The Public Musical Works Database and Transparency of the Mechanical Licensing Collective, 86803-86824 [2020-28958]

Download as PDF Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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 wellbeing 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: khammond on DSKJM1Z7X2PROD with RULES ■ § 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 39 Public Law 105–277, 112 Stat. 2681 (1998). VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 (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 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 86803 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 U.S. Copyright Office, Library of Congress. ACTION: Interim rule. AGENCY: 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. SUMMARY: 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, E:\FR\FM\31DER1.SGM 31DER1 86804 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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 7 17 khammond on DSKJM1Z7X2PROD with RULES 1 Public Law 115–264, 132 Stat. 3676 (2018). 2 See S. Rep. No. 115–339, at 1–2 (2018); Report and Section-by-Section Analysis of H.R. 1551 by the Chairmen and Ranking Members of Senate and House Judiciary Committees, at 1 (2018), https:// www.copyright.gov/legislation/mma_conference_ report.pdf (‘‘Conf. Rep.’’). 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. VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 U.S.C. 115(d)(12)(A). 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. 8 See PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 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 selfinterest,’’ 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 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). E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 21 Id. at 49973. All rulemaking activity, including public comments, as well as educational material regarding the Music Modernization Act, can currently be accessed via navigation from https:// www.copyright.gov/music-modernization/. Specifically, comments received in response to the September 2019 notification of inquiry are available at https://www.regulations.gov/ docketBrowser?rpp=25&po=0&dct=PS&D=COLC2019-0002&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/mmaimplementation/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 . . .’’). VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 openended 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. 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. PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 86805 • 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 28 17 U.S.C. 115(d)(3)(E), (e)(20). 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. 29 See E:\FR\FM\31DER1.SGM 31DER1 86806 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES B. Categories of Information in the Public Musical Works Database The statute requires the MLC to include various types of information in 31 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). VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 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). PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 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. 37 Id. at 115(d)(3)(E)(ii)(V), (iii)(II). 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). 38 Conf. E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 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-20200004-0001; 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.’’). VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 48 85 FR at 58173. & 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. 49 SGA PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 86807 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 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 E:\FR\FM\31DER1.SGM 31DER1 86808 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES 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 www.copyright.gov/policy/unclaimed-royalties/ 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). VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 nondiscriminatory basis, and all natural and 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. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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. subpublisher, 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 75 MLC Reply September NOI Comment at 44. 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%208-1820.pdf (last visited Dec. 18, 2020). 79 85 FR at 58175. 80 Id. 81 Id. 76 85 E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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 82 CISAC & BIEM NPRM Comment at 1–2. 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. khammond on DSKJM1Z7X2PROD with RULES 83 Id. VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 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 coadministration 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)’’). PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 86809 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 nonconfidential 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 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 ‘‘productlevel’’ 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). E:\FR\FM\31DER1.SGM 31DER1 86810 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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 93 MLC NPRM Comment at 3. 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 khammond on DSKJM1Z7X2PROD with RULES 94 ARM VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 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 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 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 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. E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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 110 85 FR 58114, 58121 (Sept. 17, 2020). 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. khammond on DSKJM1Z7X2PROD with RULES 111 17 VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 116 85 FR at 58189. 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). 117 85 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 86811 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 upto-date ownership database.128 Indeed, 120 Barker Initial September NOI Comment at 4. 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. 121 MLC E:\FR\FM\31DER1.SGM 31DER1 86812 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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, firsthand 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 129 MLC April NOI Comment at 9. 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. khammond on DSKJM1Z7X2PROD with RULES 130 MLC VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 ‘‘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 135 MLC Ex Parte Letter #7 at 4. 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. 136 Id. PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 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 143 MLC Ex Parte Letter #11 at 5. 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. 144 See E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 148 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. VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 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-2020-00050001. 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/COLC2020-0005-0001 (‘‘[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’’). PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 86813 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 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)’’). E:\FR\FM\31DER1.SGM 31DER1 86814 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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.177 173 MLC Ex Parte Letter #11 at 5. 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-2020-00050001; 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 khammond on DSKJM1Z7X2PROD with RULES 174 17 160 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-20200005-0001). 165 ARM NPRM Comment at 3–4. 166 Id. at 4. 167 SoundExchange NPRM Comment at 4. VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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. PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 Authoritative Source of ISRC Data in the United States (July 22, 2020), https://www.riaa.com/riaadesignates-soundexchange-as-authoritative-sourceof-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 VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 bulkaccess 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 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. PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 86815 ‘‘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 190 MLC NPRM Comment at 4. at 4–5. 192 Id. at 5. 193 Id. 191 Id. E:\FR\FM\31DER1.SGM 31DER1 86816 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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 khammond on DSKJM1Z7X2PROD with RULES 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 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. VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 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. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 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 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. E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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 selfpublished) 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 214 MLC Ex Parte Letter #11 at 5. khammond on DSKJM1Z7X2PROD with RULES 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. VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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.’’ 225 219 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. PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 86817 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. 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. E:\FR\FM\31DER1.SGM 31DER1 86818 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 229 ARM 230 MLC NPRM Comment at 5. Ex Parte Letter #11 at 5. 231 Id. 232 17 U.S.C. 115(d)(3)(E)(vi). VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 233 DLC Initial September NOI Comment at 21. 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. 234 DLC PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 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, nonpublic 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 240 MLC April NOI Comment at 16 n.9. FR at 58186. 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. 241 85 242 MLC E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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.251 245 S. Rep. No. 115–339, at 7. 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). khammond on DSKJM1Z7X2PROD with RULES 246 17 VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 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 redesignation’’). 255 85 FR at 58187–88 (quoting 17 U.S.C. 115(d)(3)(D)(ix)(I)(bb)). 256 Id. at 58188. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 86819 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 257 Id. See U.S. Copyright Office, Section 512 of title 17 159 (2020), https://www.copyright.gov/ 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. E:\FR\FM\31DER1.SGM 31DER1 86820 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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— 264 Recording Academy NRPM Comment at 4. 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. khammond on DSKJM1Z7X2PROD with RULES 265 FMC VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 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 268 DLC NPRM Comment at 2. 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. 269 MAC PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 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 conflictrelated problems by the board and its various controlled committees, and the issues of conflict that remain to be addressed and resolved.’’ 278 The DLC 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 E:\FR\FM\31DER1.SGM 31DER1 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES suggests that the Office ‘‘invit[e] comments on the MLC’s annual reports, to get insight from a broad range of stakeholders both about whether the report fulfills the MLC’s transparency obligations and whether it raises (or fails to raise) any issues related to the sound functioning of the mechanical licensing system.’’ 279 After carefully considering these comments, the Office concludes that some suggestions are already addressed by the statute, and some may not need to be addressed by regulation. For example, the statute already requires the MLC to submit to periodic audits, which must be made publicly available.280 Likewise, the MLC’s database will provide insight into the amount of unmatched usages reported to the MLC, as well as a mechanism for claiming such works. Similarly, as the statute prohibits the MLC from administering licenses apart from the mechanical license, requiring the MLC to certify that it is in compliance with the law appears unnecessary. The Office agrees it could be beneficial for the rules and procedures for the MLC’s Dispute Resolution Committee to be made publicly available, and encourages their publication as soon as practicable given the MLC’s obligation to have ‘‘transparent and accountable’’ policies and procedures.281 Though the interim rule, like the proposed rule, does not require an independent report from the board’s music creator representatives, the Office reiterates its expectation that ‘‘the MLC . . . give voice to its board’s songwriter representatives as well as its statutory committees, whether through its annual reporting or other public announcements.’’ 282 Songwriters on the MLC’s board of directors are not a request that the [Office] consider recommending to Congress that the board of the MLC be expanded by six songwriter members, selected for service in a fair and open manner by the music creator community under the oversight of the USCO and the Librarian of Congress, to ensure at least the possibility of equity and fairness in the conduct of MLC activities that only a balanced board can provide.’’ SGA & SCL NPRM Comment at 13. For such statutory proposals, the Office encourages SGA, SCL & MCNA to participate in future roundtables for the Office’s congressionallymandated policy study that will recommend best practices that the MLC may implement to effectively identify and locate copyright owners with unclaimed royalties of musical works, encourage copyright owners to claim accrued royalties, and ultimately reduce the incidence of unclaimed royalties. See 85 FR 33735 (June 2, 2020). 279 DLC NRPM Comment at 2. 280 17 U.S.C. 115(d)(3)(D)(ix)(II)(aa), (cc). The Office also declines to require publication of audit results of blanket licensees, and notes such a requirement may implicate confidentiality obligations. 281 Id. at 115(d)(3)(D)(ix)(I)(aa). 282 85 FR at 58186 n.266. VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 separate entity and should participate with other members of the board to represent and collectively address songwriter concerns and interests. For its part, the MLC seeks modification of the proposed requirement to disclose ‘‘the average processing and distribution times for distributing royalties to copyright owners,’’ calling it ‘‘somewhat confusing.’’ 283 The MLC argues that ‘‘there are many different types of averages and methods of calculating averages, leaving room for misunderstanding,’’ and that ‘‘the rule should accommodate the inclusion in the annual report of the actual [ ] dates on which distributions were made to copyright owners during the preceding calendar year, as such information will inform copyright owners and other interest[ed] parties of the timeliness of payment.’’ 284 The MLC ‘‘intends to and will include in the annual report the dates on which distributions were made to copyright owners during the preceding calendar year, which will inform copyright owners and other interest parties of the timeliness of payment’’ and requests that the rule be modified to permit that information instead of ‘‘average processing and distribution times.’’ 285 The MLC suggests removing the word ‘‘average’’ as one possible solution.286 The Office believes that the proposed rule would allow the MLC to determine and explain the metrics it relies upon when reporting processing and distribution times. Indeed, the Office itself reports a variety of average processing times for copyright registration, with accompanying explanatory methodology material.287 The MLC’s core function is to collect and distribute royalties for covered activities; simply reporting the months in which the MLC distributes royalties—without disclosing how long the process of matching and distribution of royalties takes—provides limited meaningful insight into how the blanket license is functioning under the MLC’s administration (including for example, 283 MLC NRPM Comment at 8. Ex Parte Letter #11 at 6. 285 MLC NRPM Comment at 8. 286 MLC Ex Parte Letter #11 at 6. 287 See, e.g., U.S. Copyright Office, Registration Processing Times, https://www.copyright.gov/ registration/docs/processing-times-faqs/april-12020-september-30-2020.pd (last visited Dec. 20, 2020); see also ASCAP, My ASCAP Membership, https://www.ascap.com/help/my-ascapmembership (last visited Dec. 20, 2020) (‘‘For writers, there is a time lag of approximately seven (7) to eight (8) months between performances and royalty processing. . . . For publishers, there is a time lag of approximately six (6) months between performance and royalty processing.’’). 284 MLC PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 86821 by identifying external dependencies that may be contributing to delays in the MLC’s ability to identify musical works embodied in particular sound recordings and identify and locate corresponding musical work copyright owners).288 Accordingly, this aspect of the interim rule retains the general requirement, but in order to avoid any confusion, clarifies that the MLC has discretion as to the metrics it measures when reporting average times by stating that the MLC must disclose the manner in which it calculates processing and distribution times. Finally, as noted above, while the phrase ‘‘[n]ot later than June 30 of each year commencing after the license availability date’’ could be read as not requiring the first annual report until June 2022 (to cover year 2021), a number of reasons compel the Office to adjust the interim rule to require the MLC to issue a written public update regarding its operations in December 2021, in a potentially abbreviated version. Because the MLC was designated in July 2019,289 if the first annual report is issued in June 2022, that could mean three years without a formal written update on the MLC’s operations. This may frustrate the noted desire from commenters for transparency regarding the MLC’s operations.290 The Office is also mindful of the statutory five-year designation process for periodic review of the mechanical licensing collective’s performance.291 Additional written information from the MLC may help inform both the Office’s and the public’s understanding with respect to that period of the MLC’s performance. Finally, for musical works for which royalties have accrued but the copyright owner is unknown or not located, the 288 See 17 U.S.C. 115(d)(3)(C) (authorities and functions of mechanical licensing collective); 17 U.S.C. 115(d)(3)(B)(ii) (establishing five-year designation process for the Office to periodically review the mechanical licensing collective’s performance). 289 84 FR at 32274. 290 See, e.g., DLC September NOI Reply Comment at 28; MAC Initial September NOI Comment at 2; Music Innovation Consumers (‘‘MIC’’) Coalition Initial September NOI Comment at 3; Screen Composers Guild of Canada (‘‘SCGC’’) Reply Comments at 2, U.S. Copyright Office Dkt. No. 2018–11, available at https://www.regulations.gov/ docketBrowser?rpp=25&po=0&dct=PS&D=COLC2018-0011&refD=COLC-2018-0011-0001; Iconic Artists LLC Initial Comments at 2, U.S. Copyright Office Dkt. No. 2018–11, available at https:// www.regulations.gov/ docketBrowser?rpp=25&po=0&dct=PS&D=COLC2018-0011&refD=COLC-2018-0011-0001; see also The MLC, Mission and Principles, https:// themlc.com/mission-and-principles (last visited Dec. 18, 2020) (‘‘The MLC will build trust by operating transparently.’’). 291 17 U.S.C. 115(d)(3)(B)(ii). E:\FR\FM\31DER1.SGM 31DER1 86822 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations MLC must hold such royalties until at least January 1, 2023.292 If the first written report were received in June 2022, that may provide a short runway for public disclosure and feedback prior to the MLC potentially ‘‘engag[ing] in diligent, good-faith efforts to publicize’’ ‘‘any pending distribution of unclaimed accrued royalties and accrued interest, not less than 90 days before the date on which the distribution is made.’’ 293 Accordingly, the interim rule requires the MLC to issue by no later than December 31, 2021 and make available online for a period of not less than three years, a one-time report that contains, at a minimum, many of the categories of information required to be disclosed in the MLC’s annual report. The Office recognizes that certain categories of information for the annual report may not be applicable for the first six months after the license availability date, as the MLC would not have engaged in certain activities (e.g., aggregated royalty receipts and payments). Accordingly, the interim rule states that if it is not practicable for the MLC to provide a certain category of information that is required for the MLC’s annual report, the MLC may so state but shall explain the reason(s) for such impracticability and, as appropriate, may address such categories in an abbreviated fashion. List of Subjects in 37 CFR Part 210 Copyright, Phonorecords, Recordings. Interim Regulations For the reasons set forth in the preamble, the Copyright Office amends 37 CFR part 210 as follows: PART 210—COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING PHYSICAL AND DIGITAL PHONORECORDS OF NONDRAMATIC MUSICAL WORKS 1. The authority citation for part 210 continues to read as follows: ■ Authority: 17 U.S.C. 115, 702. 2. Add §§ 210.31 through 201.33 to read as follows: ■ khammond on DSKJM1Z7X2PROD with RULES § 210.31 Musical works database information. (a) General. 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 292 85 FR at 33738; 17 U.S.C. 115(d)(3)(H)(i), (J)(i)(I). 293 17 U.S.C. 115(d)(3)(J)(iii)(II)(dd). VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 works database prescribed by 17 U.S.C. 115(d)(3)(E), and to increase usability of the database. (b) Matched musical works. With respect to musical works (or shares thereof) where the copyright owners have been identified and located, the musical works database shall contain, at a minimum, the following: (1) Information regarding the musical work: (i) Musical work title(s); (ii) The copyright owner of the musical work (or share thereof), and the ownership percentage of that owner. The copyright owner of the musical work owns any one of the exclusive rights comprised in the copyright for that work. A copyright owner includes entities, including foreign collective management organizations (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; (iii) Contact information for the copyright owner of the musical work (or share thereof), which can be a post office box or similar designation, or a ‘‘care of’’ address (e.g., publisher); (iv) The mechanical licensing collective’s standard identifier for the musical work; and (v) To the extent reasonably available to the mechanical licensing collective: (A) Any alternative or parenthetical titles for the musical work; (B) ISWC; (C) Songwriter(s), with the mechanical licensing collective having the discretion to allow songwriters, or their authorized representatives, to have songwriter information listed anonymously or pseudonymously. The mechanical licensing collective shall develop and make publicly available a policy on how the collective will consider requests by copyright owners or administrators to change songwriter names to be listed anonymously or pseudonymously for matched musical works; (D) Administrator(s) or other authorized entity(ies) who license the musical work (or share thereof) and/or collect mechanical royalties for use of such musical work (or share thereof) in the United States; (E) ISNI(s) and/or IPI(s) for each musical work copyright owner, and, if different, songwriter, and administrator; (F) Unique identifier(s) assigned by the blanket licensee, if reported by the blanket licensee; and PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 (G) For classical compositions, opus and catalog numbers. (2) Information regarding the sound recording(s) in which the musical work is embodied, to the extent reasonably available to the mechanical licensing collective: (i) ISRC; (ii) Sound recording name(s), including all known alternative and parenthetical titles for the sound recording; (iii) Information related to the sound recording copyright owner, including LabelName and PLine. Should the mechanical licensing collective decide to include DDEX Party Identifier (DPID) in the public database, the DPID party’s name may be included, but not the numerical identifier; (iv) Featured artist(s); (v) Playing time; (vi) Version; (vii) Release date(s); (viii) Producer; (ix) UPC; and (x) Other non-confidential information that the MLC reasonably believes, based on common usage, would be useful to assist in associating sound recordings with musical works. (c) Unmatched musical works. With respect to musical works (or shares thereof) where the copyright owners have not been identified or located, the musical works database shall include, to the extent reasonably available to the mechanical licensing collective: (1) Information regarding the musical work: (i) Musical work title(s), including any alternative or parenthetical titles for the musical work; (ii) The ownership percentage of the musical work for which an owner has not been identified; (iii) If a musical work copyright owner has been identified but not located, the identity of such owner and the ownership percentage of that owner. The copyright owner of the musical work owns any one of the exclusive rights comprised in the copyright for that work. A copyright owner includes entities, including foreign collective management organizations (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; (iv) The mechanical licensing collective’s standard identifier for the musical work; (v) ISWC; E:\FR\FM\31DER1.SGM 31DER1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations (vi) Songwriter(s), with the mechanical licensing collective having the discretion to allow songwriters, or their authorized representatives, to have songwriter information listed anonymously or pseudonymously. The mechanical licensing collective shall develop and make publicly available a policy on how the collective will consider requests by copyright owners or administrators to change songwriter names to be listed anonymously or pseudonymously for unmatched musical works; (vii) Administrator(s) or other authorized entity(ies) who license the musical work (or share thereof) and/or collect mechanical royalties for use of such musical work (or share thereof) in the United States; (viii) ISNI(s) and/or IPI(s) for each musical work copyright owner, and, if different, songwriter and administrator; (ix) Unique identifier(s) assigned by the blanket licensee, if reported by the blanket licensee; and (x) For classical compositions, opus and catalog numbers. (2) Information regarding the sound recording(s) in which the musical work is embodied: (i) ISRC; (ii) Sound recording name(s), including all known alternative and parenthetical titles for the sound recording; (iii) Information related to the sound recording copyright owner, including LabelName and PLine. Should the mechanical licensing collective decide to include DDEX Party Identifier (DPID) in the public database, the DPID party’s name may be included, but not the numerical identifier; (iv) Featured artist(s); (v) Playing time; (vi) Version; (vii) Release date(s); (viii) Producer; (ix) UPC; and (x) Other non-confidential information that the MLC reasonably believes, based on common usage, would be useful 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. (d) Field labeling. The mechanical licensing collective shall consider industry practices when labeling fields in the public database to reduce the likelihood of user confusion, particularly regarding information relating to sound recording copyright owner. Fields displaying PLine, LabelName, or, if applicable, DPID, information may not on their own be VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 labeled ‘‘sound recording copyright owner.’’ (e) Data provenance. For information relating to sound recordings, the mechanical licensing collective shall identify the source of such information in the public musical works database. For sound recording information received from a digital music provider, the MLC shall include the name of the digital music provider. (f) Historical data. The mechanical licensing collective shall maintain at regular intervals historical records of the information contained in the public musical works database, including a record of changes to such database information and changes to the source of information in database fields, in order to allow tracking of changes to the ownership of musical works in the database over time. The mechanical licensing collective shall determine, in its reasonable discretion, the most appropriate method for archiving and maintaining such historical data to track ownership and other information changes in the database. (g) Personally identifiable information. The mechanical licensing collective shall not include in the public musical works database any individual’s Social Security Number (SSN), taxpayer identification number, financial account number(s), date of birth (DOB), or home address or personal email to the extent it is not musical work copyright owner contact information required under 17 U.S.C. 115(d)(3)(E)(ii)(III). The mechanical licensing collective shall also engage in reasonable, good-faith efforts to ensure that other personally identifying information (i.e., information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information that is linked or linkable to such specific individual), is not available in the public musical works database, other than to the extent it is required by law. (h) Disclaimer. The mechanical licensing collective shall include in the public-facing version of the musical works database a conspicuous disclaimer that states that the database is not an authoritative source for sound recording information, and explains the labeling of information related to sound recording copyright owner, including the ‘‘LabelName’’ and ‘‘PLine’’ fields. (i) Ownership. The data in the public musical works database prescribed by 17 U.S.C. 115(d)(3)(E) is public data not owned by the mechanical licensing collective or any of the collective’s employees, agents, consultants, vendors, or independent contractors. PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 86823 § 210.32 Musical works database usability, interoperability, and usage restrictions. This section prescribes rules under which the mechanical licensing collective shall ensure the usability, interoperability, and proper usage of the public musical works database created pursuant to 17 U.S.C. 115(d)(3)(E). (a) Database access. (1)(i) The mechanical licensing collective shall make the musical works database available to members of the public in a searchable, real-time, online format, free of charge. In addition, the mechanical licensing collective shall make the musical works database available in a bulk, real-time, machine-readable format through a process for bulk data management widely adopted among music rights administrators to: (A) Digital music providers operating under the authority of valid notices of license, and their authorized vendors, free of charge; (B) Significant nonblanket licensees in compliance with their obligations under 17 U.S.C. 115(d)(6), and their authorized vendors, free of charge; (C) The Register of Copyrights, free of charge; and (D) Any other person or entity, including agents, consultants, vendors, and independent contractors of the mechanical licensing collective for any purpose other than the ordinary course of their work for the mechanical licensing collective, for a fee not to exceed the marginal cost to the mechanical licensing collective of providing the database to such person or entity. (ii) Starting December 31, 2021, the mechanical licensing collective shall make the musical works database available at least in a bulk, real-time, machine-readable format under this paragraph (a)(1) through application programming interfaces (APIs). (2) Notwithstanding paragraph (a)(1) of this section, the mechanical licensing collective shall establish appropriate terms of use or other policies governing use of the database that allows the mechanical licensing collective to suspend access to any individual or entity that appears, in the mechanical licensing collective’s reasonable determination, to be attempting to bypass the mechanical licensing collective’s right to charge a fee to recover its marginal costs for bulk access outlined in 17 U.S.C. 115(d)(3)(E)(v)(V) 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 E:\FR\FM\31DER1.SGM 31DER1 86824 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations misappropriating or using information from the database for improper purposes. The mechanical licensing collective’s terms of use or other policies governing use of the database shall comply with this section. (b) Point of contact for inquiries and complaints. In accordance with its obligations under 17 U.S.C. 115(d)(3)(D)(ix)(I)(bb), the mechanical licensing collective shall designate a point of contact for inquiries and complaints with timely redress, including complaints regarding the public musical works database and/or the mechanical licensing collective’s activities. The mechanical licensing collective must make publicly available, including prominently on its website, the following information: (1) The name of the designated point of contact for inquiries and complaints. The designated point of contact may be an individual (e.g., ‘‘Jane Doe’’) or a specific position or title held by an individual at the mechanical licensing collective (e.g., ‘‘Customer Relations Manager’’). Only a single point of contact may be designated. (2) The physical mail address (street address or post office box), telephone number, and email address of the designated point of contact. khammond on DSKJM1Z7X2PROD with RULES § 210.33 Annual reporting by the mechanical licensing collective. (a) General. This section prescribes the rules under which the mechanical licensing collective will provide certain information in its annual report pursuant to 17 U.S.C. 115(d)(3)(D)(vii), and a one-time written update regarding the collective’s operations in 2021. (b) Contents. Each of the mechanical licensing collective’s annual reports shall contain, at a minimum, the following information: (1) The operational and licensing practices of the mechanical licensing collective; (2) How the mechanical licensing collective collects and distributes royalties, including the average processing and distribution times for distributing royalties for the preceding calendar year. The mechanical licensing collective shall disclose how it calculated processing and distribution times for distributing royalties for the preceding calendar year; (3) Budgeting and expenditures for the mechanical licensing collective; (4) The mechanical licensing collective’s total costs for the preceding calendar year; (5) The projected annual mechanical licensing collective budget; (6) Aggregated royalty receipts and payments; VerDate Sep<11>2014 17:03 Dec 30, 2020 Jkt 253001 (7) Expenses that are more than 10 percent of the annual mechanical licensing collective budget; (8) The efforts of the mechanical licensing collective to locate and identify copyright owners of unmatched musical works (and shares of works); (9) The mechanical licensing collective’s selection of board members and criteria used in selecting any new board members during the preceding calendar year; (10) The mechanical licensing collective’s selection of new vendors during the preceding calendar year, including the criteria used in deciding to select such vendors, and key findings from any performance reviews of the mechanical licensing collective’s current vendors. Such description shall include a general description of any new request for information (RFI) and/ or request for proposals (RFP) process, either copies of the relevant RFI and/or RFP or a list of the functional requirements covered in the RFI or RFP, the names of the parties responding to the RFI and/or RFP. In connection with the disclosure described in this paragraph (b)(10), the mechanical licensing collective shall not be required to disclose any confidential or sensitive business information. For the purposes of this paragraph (b)(10), ‘‘vendor’’ means any vendor performing materially significant technology or operational services related to the mechanical licensing collective’s matching and royalty accounting activities; (11) Whether during the preceding calendar year the mechanical licensing collective, pursuant to 17 U.S.C. 115(d)(7)(C), applied any unclaimed accrued royalties on an interim basis to defray costs in the event that the administrative assessment is inadequate to cover collective total costs, including the amount of unclaimed accrued royalties applied and plans for future reimbursement of such royalties from future collection of the assessment; and (12) Whether during the preceding calendar year the mechanical licensing collective suspended access to the public database to any individual or entity attempting to bypass the collective’s right to charge a fee to recover its marginal costs for bulk access outlined in 17 U.S.C. 115(d)(3)(E)(v)(V) 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 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 purposes. If the mechanical licensing collective so suspended access to the public database to any individual or entity, the annual report must identify such individual(s) and entity(ies) and provide the reason(s) for suspension. (c) December 31, 2021 Update. No later than December 31, 2021, the mechanical licensing collective shall post, and make available online for a period of not less than three years, a one-time written report that contains, at a minimum, the categories of information required in paragraph (b) of this section, addressing activities following the license availability date. If it is not practicable for the mechanical licensing collective to provide information in this one-time report regarding a certain category of information required under paragraph (b) of this section, the MLC may so state but shall explain the reason(s) for such impracticability and, as appropriate, may address such categories in an abbreviated fashion. Dated: December 21, 2020. Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office. Approved by: Carla D. Hayden, Librarian of Congress. [FR Doc. 2020–28958 Filed 12–30–20; 8:45 am] BILLING CODE 1410–30–P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 423 [CMS–4189–F] RIN 0938–AT94 Medicare Program; Secure Electronic Prior Authorization For Medicare Part D Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS). ACTION: Final rule. AGENCY: This final rule names a new transaction standard for the Medicare Prescription Drug Benefit program’s (Part D) e-prescribing program as required by the ‘‘Substance UseDisorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act’’ or the ‘‘SUPPORT Act.’’ Under the SUPPORT Act, the Secretary is required to adopt standards for the Part D e-prescribing SUMMARY: E:\FR\FM\31DER1.SGM 31DER1

Agencies

[Federal Register Volume 85, Number 251 (Thursday, December 31, 2020)]
[Rules and Regulations]
[Pages 86803-86824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28958]


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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.

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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 [email protected] or 
Anna B. Chauvet, Associate General Counsel,

[[Page 86804]]

by email at [email protected]. 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\
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    \1\ Public Law 115-264, 132 Stat. 3676 (2018).
    \2\ See S. Rep. No. 115-339, at 1-2 (2018); Report and Section-
by-Section Analysis of H.R. 1551 by the Chairmen and Ranking Members 
of Senate and House Judiciary Committees, at 1 (2018), https://www.copyright.gov/legislation/mma_conference_report.pdf (``Conf. 
Rep.'').
    \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).
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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\
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    \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.
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    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\
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    \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).
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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

[[Page 86805]]

should be considered relating to the general oversight of the MLC.\21\
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    \20\ 84 FR 49966, 49972 (Sept. 24, 2019).
    \21\ Id. at 49973. All rulemaking activity, including public 
comments, as well as educational material regarding the Music 
Modernization Act, can currently be accessed via navigation from 
https://www.copyright.gov/music-modernization/. Specifically, 
comments received in response to the September 2019 notification of 
inquiry are available at https://www.regulations.gov/docketBrowser?rpp=25&po=0&dct=PS&D=COLC-2019-0002&refD=COLC-2019-0002-0001, and comments received in response to the April 2020 
notification of inquiry 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.
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    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\
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    \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 . . .'').
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    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.
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    \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.'').
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    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\
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    \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.
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     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).
---------------------------------------------------------------------------

    \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.
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    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

[[Page 86806]]

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.
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    \31\ 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).
---------------------------------------------------------------------------

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\
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    \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).

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\
---------------------------------------------------------------------------

    \36\ Id. at 115(d)(3)(E)(iii).

    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\
---------------------------------------------------------------------------

    \37\ Id. at 115(d)(3)(E)(ii)(V), (iii)(II).
    \38\ Conf. Rep. at 7.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).

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[[Page 86807]]

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.
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \52\ MLC Ex Parte Letter #11 at 4.
    \53\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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

[[Page 86808]]

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\
---------------------------------------------------------------------------

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

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \67\ 17 U.S.C. 115(d)(3)(E)(ii)-(iii).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \79\ 85 FR at 58175.
    \80\ Id.
    \81\ Id.
---------------------------------------------------------------------------

    In response, CISAC & BIEM again expressed ``the need to have CMOs 
clearly recognized as `copyright

[[Page 86809]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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)'').
---------------------------------------------------------------------------

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

[[Page 86810]]

to the extent it is reasonably available to the MLC.'' \93\
---------------------------------------------------------------------------

    \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).
    \93\ MLC NPRM Comment at 3.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 86811]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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). . . .'').
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.'').
---------------------------------------------------------------------------

    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,

[[Page 86812]]

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.
---------------------------------------------------------------------------

    \127\ 85 FR at 58178.
    \128\ SGA & SCL NPRM Comment at 4.
    \129\ MLC April NOI Comment at 9.
    \130\ MLC Reply September NOI Comment at 34.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \137\ 85 FR at 58189.
    \138\ Id. at 58178.
    \139\ Id.
    \140\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

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

[[Page 86813]]

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\
---------------------------------------------------------------------------

    \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.
    \148\ 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 86814]]

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\
---------------------------------------------------------------------------

    \159\ See ARM April NOI Comment at 5 (suggesting that 
``LabelName'' be described as ``U.S. Releasing Party (if 
available),'' and that ``PLine'' be described as ``Sound Recording 
Owner of Record (who may not be the party that commercializes the 
recording; note that this party may change over time)'').
    \160\ The same limitation applies if the MLC elects to include 
DPID information.
    \161\ 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \165\ ARM NPRM Comment at 3-4.
    \166\ Id. at 4.
    \167\ SoundExchange NPRM Comment at 4.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \174\ 17 U.S.C. 115(d)(3)(E)(i).
    \175\ Id. at 115(d)(3)(E)(ii)(IV)(bb), (iii)(I)(dd).
---------------------------------------------------------------------------

    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\

[[Page 86815]]

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\
---------------------------------------------------------------------------

    \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 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \180\ MLC Initial September NOI Comment at 24.
    \181\ MLC Ex Parte Letter #7 at 2.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \189\ SoundExchange NPRM Comment at 7.
    \190\ MLC NPRM Comment at 4.
    \191\ Id. at 4-5.
    \192\ Id. at 5.
    \193\ Id.
---------------------------------------------------------------------------

    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

[[Page 86816]]

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.
---------------------------------------------------------------------------

    \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 Sec.  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 Sec.  
210.27(e)(1)).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 86817]]

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\
---------------------------------------------------------------------------

    \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').'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \221\ Anonymous NPRM Comment at 1.
    \222\ MLC NPRM Comment at 8.
    \223\ MLC Ex Parte Letter #11 at 3.
    \224\ Id.
    \225\ Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.

[[Page 86818]]

    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\
---------------------------------------------------------------------------

    \229\ ARM NPRM Comment at 5.
    \230\ MLC Ex Parte Letter #11 at 5.
    \231\ Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \232\ 17 U.S.C. 115(d)(3)(E)(vi).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \241\ 85 FR at 58186.
---------------------------------------------------------------------------

    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

[[Page 86819]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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 title 17 159 
(2020), https://www.copyright.gov/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.
---------------------------------------------------------------------------

    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

[[Page 86820]]

processing and distribution times for distributing royalties, stating 
it `will promote accountability and hopefully give songwriters 
confidence in the new system.'' \264\
---------------------------------------------------------------------------

    \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.
    \264\ Recording Academy NRPM Comment at 4.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \270\ MLC NRPM Comment at 9.
    \271\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.'').
---------------------------------------------------------------------------

    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-related problems by the 
board and its various controlled committees, and the issues of conflict 
that remain to be addressed and resolved.'' \278\ The DLC

[[Page 86821]]

suggests that the Office ``invit[e] comments on the MLC's annual 
reports, to get insight from a broad range of stakeholders both about 
whether the report fulfills the MLC's transparency obligations and 
whether it raises (or fails to raise) any issues related to the sound 
functioning of the mechanical licensing system.'' \279\
---------------------------------------------------------------------------

    \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 request that the [Office] 
consider recommending to Congress that the board of the MLC be 
expanded by six songwriter members, selected for service in a fair 
and open manner by the music creator community under the oversight 
of the USCO and the Librarian of Congress, to ensure at least the 
possibility of equity and fairness in the conduct of MLC activities 
that only a balanced board can provide.'' SGA & SCL NPRM Comment at 
13. For such statutory proposals, the Office encourages SGA, SCL & 
MCNA to participate in future roundtables for the Office's 
congressionally-mandated policy study that will recommend best 
practices that the MLC may implement to effectively identify and 
locate copyright owners with unclaimed royalties of musical works, 
encourage copyright owners to claim accrued royalties, and 
ultimately reduce the incidence of unclaimed royalties. See 85 FR 
33735 (June 2, 2020).
    \279\ DLC NRPM Comment at 2.
---------------------------------------------------------------------------

    After carefully considering these comments, the Office concludes 
that some suggestions are already addressed by the statute, and some 
may not need to be addressed by regulation. For example, the statute 
already requires the MLC to submit to periodic audits, which must be 
made publicly available.\280\ Likewise, the MLC's database will provide 
insight into the amount of unmatched usages reported to the MLC, as 
well as a mechanism for claiming such works. Similarly, as the statute 
prohibits the MLC from administering licenses apart from the mechanical 
license, requiring the MLC to certify that it is in compliance with the 
law appears unnecessary. The Office agrees it could be beneficial for 
the rules and procedures for the MLC's Dispute Resolution Committee to 
be made publicly available, and encourages their publication as soon as 
practicable given the MLC's obligation to have ``transparent and 
accountable'' policies and procedures.\281\ Though the interim rule, 
like the proposed rule, does not require an independent report from the 
board's music creator representatives, the Office reiterates its 
expectation that ``the MLC . . . give voice to its board's songwriter 
representatives as well as its statutory committees, whether through 
its annual reporting or other public announcements.'' \282\ Songwriters 
on the MLC's board of directors are not a separate entity and should 
participate with other members of the board to represent and 
collectively address songwriter concerns and interests.
---------------------------------------------------------------------------

    \280\ 17 U.S.C. 115(d)(3)(D)(ix)(II)(aa), (cc). The Office also 
declines to require publication of audit results of blanket 
licensees, and notes such a requirement may implicate 
confidentiality obligations.
    \281\ Id. at 115(d)(3)(D)(ix)(I)(aa).
    \282\ 85 FR at 58186 n.266.
---------------------------------------------------------------------------

    For its part, the MLC seeks modification of the proposed 
requirement to disclose ``the average processing and distribution times 
for distributing royalties to copyright owners,'' calling it ``somewhat 
confusing.'' \283\ The MLC argues that ``there are many different types 
of averages and methods of calculating averages, leaving room for 
misunderstanding,'' and that ``the rule should accommodate the 
inclusion in the annual report of the actual [ ] dates on which 
distributions were made to copyright owners during the preceding 
calendar year, as such information will inform copyright owners and 
other interest[ed] parties of the timeliness of payment.'' \284\ The 
MLC ``intends to and will include in the annual report the dates on 
which distributions were made to copyright owners during the preceding 
calendar year, which will inform copyright owners and other interest 
parties of the timeliness of payment'' and requests that the rule be 
modified to permit that information instead of ``average processing and 
distribution times.'' \285\ The MLC suggests removing the word 
``average'' as one possible solution.\286\
---------------------------------------------------------------------------

    \283\ MLC NRPM Comment at 8.
    \284\ MLC Ex Parte Letter #11 at 6.
    \285\ MLC NRPM Comment at 8.
    \286\ MLC Ex Parte Letter #11 at 6.
---------------------------------------------------------------------------

    The Office believes that the proposed rule would allow the MLC to 
determine and explain the metrics it relies upon when reporting 
processing and distribution times. Indeed, the Office itself reports a 
variety of average processing times for copyright registration, with 
accompanying explanatory methodology material.\287\ The MLC's core 
function is to collect and distribute royalties for covered activities; 
simply reporting the months in which the MLC distributes royalties--
without disclosing how long the process of matching and distribution of 
royalties takes--provides limited meaningful insight into how the 
blanket license is functioning under the MLC's administration 
(including for example, by identifying external dependencies that may 
be contributing to delays in the MLC's ability to identify musical 
works embodied in particular sound recordings and identify and locate 
corresponding musical work copyright owners).\288\ Accordingly, this 
aspect of the interim rule retains the general requirement, but in 
order to avoid any confusion, clarifies that the MLC has discretion as 
to the metrics it measures when reporting average times by stating that 
the MLC must disclose the manner in which it calculates processing and 
distribution times.
---------------------------------------------------------------------------

    \287\ See, e.g., U.S. Copyright Office, Registration Processing 
Times, https://www.copyright.gov/registration/docs/processing-times-faqs/april-1-2020-september-30-2020.pd (last visited Dec. 20, 2020); 
see also ASCAP, My ASCAP Membership, https://www.ascap.com/help/my-ascap-membership (last visited Dec. 20, 2020) (``For writers, there 
is a time lag of approximately seven (7) to eight (8) months between 
performances and royalty processing. . . . For publishers, there is 
a time lag of approximately six (6) months between performance and 
royalty processing.'').
    \288\ See 17 U.S.C. 115(d)(3)(C) (authorities and functions of 
mechanical licensing collective); 17 U.S.C. 115(d)(3)(B)(ii) 
(establishing five-year designation process for the Office to 
periodically review the mechanical licensing collective's 
performance).
---------------------------------------------------------------------------

    Finally, as noted above, while the phrase ``[n]ot later than June 
30 of each year commencing after the license availability date'' could 
be read as not requiring the first annual report until June 2022 (to 
cover year 2021), a number of reasons compel the Office to adjust the 
interim rule to require the MLC to issue a written public update 
regarding its operations in December 2021, in a potentially abbreviated 
version. Because the MLC was designated in July 2019,\289\ if the first 
annual report is issued in June 2022, that could mean three years 
without a formal written update on the MLC's operations. This may 
frustrate the noted desire from commenters for transparency regarding 
the MLC's operations.\290\ The Office is also mindful of the statutory 
five-year designation process for periodic review of the mechanical 
licensing collective's performance.\291\ Additional written information 
from the MLC may help inform both the Office's and the public's 
understanding with respect to that period of the MLC's performance. 
Finally, for musical works for which royalties have accrued but the 
copyright owner is unknown or not located, the

[[Page 86822]]

MLC must hold such royalties until at least January 1, 2023.\292\ If 
the first written report were received in June 2022, that may provide a 
short runway for public disclosure and feedback prior to the MLC 
potentially ``engag[ing] in diligent, good-faith efforts to publicize'' 
``any pending distribution of unclaimed accrued royalties and accrued 
interest, not less than 90 days before the date on which the 
distribution is made.'' \293\ Accordingly, the interim rule requires 
the MLC to issue by no later than December 31, 2021 and make available 
online for a period of not less than three years, a one-time report 
that contains, at a minimum, many of the categories of information 
required to be disclosed in the MLC's annual report.
---------------------------------------------------------------------------

    \289\ 84 FR at 32274.
    \290\ See, e.g., DLC September NOI Reply Comment at 28; MAC 
Initial September NOI Comment at 2; Music Innovation Consumers 
(``MIC'') Coalition Initial September NOI Comment at 3; Screen 
Composers Guild of Canada (``SCGC'') Reply Comments at 2, U.S. 
Copyright Office Dkt. No. 2018-11, available at https://www.regulations.gov/docketBrowser?rpp=25&po=0&dct=PS&D=COLC-2018-0011&refD=COLC-2018-0011-0001; Iconic Artists LLC Initial Comments 
at 2, U.S. Copyright Office Dkt. No. 2018-11, available at https://www.regulations.gov/docketBrowser?rpp=25&po=0&dct=PS&D=COLC-2018-0011&refD=COLC-2018-0011-0001; see also The MLC, Mission and 
Principles, https://themlc.com/mission-and-principles (last visited 
Dec. 18, 2020) (``The MLC will build trust by operating 
transparently.'').
    \291\ 17 U.S.C. 115(d)(3)(B)(ii).
    \292\ 85 FR at 33738; 17 U.S.C. 115(d)(3)(H)(i), (J)(i)(I).
    \293\ 17 U.S.C. 115(d)(3)(J)(iii)(II)(dd).
---------------------------------------------------------------------------

    The Office recognizes that certain categories of information for 
the annual report may not be applicable for the first six months after 
the license availability date, as the MLC would not have engaged in 
certain activities (e.g., aggregated royalty receipts and payments). 
Accordingly, the interim rule states that if it is not practicable for 
the MLC to provide a certain category of information that is required 
for the MLC's annual report, the MLC may so state but shall explain the 
reason(s) for such impracticability and, as appropriate, may address 
such categories in an abbreviated fashion.

List of Subjects in 37 CFR Part 210

    Copyright, Phonorecords, Recordings.

Interim Regulations

    For the reasons set forth in the preamble, the Copyright Office 
amends 37 CFR part 210 as follows:

PART 210--COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING PHYSICAL 
AND DIGITAL PHONORECORDS OF NONDRAMATIC MUSICAL WORKS

0
1. The authority citation for part 210 continues to read as follows:

    Authority:  17 U.S.C. 115, 702.


0
2. Add Sec. Sec.  210.31 through 201.33 to read as follows:


Sec.  210.31   Musical works database information.

    (a) General. 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), and to increase usability of the 
database.
    (b) Matched musical works. With respect to musical works (or shares 
thereof) where the copyright owners have been identified and located, 
the musical works database shall contain, at a minimum, the following:
    (1) Information regarding the musical work:
    (i) Musical work title(s);
    (ii) The copyright owner of the musical work (or share thereof), 
and the ownership percentage of that owner. The copyright owner of the 
musical work owns any one of the exclusive rights comprised in the 
copyright for that work. A copyright owner includes entities, including 
foreign collective management organizations (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;
    (iii) Contact information for the copyright owner of the musical 
work (or share thereof), which can be a post office box or similar 
designation, or a ``care of'' address (e.g., publisher);
    (iv) The mechanical licensing collective's standard identifier for 
the musical work; and
    (v) To the extent reasonably available to the mechanical licensing 
collective:
    (A) Any alternative or parenthetical titles for the musical work;
    (B) ISWC;
    (C) Songwriter(s), with the mechanical licensing collective having 
the discretion to allow songwriters, or their authorized 
representatives, to have songwriter information listed anonymously or 
pseudonymously. The mechanical licensing collective shall develop and 
make publicly available a policy on how the collective will consider 
requests by copyright owners or administrators to change songwriter 
names to be listed anonymously or pseudonymously for matched musical 
works;
    (D) Administrator(s) or other authorized entity(ies) who license 
the musical work (or share thereof) and/or collect mechanical royalties 
for use of such musical work (or share thereof) in the United States;
    (E) ISNI(s) and/or IPI(s) for each musical work copyright owner, 
and, if different, songwriter, and administrator;
    (F) Unique identifier(s) assigned by the blanket licensee, if 
reported by the blanket licensee; and
    (G) For classical compositions, opus and catalog numbers.
    (2) Information regarding the sound recording(s) in which the 
musical work is embodied, to the extent reasonably available to the 
mechanical licensing collective:
    (i) ISRC;
    (ii) Sound recording name(s), including all known alternative and 
parenthetical titles for the sound recording;
    (iii) Information related to the sound recording copyright owner, 
including LabelName and PLine. Should the mechanical licensing 
collective decide to include DDEX Party Identifier (DPID) in the public 
database, the DPID party's name may be included, but not the numerical 
identifier;
    (iv) Featured artist(s);
    (v) Playing time;
    (vi) Version;
    (vii) Release date(s);
    (viii) Producer;
    (ix) UPC; and
    (x) Other non-confidential information that the MLC reasonably 
believes, based on common usage, would be useful to assist in 
associating sound recordings with musical works.
    (c) Unmatched musical works. With respect to musical works (or 
shares thereof) where the copyright owners have not been identified or 
located, the musical works database shall include, to the extent 
reasonably available to the mechanical licensing collective:
    (1) Information regarding the musical work:
    (i) Musical work title(s), including any alternative or 
parenthetical titles for the musical work;
    (ii) The ownership percentage of the musical work for which an 
owner has not been identified;
    (iii) If a musical work copyright owner has been identified but not 
located, the identity of such owner and the ownership percentage of 
that owner. The copyright owner of the musical work owns any one of the 
exclusive rights comprised in the copyright for that work. A copyright 
owner includes entities, including foreign collective management 
organizations (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;
    (iv) The mechanical licensing collective's standard identifier for 
the musical work;
    (v) ISWC;

[[Page 86823]]

    (vi) Songwriter(s), with the mechanical licensing collective having 
the discretion to allow songwriters, or their authorized 
representatives, to have songwriter information listed anonymously or 
pseudonymously. The mechanical licensing collective shall develop and 
make publicly available a policy on how the collective will consider 
requests by copyright owners or administrators to change songwriter 
names to be listed anonymously or pseudonymously for unmatched musical 
works;
    (vii) Administrator(s) or other authorized entity(ies) who license 
the musical work (or share thereof) and/or collect mechanical royalties 
for use of such musical work (or share thereof) in the United States;
    (viii) ISNI(s) and/or IPI(s) for each musical work copyright owner, 
and, if different, songwriter and administrator;
    (ix) Unique identifier(s) assigned by the blanket licensee, if 
reported by the blanket licensee; and
    (x) For classical compositions, opus and catalog numbers.
    (2) Information regarding the sound recording(s) in which the 
musical work is embodied:
    (i) ISRC;
    (ii) Sound recording name(s), including all known alternative and 
parenthetical titles for the sound recording;
    (iii) Information related to the sound recording copyright owner, 
including LabelName and PLine. Should the mechanical licensing 
collective decide to include DDEX Party Identifier (DPID) in the public 
database, the DPID party's name may be included, but not the numerical 
identifier;
    (iv) Featured artist(s);
    (v) Playing time;
    (vi) Version;
    (vii) Release date(s);
    (viii) Producer;
    (ix) UPC; and
    (x) Other non-confidential information that the MLC reasonably 
believes, based on common usage, would be useful 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.
    (d) Field labeling. The mechanical licensing collective shall 
consider industry practices when labeling fields in the public database 
to reduce the likelihood of user confusion, particularly regarding 
information relating to sound recording copyright owner. Fields 
displaying PLine, LabelName, or, if applicable, DPID, information may 
not on their own be labeled ``sound recording copyright owner.''
    (e) Data provenance. For information relating to sound recordings, 
the mechanical licensing collective shall identify the source of such 
information in the public musical works database. For sound recording 
information received from a digital music provider, the MLC shall 
include the name of the digital music provider.
    (f) Historical data. The mechanical licensing collective shall 
maintain at regular intervals historical records of the information 
contained in the public musical works database, including a record of 
changes to such database information and changes to the source of 
information in database fields, in order to allow tracking of changes 
to the ownership of musical works in the database over time. The 
mechanical licensing collective shall determine, in its reasonable 
discretion, the most appropriate method for archiving and maintaining 
such historical data to track ownership and other information changes 
in the database.
    (g) Personally identifiable information. The mechanical licensing 
collective shall not include in the public musical works database any 
individual's Social Security Number (SSN), taxpayer identification 
number, financial account number(s), date of birth (DOB), or home 
address or personal email to the extent it is not musical work 
copyright owner contact information required under 17 U.S.C. 
115(d)(3)(E)(ii)(III). The mechanical licensing collective shall also 
engage in reasonable, good-faith efforts to ensure that other 
personally identifying information (i.e., information that can be used 
to distinguish or trace an individual's identity, either alone or when 
combined with other information that is linked or linkable to such 
specific individual), is not available in the public musical works 
database, other than to the extent it is required by law.
    (h) Disclaimer. The mechanical licensing collective shall include 
in the public-facing version of the musical works database a 
conspicuous disclaimer that states that the database is not an 
authoritative source for sound recording information, and explains the 
labeling of information related to sound recording copyright owner, 
including the ``LabelName'' and ``PLine'' fields.
    (i) Ownership. The data in the public musical works database 
prescribed by 17 U.S.C. 115(d)(3)(E) is public data not owned by the 
mechanical licensing collective or any of the collective's employees, 
agents, consultants, vendors, or independent contractors.


Sec.  210.32   Musical works database usability, interoperability, and 
usage restrictions.

    This section prescribes rules under which the mechanical licensing 
collective shall ensure the usability, interoperability, and proper 
usage of the public musical works database created pursuant to 17 
U.S.C. 115(d)(3)(E).
    (a) Database access. (1)(i) The mechanical licensing collective 
shall make the musical works database available to members of the 
public in a searchable, real-time, online format, free of charge. In 
addition, the mechanical licensing collective shall make the musical 
works database available in a bulk, real-time, machine-readable format 
through a process for bulk data management widely adopted among music 
rights administrators to:
    (A) Digital music providers operating under the authority of valid 
notices of license, and their authorized vendors, free of charge;
    (B) Significant nonblanket licensees in compliance with their 
obligations under 17 U.S.C. 115(d)(6), and their authorized vendors, 
free of charge;
    (C) The Register of Copyrights, free of charge; and
    (D) Any other person or entity, including agents, consultants, 
vendors, and independent contractors of the mechanical licensing 
collective for any purpose other than the ordinary course of their work 
for the mechanical licensing collective, for a fee not to exceed the 
marginal cost to the mechanical licensing collective of providing the 
database to such person or entity.
    (ii) Starting December 31, 2021, the mechanical licensing 
collective shall make the musical works database available at least in 
a bulk, real-time, machine-readable format under this paragraph (a)(1) 
through application programming interfaces (APIs).
    (2) Notwithstanding paragraph (a)(1) of this section, the 
mechanical licensing collective shall establish appropriate terms of 
use or other policies governing use of the database that allows the 
mechanical licensing collective to suspend access to any individual or 
entity that appears, in the mechanical licensing collective's 
reasonable determination, to be attempting to bypass the mechanical 
licensing collective's right to charge a fee to recover its marginal 
costs for bulk access outlined in 17 U.S.C. 115(d)(3)(E)(v)(V) 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

[[Page 86824]]

misappropriating or using information from the database for improper 
purposes. The mechanical licensing collective's terms of use or other 
policies governing use of the database shall comply with this section.
    (b) Point of contact for inquiries and complaints. In accordance 
with its obligations under 17 U.S.C. 115(d)(3)(D)(ix)(I)(bb), the 
mechanical licensing collective shall designate a point of contact for 
inquiries and complaints with timely redress, including complaints 
regarding the public musical works database and/or the mechanical 
licensing collective's activities. The mechanical licensing collective 
must make publicly available, including prominently on its website, the 
following information:
    (1) The name of the designated point of contact for inquiries and 
complaints. The designated point of contact may be an individual (e.g., 
``Jane Doe'') or a specific position or title held by an individual at 
the mechanical licensing collective (e.g., ``Customer Relations 
Manager''). Only a single point of contact may be designated.
    (2) The physical mail address (street address or post office box), 
telephone number, and email address of the designated point of contact.


Sec.  210.33   Annual reporting by the mechanical licensing collective.

    (a) General. This section prescribes the rules under which the 
mechanical licensing collective will provide certain information in its 
annual report pursuant to 17 U.S.C. 115(d)(3)(D)(vii), and a one-time 
written update regarding the collective's operations in 2021.
    (b) Contents. Each of the mechanical licensing collective's annual 
reports shall contain, at a minimum, the following information:
    (1) The operational and licensing practices of the mechanical 
licensing collective;
    (2) How the mechanical licensing collective collects and 
distributes royalties, including the average processing and 
distribution times for distributing royalties for the preceding 
calendar year. The mechanical licensing collective shall disclose how 
it calculated processing and distribution times for distributing 
royalties for the preceding calendar year;
    (3) Budgeting and expenditures for the mechanical licensing 
collective;
    (4) The mechanical licensing collective's total costs for the 
preceding calendar year;
    (5) The projected annual mechanical licensing collective budget;
    (6) Aggregated royalty receipts and payments;
    (7) Expenses that are more than 10 percent of the annual mechanical 
licensing collective budget;
    (8) The efforts of the mechanical licensing collective to locate 
and identify copyright owners of unmatched musical works (and shares of 
works);
    (9) The mechanical licensing collective's selection of board 
members and criteria used in selecting any new board members during the 
preceding calendar year;
    (10) The mechanical licensing collective's selection of new vendors 
during the preceding calendar year, including the criteria used in 
deciding to select such vendors, and key findings from any performance 
reviews of the mechanical licensing collective's current vendors. Such 
description shall include a general description of any new request for 
information (RFI) and/or request for proposals (RFP) process, either 
copies of the relevant RFI and/or RFP or a list of the functional 
requirements covered in the RFI or RFP, the names of the parties 
responding to the RFI and/or RFP. In connection with the disclosure 
described in this paragraph (b)(10), the mechanical licensing 
collective shall not be required to disclose any confidential or 
sensitive business information. For the purposes of this paragraph 
(b)(10), ``vendor'' means any vendor performing materially significant 
technology or operational services related to the mechanical licensing 
collective's matching and royalty accounting activities;
    (11) Whether during the preceding calendar year the mechanical 
licensing collective, pursuant to 17 U.S.C. 115(d)(7)(C), applied any 
unclaimed accrued royalties on an interim basis to defray costs in the 
event that the administrative assessment is inadequate to cover 
collective total costs, including the amount of unclaimed accrued 
royalties applied and plans for future reimbursement of such royalties 
from future collection of the assessment; and
    (12) Whether during the preceding calendar year the mechanical 
licensing collective suspended access to the public database to any 
individual or entity attempting to bypass the collective's right to 
charge a fee to recover its marginal costs for bulk access outlined in 
17 U.S.C. 115(d)(3)(E)(v)(V) 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. If the mechanical licensing collective so suspended access to 
the public database to any individual or entity, the annual report must 
identify such individual(s) and entity(ies) and provide the reason(s) 
for suspension.
    (c) December 31, 2021 Update. No later than December 31, 2021, the 
mechanical licensing collective shall post, and make available online 
for a period of not less than three years, a one-time written report 
that contains, at a minimum, the categories of information required in 
paragraph (b) of this section, addressing activities following the 
license availability date. If it is not practicable for the mechanical 
licensing collective to provide information in this one-time report 
regarding a certain category of information required under paragraph 
(b) of this section, the MLC may so state but shall explain the 
reason(s) for such impracticability and, as appropriate, may address 
such categories in an abbreviated fashion.

    Dated: December 21, 2020.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2020-28958 Filed 12-30-20; 8:45 am]
BILLING CODE 1410-30-P