both ask

for regulations to require the MLC to

identify the actual person or entity from

which the information came, as opposed

to including a categorical description

such as ‘‘digital music provider’’ or

‘‘usage report,’’ though ARM does ‘‘not

oppose inclusion of those sorts of

descriptors along with the party

name.’’

141

In addition, ARM and CISAC

& BIEM contend that the database

should also include data provenance

information regarding musical works

information, with ARM stating that data

provenance information for musical

works ‘‘would be of similar benefit to

users of the database, particularly those

who are required to pay mechanical

royalties outside of the blanket

license.’’

142

For its part, the MLC

‘‘confirmed that it will include in the

database DMP names and DPID

information where it receives it.’’

143

Accordingly, the interim rule states that

for sound recording information

received from a digital music provider,

the MLC shall include the name of the

digital music provider. Because the

MLC has stated that it will source

musical work information from

copyright owners and administrators of

those works, and because (as noted

above) copyright owners and

administrators will already be included

in the database, the Office concludes at

this time that the regulations do not

need to require data provenance

information for musical works. Should

future instances of confusion suggest

that modifications to the interim rule

are necessary, the Office is willing to

reconsider this subject. The interim rule

does not dictate the precise format in

which such information is made

available in the database.

144

C. 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 the database

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

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

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Id. at 3. Those concerns were echoed in ex

parte meetings with individual record labels. See

Universal Music Group (‘‘UMG’’) & RIAA Ex Parte

Letter Dec. 9, 2019; 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 Dec. 9, 2019 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. 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 Dec. 17,

2020). ‘‘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 quoting

DDEX, DDEX Release Notification Standard Starter

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

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

MusicMetadata_DDEX_V1.pdf).

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.

153

ARM NPRM Comment at 10, U.S. Copyright

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

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

0001.

154

MLC April NOI Comment at 13. See also

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

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.’’).

155

DLC Letter July 13, 2020 at 10 (stating ‘‘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’’).

156

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’’).

157

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

that DMPs can satisfy this obligation by reporting

information in the following fields: LabelName and

PLine. See 37 CFR 210.27(e)(4).

158

85 FR at 58180.

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)’’).

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

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 Office sought

public comment regarding which data

should be displayed 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.

151

In response, ARM did 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

For DPID,

the Office understands that ARM does

not object to including the DPID party’s

name, 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.’’

153

The MLC ‘‘ha[d] 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.’’

154

The DLC

stated that LabelName and Pline ‘‘are

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

a highly valuable data field,’’ and

contended 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.

155

The Recording

Academy, although acknowledging that

‘‘DDEX ERN information is an important

source of reliable and authoritative data

about a sound recording,’’ asserted 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.’’

156

The proposed rule tentatively

concluded 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 did not require the MLC

to include DPID in the public database.

In case the MLC later chooses to include

DPID in the public database, 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

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.

157

In light

of numerous comments expressing

similar views, the Office tentatively

concluded 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.

158

Regarding labeling, the Office

tentatively declined to regulate the

precise names of these fields,

159

although the proposed rule precluded

the MLC from labeling either the PLine

or LabelName field ‘‘sound recording

copyright owner,’’ and required the

MLC to consider industry practices

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160

The same limitation applies if the MLC elects

to include DPID information.

161

85 FR at 58180 (quoting MLC Ex Parte Letter

#7 at 4).

162

Id.

163

Id. (quoting MLC Ex Parte Letter #7 at 4).

164

Id. (quoting DDEX NPRM Comment at 1, U.S.

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

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

0005-0001).

165

ARM NPRM Comment at 3–4.

166

Id. at 4.

167

SoundExchange NPRM Comment at 4.

168

A2IM & RIAA Reply September NOI Comment

at 9; CISAC & BIEM Reply September NOI

Comment at 8; SoundExchange Initial September

NOI Comment at 12; RIAA Initial September NOI

Comment at 10; ARM April NOI Comment at 6–7;

Recording Academy April NOI Comment at 3–4.

169

MLC Reply September NOI Comment at 36–

37; MLC April NOI Comment at 13.

170

See ARM NPRM Comment at 4; MLC NPRM

Comment at 4; Recording Academy NPRM

Comment at 3; SoundExchange NPRM Comment at

5–6.

171

ARM NPRM Comment at 4.

172

SoundExchange NPRM Comment at 6.

173

MLC Ex Parte Letter #11 at 5.

174

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

175

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

176

85 FR at 58180.

177

See id. at 58180–81; ARM Ex Parte Letter July

27, 2020 at 1–2; ARM April NOI Comment at 3;

ARM NPRM Comment at 6, U.S. Copyright Office

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

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

0001; Jessop Initial September NOI Comment at 3;

SoundExchange Initial September NOI Comment at

12; DLC Reply September NOI Comment at 10; DLC

Ex Parte Letter #3 at 2. During this proceeding,

RIAA designated SoundExchange as the

authoritative source of ISRC data in the United

States. RIAA, RIAA Designates SoundExchange as

when labeling fields in the public

database to reduce the likelihood of user

confusion.

160

The Office also expressed

appreciation that the MLC intends to

‘‘make available in the database a

glossary or key, which would include

field descriptors.’’

161

The Office

specifically encouraged ‘‘the MLC to

consider ARM’s labeling suggestions

with respect to the PLine and

LabelName fields.’’

162

The Office

strongly disagreed with the MLC’s

notion that ‘‘the names or labels

assigned to these fields in the public

database is not ultimately the MLC’s

decision,’’ and that ‘‘it is ultimately at

DDEX’s discretion.’’

163

The Office

explained that ‘‘[w]hile 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’ (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.’’

164

The Office received no comments in

opposition to this aspect of the

proposed rule. In response, ARM agreed

with the Office’s decision to include

LabelName and PLine in the public

database, prohibit the MLC from

labeling either field ‘‘sound recording

copyright owner,’’ and require that the

MLC ‘‘consider industry practices when

labeling fields in the public database to

reduce the likelihood of user

confusion.’’

165

ARM also reiterated its

labeling suggestions for the PLine and

LabelName fields.

166

Similarly,

SoundExchange ‘‘welcome[d]’’ the

Office’s approach of prohibiting the

MLC from identifying either the PLine

or LabelName field as the ‘‘Sound

Recording Copyright Owner,’’ and

directing the MLC to consider industry

practices when labeling fields in the

public database to reduce the likelihood

of user confusion.

167

Given the overwhelming support

expressed in the comments, and for all

of the reasons given in the NPRM, the

interim rule adopts this aspect of the

proposed rule without modification.

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. ARM, A2IM

& RIAA, CISAC & BIEM, Recording

Academy, and SoundExchange agreed

that the public database should display

such a disclaimer.

168

And the MLC itself

has agreed to display a disclaimer that

its database should not be considered an

authoritative source for sound recording

ownership information.

169

The proposed rule would require 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 ownership

information, and explains the labeling

of information in the database related to

sound recording copyright owner,

including the ‘‘LabelName’’ and

‘‘PLine’’ fields. The proposed rule

would not require that the disclaimer

include a link to SoundExchange’s ISRC

Search database.

The proposed rule was largely

supported, and is now adopted without

modification.

170

Because the MLC

intends to populate the public musical

works database with sound recording

information from reports of usage

(discussed below), ARM did suggest that

the disclaimer ‘‘explain that the sound

recording data displayed in the database

has been provided by users of the sound

recordings, not by the owners or

distributors of the sound recordings,’’

and that ‘‘MLC require users to click on

the disclaimer to acknowledge that they

have seen and accepted it.’’

171

SoundExchange agrees, noting that it is

‘‘critically important the MLC’s

disclaimer concerning sound recording

information be clear and prominent, and

perhaps linked to a more detailed

explanation of the issue, because this

design decision carries a significant risk

of confusing the public, which needs to

understand what the MLC Database is

and what it is not.’’

172

For its part, the

MLC believes having the disclaimer

state that sound recording information

has been provided by users of the sound

recordings ‘‘may be confusing to the

public, as sound recording information

reported by DMPs will largely be the

data provided by the respective record

labels.’’

173

Given that the proposed rule requires

the MLC to include a conspicuous

disclaimer that states that the database

is not an authoritative source for sound

recording ownership information, and

explain the labeling of information

related to sound recording copyright

owner, including the ‘‘LabelName’’ and

‘‘PLine’’ fields, the Office adopts this

aspect of the proposed rule without

modification. The Office endorses

SoundExchange’s suggestion that the

MLC consider providing a more detailed

explanation of the issue, and also notes

that the rule does not prohibit the MLC

from linking to SoundExchange’s ISRC

Search database.

3. Populating and Deduplication of

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.’’

174

As

noted above, 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.’’

175

As discussed in the NPRM,

throughout this and parallel

rulemakings, ‘‘commenters have

expressed concern about the MLC using

non-authoritative sources to populate

the sound recording information in the

public database.’’

176

Some commenters,

including several representing recorded

music interests, maintained that sound

recording data in the public database

should be taken from copyright owners

or an authoritative source (e.g.,

SoundExchange) rather than DMPs.

177

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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/.

178

DLC Reply September NOI Comment at 10.

179

DLC Ex Parte Letter #3 at 2.

180

MLC Initial September NOI Comment at 24.

181

MLC Ex Parte Letter #7 at 2.

182

85 FR at 58181.

183

Id.; 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 (record labels ‘‘anticipate making frequent use

of the MLC database’’).

184

85 FR at 58181; see 17 U.S.C. 115(d)(3)(E)(i),

(ii)(IV)(bb), (iii)(I)(dd). 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.’’ A2IM &

RIAA Reply September NOI Comment at 2.

185

85 FR at 58181 (citing 17 U.S.C.

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

186

Id. at 58182.

187

Id.

188

Id.

189

SoundExchange NPRM Comment at 7.

190

MLC NPRM Comment at 4.

191

Id. at 4–5.

192

Id. at 5.

193

Id.

Though raised in the context of data

collection by DMPs, as opposed to

populating the public database, the DLC

supported the MLC obtaining 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).’’

178

The DLC further

maintained 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.’’

179

By contrast, the MLC stated that while

it intends to use SoundExchange as one

source of data about sound recordings,

it intends to primarily rely on data

received from DMPs to populate sound

recording information in the

database.

180

The MLC added that

receiving unaltered sound recording

data from DMPs, as it sought to have

required in a separate proceeding,

would ‘‘both improve the MLC’s ability

to match musical works to sound

recordings’’ and ‘‘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.’’

181

The NPRM invited the MLC to

reassess how it will populate sound

recording information in the public

database, noting commenters’ concerns

about using non-authoritative sources,

and that adopting a requirement for

DMPs to report unaltered sound

recording data fields need not drive

display considerations with respect to

the public database.

182

The Office stated

that ‘‘the MMA anticipates a general

reliability of the sound recording

information appearing in the public

database,’’

183

and that ‘‘[w]hile 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 disparate attendant metadata or

not.

185

In the NPRM, the Office also

noted the potential that by passing

through inaccurate or confusing sound

recording information received by DMPs

in the database, such inaccuracies or

confusion in the public database could

translate into inaccuracies in royalty

statements to musical work copyright

owners.

186

Further, because the statute

requires the MLC to grant free bulk-

access to digital music providers, such

access ‘‘seems less meaningful if [it]

were to mean regurgitating the same

information from reports of usage back

to digital music providers.’’

187

While

the proposed regulatory language did

not address the manner in which the

MLC populates sound recording

information in the database or the

deduplication of sound recording

records (i.e., eliminating duplicate or

redundant sound recording records), the

Office invited further comment on these

issues.

188

In response, though commenters did

not express additional concerns about

the MLC’s plans to populate sound

recording information in the database,

SoundExchange did note that ‘‘the

MLC’s reluctance to include and

organize its data around authoritative

sound recording information . . .

represents a missed opportunity to

develop a resource with authoritative

linkages between sound recordings and

musical works that would be of

significantly greater value for

participants in the ecosystem.’’

189

The

MLC stated that because the database is

‘‘musical works-driven,’’ ‘‘it should be

populated in such a way to assist

owners of musical works in identifying

uses of their works by DMPs so they can

be paid royalties to which they are

entitled.’’

190

The MLC maintains that

‘‘normalizing’’ sound recording data

‘‘may be useful to sound recording

copyright owners, but that neither

serves the primary purpose of the MMA

nor necessarily helps musical work

copyright owners.’’

191

Rather, the MLC

asserts, ‘‘there could be hundreds of

different recorded versions of a popular

musical work ..., including cover

versions, live versions, and remastered

versions,’’ and the musical work

copyright owner ‘‘wants to see in the

database all of those hundreds of

different recordings associated with its

musical work when it searches for that

musical work, and it also wants to see

all of the uses by the different DMPs of

each of those different recordings

because it is to be paid for each such

use.’’

192

The MLC added that, given the

requirement for DMPs to provide data

unaltered from what they receive from

labels, ‘‘that means that the data the

MLC receives from the DMPs will itself

be ‘authoritative’ because it comes from

the labels.’’

193

The Office appreciates comments

from the various parties on these issues.

The interim rule adopts the proposed

flexible approach for the MLC to

determine the best way to populate the

database and display sound recording

information. The Office notes, however,

that achieving the purpose of the

database (i.e., reducing the number of

unmatched musical works by accurately

identifying musical work copyright

owners so they can be paid what they

are owed by DMPs operating under the

section 115 statutory license) requires

accurate information to be presented to

musical work copyright owners (and the

public) in a user-friendly and

meaningful manner. Should a copyright

owner be confronted with thousands of

entries of the identical sound recording

in the database (as opposed to

numerous, but different, sound

recordings embodying the musical

work) that are not linked or associated,

and each entry represents a single use

of a sound recording instead of its

identity, the Office questions the

meaningfulness of such information.

The Office is thus encouraged that MLC

will work to use unaltered data ‘‘after it

begins to receive it in September 2021’’

‘‘as ‘keys’ to ‘roll up’ into one set of

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194

MLC NPRM Comment at 6. The MLC asked

that it be able to defer development on this project

until at least October 2021, after it has started

receiving and can review unaltered data, to provide

it with time to complete development of the

database’s core functionality. Id.

195

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) (sound recording information fields

proposed in §210.27(e)(1)).

196

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

197

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

198

Id.

199

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

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

200

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

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

201

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

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

202

85 FR at 58189; see Muzzey NPRM Comment

at 1 (‘‘It is crucial that the MLC database be

searchable and completely public-facing . . .’’). The

MLC has advised that ‘‘[i]n the initial version [of

the database], the searchable fields are planned to

be: (a) Work Title; (b) Work MLC Song Code; (c)

ISWC; (d) Writer Name; (e) Writer IPI name number;

(f) Publisher Name; (g) Publisher IPI name number;

and (h) MLC Publisher Number,’’ and that

‘‘additional searchable fields may be added in the

future.’’ MLC Ex Parte Letter #11 at 3.

203

85 FR at 58183.

204

Id. at 58184.

205

Recording Academy NPRM Comment at 3;

SONA NPRM Comment at 7–8; SoundExchange

NPRM Comment at 5; ARM NPRM Comment at 4.

206

MLC NPRM Comment at 7.

207

Id.

208

MLC Ex Parte Letter #11 at 2.

209

Id.

210

Id.

211

85 FR at 58182–83 (citing A2IM & RIAA Reply

September NOI Comment at 7, FMC Reply

September NOI Comment at 3, MAC Initial

September NOI Comment at 2, Recording Academy

Initial September NOI Comment at 4,

SoundExchange Reply September NOI Comment at

9).

212

MAC NPRM Comment at 3.

213

Id. at 4. The Office notes that to the extent

such information is provided in royalty statements

to musical work copyright owners from the MLC,

as noted above, there are no restrictions on the use

of those statements by copyright owners.

metadata different sound recording

metadata reported by DMPs in usage

reports for an identical sound

recording.’’

194

If, after the MLC starts

receiving unaltered data from DMPs, it

proves appropriate to develop more

specific regulatory guidance, the Office

is amenable to reconsideration. As even

the MLC has acknowledged, sound

recording information may be helpful

for matching purposes,

195

so its

inclusion does not serve only sound

recording owners.

D. Access to Information in the Public

Musical Works Database

As noted above, the statute directs the

Office to ‘‘establish requirements by

regulations to ensure the usability,

interoperability, and usage restrictions

of the [public] musical works

database.’’

196

The database must ‘‘be

made available to members of the public

in a searchable, online format, free of

charge.’’

197

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 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.’’

198

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.’’

199

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.’’

200

And

‘‘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.’’

201

1. Method of Access

The proposed rule required the MLC

to ‘‘make the musical works database

available to members of the public in a

searchable, real-time, online format, free

of charge.’’

202

The Office agreed that the

MLC should—especially initially, due to

its start-up nature—have some

discretion regarding the precise format

in which it provides bulk access to the

public database.

203

Given, however,

‘‘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,’’ the Office proposed

that the MLC must begin providing bulk

access to the public database through

APIs starting July 1, 2021.

204

The proposed rule was applauded by

commenters.

205

The MLC stated its

intention to provide bulk access through

an API as proposed, but raised concerns

regarding implementation by July 1,

2021.

206

It noted in particular that it

‘‘will not be able to commence the work

to develop the API until after it has

begun issuing royalty statements in the

Spring of 2021’’ and requested that the

deadline be extended to December 31,

2021 ‘‘to ensure sufficient development

time.’’

207

The MLC asks for the

extension ‘‘to allow time to conduct

proper consultation with stakeholders

throughout the industry regarding their

requirements, gather their feedback, and

then design, test and implement, so as

to provide the most useful API,’’ but did

indicate that ‘‘it will aim to implement

API access sooner in 2021 where that is

reasonably practical.’’

208

In the

meantime, the MLC will be ‘‘providing

access through Secure File Transfer

Protocol (SFTP) on a weekly basis,’’

which is ‘‘expected to be available by

January 2021.’’

209

Because the proposed

rule requires the MLC to provide bulk

access in a ‘‘real-time’’ format, the MLC

asks that the rule be adjusted to delete

the words ‘‘real-time.’’

210

After carefully considering this issue,

the Office agrees that having time to

seek industry feedback while

developing an API increases the chances

of developing one that meets the needs

of industry participants. Accordingly,

the interim rule provides the MLC until

December 31, 2021 to implement bulk

access through an API. The Office

declines, however, to remove the words

‘‘real-time’’ from the rule. The Office

raised the issue of ‘‘real-time’’ access in

response to the DLC’s initial proposal

that bulk access be provided through a

weekly file, and multiple commenters

objected, asserting that real-time access

to the public database is necessary to

meet the goals of the statute and avoid

industry reliance upon stale data.

211

Given the regulation, the Office thus

encourages the MLC to consider offering

bulk access via SFTP on a more frequent

basis until the API is available.

Next, MAC requests that the

regulations require the MLC to provide

songwriters with ‘‘access to the same

level of certain data as . . . publishers,

digital music providers, labels, etc., free

of charge.’’

212

Specifically, MAC

proposed that any songwriter who has

authored or co-authored any musical

work should have access ‘‘to the

following information at the same time

it is provided to the publisher or

administrator of record’’: (1) The

amount of revenue each DSP has paid

to the MLC for the work, (2) the amount

of revenue the MLC has paid to the

respective publisher or administrator,

and (3) the total stream count of each

work per DSP.

213

When asked about songwriter access,

the MLC made some overtures towards

ensuring songwriter access for purposes

of correcting data. The MLC confirmed

that ‘‘the public musical works database

will be viewable by the general public

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214

MLC Ex Parte Letter #11 at 5.

215

Id.

216

Id.; see SONA NPRM Comment at 3 (‘‘[I]t is

important that songwriters have access to data

information available to music publishers and

musical work administrators, such as the MLC’s

Data Quality Initiative (‘DQI’).’’).

217

The Office has long rejected the suggestion to

place a confidentiality requirement on copyright

owners receiving statements of account under the

section 115 license due to the inclusion of

‘‘competitively sensitive’’ information (e.g.,

licensees’ overall revenues, royalty payments to

record companies and performance rights

organizations, and overall usage). 79 FR 56190,

56206 (Sept. 18, 2014). Rather, ‘‘once the statements

of account have been delivered to the copyright

owners, there should be no restrictions on the

copyright owners’ ability to use the statements or

disclose their contents.’’ Id. In a recent parallel

rulemaking, the Office again declined to adopt

confidentiality restrictions on copyright owners

receiving statements of account. 85 FR at 22561.

218

85 FR at 58184.

219

Id.

220

Id.; 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.’’).

221

Anonymous NPRM Comment at 1.

222

MLC NPRM Comment at 8.

223

MLC Ex Parte Letter #11 at 3.

224

Id.

225

Id.

226

CISAC & BIEM ‘‘strongly encourage the Office

to . . . include CMOs as significant copyright

owners among the entities which will have access

to the Database and UP files in bulk format free of

charge, as is currently the proposed rule for

‘significant licensees.’’’ CISAC & BIEM NPRM

Comment at 3. The Office notes that the regulations

mirror the statute in granting bulk access free of

charge to those entities enumerated in the statute

(i.e., digital music providers, significant nonblanket

licensees in compliance with their obligations

under 17 U.S.C. 115(d)(6), and the Office). See 17

U.S.C. 115(d)(3)(E)(v)(I)–(IV).

227

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

339, at 8–9; Conf. Rep. at 7.

228

MLC Initial September NOI Comment at 25;

MLC April NOI Comment at 15; DLC Reply

September NOI Comment Add. at A–17; DLC April

NOI Comment at 5.

without any need to register for the MLC

Portal,’’ as the portal ‘‘is the platform for

copyright owners and administrators of

musical works used in covered

activities, where they can register their

works, claim their shares and provide

the necessary information so as to

receive royalty distributions.’’

214

The

MLC also noted that ‘‘everyone,

including songwriters, may participate

in the DQI.’’

215

Finally, the MLC said

that it intends ‘‘to develop user-friendly

methods for songwriters to access

information about their musical works

and to enable songwriters to notify their

administrators of a possible issue with

a work’s data or registration.’’

216

Providing songwriters with the ability

to review and correct information about

their works is important, but the Office

also believes that transparency militates

in favor of affording songwriters

(including those who are not self-

published) easier access to information

about use of their works. The Office

appreciates the MLC’s commitment to

developing user-friendly methods for

songwriters, specifically, to access

information about their works. The

Office further notes that nothing

prevents the MLC from working with

publishers and administrators to offer

non-self-administered songwriters

permissions-based access to view stream

count and revenue information for their

musical works, and encourages the MLC

to explore such options.

217

2. Marginal Cost

The Office proposed to allow the MLC

to determine the best pricing

information in light of its operations, so

long as the fee does not exceed the

marginal cost to the mechanical

licensing collective of providing the

database to such person or entity, which

shall not be unreasonable.

218

In

rejecting comments suggesting that the

cost of gathering data should be factored

into these costs, the NPRM stated ‘‘it

[was] 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.’’

219

The Office also noted that the

legislative history emphasizes the

importance of accessibility to the public

database, and that requiring third

parties to pay more than the ‘‘marginal

cost’’ could create commercial

disadvantages that the MMA sought to

eliminate.

220

In response, an anonymous

commenter stated that the term

‘‘marginal cost’’ is vague and should be

defined ‘‘by either establishing a

monetary limit or a method for the

mechanical licensing collective to

determine the amount.’’

221

The MLC

expressed concern that the phrase

‘‘which shall not be unreasonable’’ ‘‘is

inconsistent with the requirement that

access be provided at ‘marginal cost’

because, if access is provided at

‘marginal cost,’ such cost can never be

‘unreasonable,’’’ and that ‘‘the qualifier

opens the door to a third party argument

that what is, in fact, marginal cost is

nevertheless ‘unreasonable’ cost.’’

222

The MLC does not believe ‘‘marginal

cost’’ ‘‘authoriz[es] fees to recoup the

overhead costs of design and

maintenance of the SFTP or API,’’ but

rather would ‘‘be set at an amount

estimated to recoup the actual cost of

provision of the bulk data to the

particular person or entity requesting

it.’’

223

Currently, it estimates the SFTP

bulk access to cost approximately $100

‘‘to cover one-time setup and a single

copy of the database, and a monthly

standard fee of $25 which offers access

to all weekly copies’’ (though ‘‘these

expected fees may change, as [the MLC]

has no precedent for this access and

[associated] costs’’).

224

The MLC also

confirmed that ‘‘it intends to charge the

same fee to all members of the public

(who are not entitled to free access) for

SFTP access,’’ though ‘‘it expects API

access would be under a different fee

structure and amounts than SFTP

access, since the marginal costs will be

different.’’

225

After considering the MLC’s

comments, including its stated plans,

the Office agrees that the phrase ‘‘which

shall not be unreasonable’’ can be

deleted from the rule.

226

This aspect of

the proposed rule is otherwise adopted

without modification.

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.’’

227

The MLC

and DLC suggested providing the

mechanical licensing collective

discretion to block third parties from

bulk access to the public database after

attempts to bypass marginal cost

recovery.

228

In light of these comments, the NPRM

proposed 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, the

Office also proposed to require the

mechanical licensing collective to

identify such persons and entities in its

annual report and explain the reason(s)

for suspension.

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229

ARM NPRM Comment at 5.

230

MLC Ex Parte Letter #11 at 5.

231

Id.

232

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

233

DLC Initial September NOI Comment at 21.

234

DLC April NOI Comment at 5.

235

Music Reports April NOI Comment at 7.

236

CISAC & BIEM NPRM Comment at 4; see

CISAC & BIEM Initial September NOI Comment at

4; CISAC & BIEM April NOI Comment at 3.

237

FMC April NOI Comment at 3.

238

MLC April NOI Comment at 15; see MLC

Reply September NOI Comment at 37.

239

MLC April NOI Comment at 16. CISAC &

BIEM contend that ‘‘the Regulations [should]

include clear language on the MLC’s full

compliance with data protection laws, and in

particular with the European General Data

Protection Regulation, as the MLC will process

personal data of EU creators.’’ CISAC & BIEM

NPRM Comment 3. As noted by the Office in the

September NOI, the MLC has ‘‘committed to

establishing an information security management

system that is certified with ISO/IEC 27001 and

meets the EU General Data Protection Regulation

requirements, and other applicable laws.’’ 84 FR at

49972; see Proposal of Mechanical Licensing

Collective, Inc. at 50, U.S. Copyright Office Dkt. No.

2018–11.

240

MLC April NOI Comment at 16 n.9.

241

85 FR at 58186.

242

MLC Ex Parte Letter #11 at 5.

243

The MLC, Terms of Use, https://

www.themlc.com/terms-use (last visited Dec. 18,

2020).

244

Id.

In response, while ARM

‘‘wholeheartedly support[s] giving the

MLC the authority to suspend database

access for individuals or entities that

appear to be engaging in unlawful

activity,’’ it expresses concern about

terms of use or restrictions

‘‘inadvertently disadvantag[ing] bona

fide users of the database or creat[ing]

unintended barriers to legitimate uses of

the data,’’ and encouraged the Office to

consider an appeals process for those

whose access the MLC seeks to suspend

or restrict, or ‘‘some sort of graduated

sanctions regime, whereby repeat

offenders are subjected to increasingly

stringent penalties while inadvertent, or

one-time, offenders are subjected to less

stringent penalties.’’

229

On the other

hand, the MLC ‘‘strongly opposes any

change to the rule that would prevent

the MLC from restricting access to users

who have violated the terms of use,

which could impede the MLC’s ability

to prevent fraud and abuse.’’

230

The

MLC stated ‘‘that it will have terms of

use for the website, the Portal, and the

bulk access to the musical works

database,’’ noting that the ‘‘current

version of the website Terms of Use is

accessible at https://www.themlc.com/

terms-use.’’

231

After considering this issue, the Office

has largely adopted this aspect of the

proposed rule without modification.

The Office agrees that the MLC should

have flexibility to block third parties

where persons have engaged in

unlawful activity with respect to the

database and that in the cases of fraud

the MLC may need to take immediate

action. The Office encourages the MLC,

however, in developing its terms of use

for the database, to create an appeals

process for those who have had access

suspended to reduce the likelihood of

good-faith users being denied access.

Should the MLC fail to create an appeals

process and the Office learns of

individuals or entities being

unreasonably denied access to the

database, the Office is willing to

consider whether further regulatory

action on this issue is warranted.

4. Restrictions on Use

The MMA directs the Office to issue

regulations regarding ‘‘usage

restrictions’’ with respect to the

database.

232

Comments have been

mixed in response to the Office’s

solicitations on this issue, generally

centering around whether the Office

should specify conditions the MLC

should or should not include in its

database terms of use.

The DLC argues that ‘‘licensees

should be able use the data they receive

from the MLC for any legal purpose,’’

233

and that ‘‘abusive access can be

adequately addressed by empowering

the MLC to block efforts to bypass

marginal cost recovery.’’

234

Music

Reports agrees that data in the public

database should be available for any

legal use.

235

By contrast, CISAC & BIEM

seek ‘‘regulations defining strict terms

and conditions, including prohibition

for DMPs to use data for purposes other

than processing uses and managing

licenses and collaborating with the MLC

in data collection,’’ and generally

‘‘prohibiting commercial uses and

allowing exclusively lookup

functions.’’

236

FMC is ‘‘inclined to want

to see some reasonable terms and

conditions’’ regarding use of the public

database, and suggests that ‘‘[i]t’s

entirely appropriate for the Office to

offer a floor.’’

237

The MLC agrees 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 intends to

‘‘include such limitation in its terms of

use in the database.’’

238

To avoid abuse

by bad actors, the MLC ‘‘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 ‘‘further

intends to protect other types of PII.’’

239

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.’’

240

As noted, the Office proposed

requiring the MLC 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

MLC’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 MLC must

identify any persons and entities in its

annual report that have had database

access suspended and explain the

reason(s) for such suspension. In issuing

the proposed rule, the Office also noted

that ‘‘database terms of use should not

be overly broad or impose unnecessary

restrictions upon good faith users.’’

241

The MLC states ‘‘that it will have

terms of use for the website, the Portal,

and the bulk access to the musical

works database,’’ and that the ‘‘current

version of the website Terms of Use is

accessible at https://www.themlc.com/

terms-use.’’

242

In reviewing the MLC’s

terms of use for its website, the Office

notes that multiple provisions would

not be appropriate to apply to the public

musical works database, and so the

Office directs the MLC to develop

separate terms of use for the database

and make them publicly available. For

example, the terms of use for the MLC’s

website states that that a user may ‘‘not

download, reproduce, redistribute,

retransmit, publish, resell, distribute,

publicly display or otherwise use or

exploit any portion of the website in any

medium without The MLC’s prior

written authorization,’’ and that ‘‘any

use . . . of any of The MLC Materials

and website other than for [ ] personal

use is strictly prohibited.’’

243

In

addition, the website’s terms of use state

that ‘‘[t]he website, including all content

. . . are owned and/or licensed by The

MLC and are legally protected.’’

244

Use

of information from the musical works

database for commercial purposes

would not be misappropriating or using

that information for an improper

purpose, and the MLC and its vendors

do not own the data in the musical

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245

S. Rep. No. 115–339, at 7.

246

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

247

The MLC, Mission and Principles, https://

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

Dec. 18, 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 Dec. 18,

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.’’).

248

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.’’).

249

85 FR at 58186; 85 FR at 22572.

250

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

Rep. at 7.

251

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

252

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

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

2020) (web page no longer available) (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’’).

253

85 FR at 58187. This information included

selection of board members, selection of new

vendors, any application of unclaimed accrued

royalties on an interim basis to defray MLC costs,

average processing and distribution times for

distributing royalties, and any suspension of access

to an individual or entity attempting to bypass the

MLC’s right to charge a fee for bulk access to the

public database. 85 FR at 58187.

254

Castle April NOI Comment at 16 (contending

the Office should create ‘‘a complaint webform with

someone to read the complaints as they come in as

part of the Office’s oversight role’’); Lowery Reply

September NOI Comment at 11 (stating ‘‘regulations

should provide for a feedback loop that songwriters

can avail themselves of that the Copyright Office

must take into account when determining its re-

designation’’).

255

85 FR at 58187–88 (quoting 17 U.S.C.

115(d)(3)(D)(ix)(I)(bb)).

256

Id. at 58188.

257

Id. See U.S. Copyright Office, Section 512 of

policy/section512/section-512-full-report.pdf

(suggesting that Congress could thus ‘‘modify the

language of section 512(c)(2) to provide that the

designated agent’s information be not just ‘on its

website in a location accessible to the public,’ but

also ‘prominently displayed’’’); 17 U.S.C. 512(c)(2).

258

85 FR at 58188.

259

See, e.g., MLC NRPM Comment at 8; DLC

NRPM Comment at 1; Recording Academy NRPM

Comment at 3–4.

260

MLC NRPM Comment at 8.

261

DLC NRPM Comment at 1.

262

See Castle NRPM Comment at 17; Recording

Academy NRPM Comment at 3–4; 17 U.S.C.

115(d)(7)(C).

263

MAC NRPM Comment at 2; Recording

Academy NRPM Comment at 3–4. MAC also made

some suggestions regarding MLC Board

membership, including songwriters receiving

notifications when Board member vacancies

become available, and having the MLC’s website

identify any vacant seat(s) and describing the

application process. MAC NRPM Comment at 2–3.

The MLC has advised that ‘‘it posts information

about such vacancies on its website and uses its

many channels of outreach to push information

about such vacancies to the industry.’’ MLC Ex

Parte Letter #11 at 6. The MLC also stated that ‘‘it

accepts through its website suggestions for

candidates for board and advisory committee seats,

to ensure that candidates may be considered for a

seat when one becomes available,’’ and that the

‘‘suggestion form is available at[] https://

themlc.com/get-involved.’’ Id.

works database. Accordingly, while the

Office is adopting its proposed approach

of providing the MLC flexibility to

develop reasonable terms of use, the

interim rule clarifies the Office’s

expectation that the MLC’s terms of use

or other policies governing use of the

database must comply with the Office’s

regulations.

E. Transparency of MLC Operations;

Annual Reporting

The legislative history and statute

envision the MLC ‘‘operat[ing] in a

transparent and accountable

manner’’

245

and ensuring that its

‘‘policies and practices . . . are

transparent and accountable.’’

246

The

MLC has expressed its commitment to

transparency, both by including

transparency as one of its four key

principles underpinning its operations

on its current website,

247

and in

repeated written comments to the

Office.

248

The Office has noted that one

main avenue for MLC transparency is

through its annual report.

249

By statute,

the MLC must publish an annual report

‘‘[n]ot later than June 30 of each year

commencing 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)

its projected annual budget; (6)

aggregated royalty receipts and

payments; (7) expenses that are more

than ten percent of the annual budget;

and (8) its efforts to locate and identify

copyright owners of unmatched musical

works (and shares of works).

250

The

MLC must deliver a copy of the annual

report to the Register of Copyrights and

make this report publicly available.

251

The MLC itself has previously

recognized that its annual report is one

way in which it intends to ‘‘promote

transparency.’’

252

Although the phrase

‘‘[n]ot later than June 30 of each year

commencing after the license

availability date’’ could be read as

requiring the first annual report to cover

the first year of operations after the

license availability date (i.e., issued in

June 2022 for year 2021), as discussed

below, a number of reasons compel the

Office to adjust the interim rule to

require the MLC to issue a written

public update in December 2021, albeit

shortened, regarding its operations.

In response to overwhelming desire

for increased transparency regarding the

MLC’s activities expressed by

commenters, and the ability of the

annual report to provide such

transparency, the proposed rule

required the MLC to disclose certain

information in its annual report besides

the statutorily-required categories of

information.

253

In response to

comments suggesting the creation of a

‘‘feedback loop’’ to receive

complaints,

254

the Office noted that the

statute already requires the mechanical

licensing collective to ‘‘identify a point

of contact for publisher inquiries and

complaints with timely redress.’’

255

The

proposed rule emphasized this

responsibility by codifying the

requirement and expanding it to include

a point of contact to receive complaints

regarding the public musical works

database and/or the collective’s

activities.

256

The name and contact

information for the point of contact

must be made prominently available on

the MLC’s website.

257

In addition, the

Office noted that it ‘‘always welcomes

feedback relevant to its statutory duties

or service,’’ and that ‘‘[m]embers of the

public may communicate with the

Office through the webform available

https://www.copyright.gov/help’’ for

inquiries or comments with respect to

the MLC or MMA.

258

Commenters overall approved of the

proposed rule.

259

The MLC ‘‘generally

agree[d] with the proposed rules as they

concern annual reporting, and believes

that the Office’s additions to what is

required in the statute . . . will aid in

providing the transparency that the

MMA envisions and that the MLC is

committed to providing.’’

260

The DLC

similarly voiced support, adding, ‘‘[i]t

will be critical, however, for the Office

to enforce not just the bare letter of the

regulations, but the spirit of full

transparency that animates those

regulations.’’

261

Two commenters

commended the Office for requiring

disclosure of any application of

unclaimed royalties on an interim basis

to defray current collective total costs,

as permitted under the MMA, ‘‘subject

to future reimbursement of such

royalties from future collections of the

assessment.’’

262

MAC and the

Recording Academy welcomed

requirements to disclose the

appointment and selection criteria of

new board members,

263

and the

Recording Academy also applauded

disclosure requirements for average

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264

Recording Academy NRPM Comment at 4.

265

FMC NRPM Comment at 2; see also id. (‘‘The

Office can require the MLC to disclose what it is

doing to prevent any vendor from being too

operationally enmeshed with the MLC that it either

enjoys an unfair advantage through that

relationship, or that it would be practically

impossible for another vendor to step in.’’).

266

SoundExchange NRPM Comment at 8; see also

id. (‘‘[I]t is in the public’s interest, including the

interest of publishers, songwriters, and DMPs, to

ensure that the operations of the MLC do not

become so inextricably intertwined with its vendors

that DMPs believe that they must turn to the MLC’s

vendors for extrastatutory licensing requirements or

that it becomes difficult if not impossible for the

MLC to switch vendors in the future.’’).

267

SoundExchange NRPM Comment at 9.

268

DLC NPRM Comment at 2.

269

MAC NRPM Comment at 3.

270

MLC NRPM Comment at 9.

271

Id.

272

85 FR at 22565. The definition of ‘‘confidential

information’’ in the proposed rule would cover

financial information disclosed to the mechanical

licensing collective by copyright owners, including

publishers. Id. at 22566–67.

273

See The MLC, Mission and Principles, https://

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

Dec. 18, 2020) (‘‘The MLC will build trust by

operating transparently.’’).

274

CISAC & BIEM NPRM Comment at 4.

275

Id. at 5

276

Castle NRPM Comment at 21.

277

SoundExchange NRPM Comment at 9.

278

SGA & SCL NPRM Comment at 10; see also

Castle NRPM Comment at 20.

SGA & SCL also suggests the MLC’s bylaws

‘‘indicate an enormous bias in favor of near-total

control by the music publisher board majority over

—among other things— the selection of songwriter

members of the board’s advisory committees, and

the election of songwriter board members

themselves.’’ SGA & SCL NPRM Comment at 10.

Under the MLC’s existing bylaws, songwriter

members of the MLC’s board of directors are

recommended for appointment by a vote of the

‘‘Songwriter Directors of the Board’’ and

recommendations for MLC Board appointments

‘‘shall be sent to the Register of Copyrights’’ and are

appointed ‘‘[i]f the Register of Copyrights approves

and the Librarian of Congress appoints . . .’’ The

MLC, The MLC Bylaws, https://themlc.com/sites/

default/files/2020-05/Bylaws

%20of%20The%20MLC.pdf (last visited Dec. 18,

2020).

In addition, SGA, SCL & Music Creators North

America, Inc. (‘‘MCNA’’) ‘‘formally petition and

processing and distribution times for

distributing royalties, stating it ‘will

promote accountability and hopefully

give songwriters confidence in the new

system.’’

264

A number of commenters sought

broader disclosure requirements

regarding the MLC’s vendors hired to

help administer the statutory license,

expressing concern about their potential

commercial advantage. For example,

FMC stated that ‘‘Congress intended to

encourage a healthy competitive

marketplace for other kinds of licensing

businesses and intermediaries,’’ and so

‘‘it’s important that MLC’s chosen

vendors not be able to leverage their

status with the MLC to advantage

themselves in other business activities

not covered under the MMA.’’

265

SoundExchange similarly expressed

concern about potential commercial

advantage of MLC vendors, noting that

Congress ‘‘intended to preserve a

vibrant and competitive marketplace for

intermediaries [besides the MLC] who

provide other license administration

services,’’ and this intent would be

frustrated ‘‘[i]f the MLC’s vendors were

to receive an unfair advantage in the

music licensing marketplace through

means such as preferred access to digital

music providers or referrals by the MLC

for extrastatutory business opportunities

in a manner not available to their

competitors.’’

266

SoundExchange

proposes requiring the MLC to disclose

additional vendor information,

including ‘‘[a] description of all work

performed by the existing vendors for

the MLC in the previous year and the

current year; [s]teps the MLC has taken

and will take to ensure separation

between the MLC and its vendors; and

[s]teps the MLC has taken to ensure

transferability of functions from one

vendor to another, and an assessment of

any risks to transferability that the MLC

foresees.’’

267

The DLC expresses similar

concern about MLC vendors ‘‘gain[ing]

a special competitive advantage in

related marketplaces—such as the

administration of voluntary licenses—

merely by dint of their association with

the collective responsible for licensing

all mechanical rights in the United

States.’’

268

Finally, MAC recommends

that ‘‘information regarding the

selection of vendors should be made

available prior to vendors being

selected’’ to provide opportunity for

interested parties to weigh in on

potential vendors.

269

While not opposing general disclosure

requirements relating to vendors, the

MLC balks at disclosing ‘‘any

performance reviews’’ of the MLC’s

vendors that are ‘‘performing materially

significant technology or operational

services related to the [MLC’s] matching

and royalty accounting activities.’’

270

The MLC contends that ‘‘performance

reviews might include sensitive or

confidential information, including

about individuals who work for any

such vendor,’’ and requests that the rule

instead ‘‘permit the MLC to summarize

or extract the key findings of any

reviews, and to include such summaries

or extracts in the annual report rather

than the full performance reviews

themselves.’’

271

The Office appreciates the

overwhelming desire from commenters

to have the MLC’s annual report include

information about the performance and

selection of its vendors. The Office

accepts the MLC’s representation that

vendor performance reviews may

include sensitive or confidential

information. The interim rule thus

retains the requirement that the MLC

disclose the criteria used in deciding to

select its vendors to perform materially

significant technology or operational

services, but adjusts the language so as

to require summaries and key findings

from any vendor performance reviews

rather than the verbatim reviews. To

address concerns of MLC vendors

gaining an unfair competitive advantage

by virtue of being MLC vendors, in a

parallel rulemaking, the Office has

proposed a rule prohibiting vendors of

the MLC (as well as its agents,

consultants, and independent

contractors) from using confidential

information for any purpose other than

the ordinary course of their work for the

MLC.

272

In addition, the interim rule in

this proceeding clarifies that agents,

consultants, vendors, and independent

contractors of the MLC must pay the

marginal cost to acquire bulk access to

the information in the musical works

database for purposes other than the

ordinary course of their work for the

MLC. Beyond the requirements codified

in this interim rule, the Office

encourages the MLC to consider the

commenters’ requests for additional

disclosure, including information about

soliciting and choosing vendors in

advance of any vendor selection, and

engaging in the highest level of

transparency consistent with

operational realities and protection of

confidential information.

273

Commenters recommended certain

additional disclosures. CISAC & BIEM

suggest requiring publication of the

MLC Dispute Resolution Committee’s

rules and procedures,

274

as well as

disclosure of the amount of unclaimed

royalties received by the MLC

275

and

any audits and their results of the MLC

or blanket licensees.

276

SoundExchange

proposes that the annual report

‘‘include a certification by the MLC that

it is in compliance with the statute’s

limitation that the collective may only

administer blanket mechanical licenses

and other mechanical licenses for digital

distribution.’’

277

SGA & SCL express

concern that the proposed rule did not

reflect its request for the MLC annual

report to include ‘‘an independent

report by the board’s music creator

representatives on their activities in

support of songwriter and composer

interests, the handling of conflict-

Published date	31 December 2020
Citation	85 FR 86803
Record Number	2020-28958
Section	Rules and Regulations
Court	Copyright Office,Library Of Congress

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

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