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(2) A qualified auditor or outside LIBRARY OF CONGRESS comments are available on the counsel, pursuant to 17 U.S.C. Copyright Office website at https:// 115(d)(3)(L), who is authorized to act on U.S. Copyright Office copyright.gov/rulemaking/mma- behalf of a copyright owner or group of transparency. If electronic submission copyright owners with respect to 37 CFR Part 210 of comments is not feasible due to lack of access to a computer and/or the verification of royalty payments by the [Docket No. 2020–8] mechanical licensing collective, subject internet, please contact the Office using to an appropriate written confidentiality Transparency of the Mechanical the contact information below for agreement; and Licensing Collective and Its Database special instructions. (3) Attorneys and other authorized of Musical Works Information FOR FURTHER INFORMATION CONTACT: agents of parties to proceedings before Regan A. Smith, General Counsel and AGENCY: U.S. Copyright Office, Library Associate Register of Copyrights, by federal courts, the Copyright Office, or of Congress. email at [email protected] or Anna the Copyright Royalty Judges, or when ACTION: Notification of inquiry. Chauvet, Associate General Counsel, by such disclosure is required by court email at [email protected]. Each can SUMMARY: order or subpoena, subject to an The U.S. Copyright Office is be contacted by telephone by calling appropriate protective order or issuing a notification of inquiry (202) 707–8350. agreement. regarding the Musical Works SUPPLEMENTARY INFORMATION: (e) Safeguarding Confidential Modernization Act, title I of the Orrin G. Hatch–Bob Goodlatte Music Information. The MLC, DLC, and any I. Background Modernization Act. Title I establishes a person or entity authorized to receive blanket compulsory license, which On October 11, 2018, the president Confidential Information from either of digital music providers may obtain to signed into law the Orrin G. Hatch-Bob those entities, must implement Goodlatte Music Modernization Act, make and deliver digital phonorecords 1 procedures to safeguard against of musical works. By statute, the blanket H.R. 1551 (‘‘MMA’’). Title I of the unauthorized access to or dissemination license, which will be administered by MMA, the Musical Works of Confidential Information using a a mechanical licensing collective, will Modernization Act, substantially reasonable standard of care, but no less become available on January 1, 2021. modifies the compulsory ‘‘mechanical’’ than the same degree of security that the The MMA specifically directs the license for making and distributing recipient uses to protect its own phonorecords of nondramatic musical Copyright Office to adopt a number of 2 Confidential Information or similarly regulations to govern the new blanket works under 17 U.S.C. 115. Prior to the sensitive information. The MLC and licensing regime, including prescribing MMA, licensees obtained a section 115 DLC shall each implement and enforce categories of information to be included compulsory license on a per-work, song- reasonable policies governing the in the mechanical licensing collective’s by-song basis, by serving a notice of confidentiality of their records, subject musical works database, as well as rules intention to obtain a compulsory license (‘‘NOI’’) on the relevant copyright owner to the other provisions of this section. related to the usability, interoperability, and usage restrictions of the database. (or filing it with the Copyright Office if (f) Maintenance of records. Any the Office’s public records did not written confidentiality agreements Congress has indicated that the Office should exercise its general regulatory identify the copyright owner) and then relating to the use or disclosure of authority to, among other things, help paying applicable royalties Confidential Information must be accompanied by accounting ensure that the collective’s policies and 3 maintained and stored by the relevant practices are transparent and statements. The MMA amends this parties for at least the same amount of accountable. The Office seeks public regime most significantly by time that certain digital music providers comment regarding the subjects of establishing a new blanket compulsory are required to maintain records of use inquiry discussed in this notification, license that digital music providers may pursuant to 17 U.S.C. 115(d)(4)(A)(iv). namely, issues related to ensuring obtain to make digital phonorecord deliveries (‘‘DPDs’’) of musical works, (g) Confidentiality agreements. The appropriate transparency of the including in the form of permanent use of confidentiality agreements by the mechanical licensing collective itself, as downloads, limited downloads, or MLC and DLC shall be subject to the well as the contents of the collective’s public musical work database, database interactive streams (referred to in the other provisions of this section, and statute as ‘‘covered activity,’’ where shall not permit broader use or access, and database use. This notification is being published such activity qualifies for a compulsory disclosure of Confidential Information license).4 Instead of licensing one song than permitted under this section. The concurrently with a related notice of proposed rulemaking related to MLC and DLC may not impose 1 Public Law 115–264, 132 Stat. 3676 (2018). confidentiality considerations with additional restrictions relating to the use 2 See S. Rep. No. 115–339, at 1–2 (2018); Report or disclosure of Confidential respect to the operation and records of and Section-by-Section Analysis of H.R. 1551 by the the collective. Chairmen and Ranking Members of Senate and Information, beyond those imposed by DATES: House Judiciary Committees, at 1 (2018), https:// this provision, as a condition for Written comments must be www.copyright.gov/legislation/mma_conference_ participation on a board or committee. received no later than 11:59 Eastern report.pdf (‘‘Conf. Rep.’’); see also H.R. Rep. No. Time on June 8, 2020. 115–651, at 2 (2018) (detailing the House Judiciary Dated: April 15, 2020. ADDRESSES: For reasons of government Committee’s efforts to review music copyright Regan A. Smith, laws). efficiency, the Copyright Office is using 3 See 17 U.S.C. 115(b)(1), (c)(5) (2017); U.S. General Counsel and Associate Register of the regulations.gov system for the Copyright Office, Copyright and the Music Copyrights. submission and posting of public Marketplace 28–31 (2015), https:// [FR Doc. 2020–08374 Filed 4–17–20; 4:15 pm] comments in this proceeding. All www.copyright.gov/policy/musiclicensingstudy/ copyright-and-the-music-marketplace.pdf BILLING CODE 1410–30–P comments are therefore to be submitted (describing operation of prior section 115 license). electronically through regulations.gov. 4 17 U.S.C. 115(d)(1), (e)(7); see H.R. Rep. No. Specific instructions for submitting 115–651, at 4–6 (describing operation of the blanket

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at a time by serving NOIs on individual Congress acknowledged that ‘‘operat[ing] in a transparent and copyright owners, the blanket license ‘‘[a]lthough the legislation provides accountable manner’’ 17 and ensuring will cover all musical works available specific criteria for the collective to that its ‘‘policies and practices . . . are for compulsory licensing and will be operate, it is to be expected that transparent and accountable.’’ 18 Indeed, centrally administered by a mechanical situations will arise that were not some Members of Congress noted that a licensing collective (‘‘MLC’’), which has contemplated by the legislation,’’ and key aspect of the MMA is bringing been designated by the Register of that ‘‘[t]he Office is expected to use its transparency to the music industry.19 Copyrights.5 best judgement in determining the The MLC itself has expressed its By statute, digital music providers appropriate steps in those situations.’’ 13 commitment to transparency, both by will bear the reasonable costs of Legislative history further states that including transparency as one of its four establishing and operating the MLC ‘‘[t]he Copyright Office has the key principles underpinning its through an administrative assessment, knowledge and expertise regarding operations on its current website,20 and to be determined, if necessary, by the music licensing through its past in written comments to the Office.21 For 6 Copyright Royalty Judges (‘‘CRJs’’). As rulemakings and recent assistance to the example, the MLC noted its permitted under the MMA, the Office Committee[s] during the drafting of this ‘‘commitment to working with, and designated a digital licensee coordinator legislation.’’ 14 Accordingly, in under the oversight of, the Office to (‘‘DLC’’) to represent licensees in designating the MLC, the Office stated ensure that issues relating to its policies proceedings before the CRJs and the that it ‘‘expects ongoing regulatory and and procedures are transparent and Copyright Office, to serve as a non- other implementation efforts to . . . appropriate, including with respect to voting member of the MLC, and to carry extenuate the risk of self-interest,’’ and 7 addressing and mitigating conflicts of out other functions. that ‘‘the Register intends to exercise her interest, maintaining diversity, A. General Regulatory Background and oversight role as it pertains to matters of representing the entire musical works Importance of Transparency governance.’’ 15 Additionally, the Office community, and ensuring board and stated that it ‘‘intends to work with the committee member service complies MLC to help it achieve the[] goals’’ of 22 The MMA enumerates several will all relevant legal requirements.’’ ‘‘engagement with a broad spectrum of regulations that the Copyright Office is musical work copyright owners, Further, the MMA specifically directs specifically directed to promulgate to including from those communities’’ and the Copyright Office to promulgate govern the new blanket licensing musical genres that some commenters in certain regulations related to the MLC’s regime, and Congress invested the the designation proceeding asserted are creation of a free database to publicly Copyright Office with ‘‘broad regulatory underrepresented.16 disclose musical work ownership authority’’ 8 to ‘‘conduct such This notification of inquiry is focused information and identify the sound proceedings and adopt such regulations on considerations to ensure appropriate recordings in which the musical works as may be necessary or appropriate to 23 transparency and public disclosure of are embodied. As discussed more effectuate the provisions of [the MMA 9 information by the mechanical licensing pertaining to the blanket license].’’ The 17 collective. Fostering increased S. Rep. No. 115–339, at 7. legislative history contemplates that the 18 transparency is an animating theme of 17 U.S.C. 115(d)(3)(D)(ix)(I)(aa). Office will ‘‘thoroughly review[ ]’’ 10 19 the MMA, which envisions the MLC See 164 Cong. Rec. S6292, 6293 (daily ed. Sept. policies and procedures established by 25, 2018) (statement of Senator Hatch) (‘‘I need to the MLC and its three committees, of thank Chairman Grassley, who shepherded this bill regulatory language,’’ but ‘‘urg[ing] the Office to through the committee and made important which the MLC is statutorily bound to balance this concern for pragmatism and flexibility contributions to the bill’s oversight and ensure are ‘‘transparent and against the need to provide as much clear guidance transparency provisions.’’); 164 Cong. Rec. S 501, accountable,’’ 11 and promulgate and oversight as possible to encourage trust’’). All 504 (Senator Chris Coons stating ‘‘[t]his important regulations that ‘‘balance[ ] the need to rulemaking activity, including public comments, as piece of legislation will bring much-needed well as educational material regarding the Music transparency and efficiency to the music protect the public’s interest with the Modernization Act, can currently be accessed via marketplace.’’); 64 Cong. Rec. H 3522, 3541 need to let the new collective operate navigation from https://www.copyright.gov/music- (Representative Steve Chabot stating ‘‘[t]his without over-regulation.’’ 12 modernization/. Comments received in response to legislation provides much-needed updates to bring the September 2019 notification of inquiry are music licensing into the digital age, particularly available at https://www.regulations.gov/docket improving market efficiencies and transparency to license and the mechanical licensing collective); S. Browser?rpp=25&po=0&dct=PS&D=COLC-2019- reflect the modern music marketplace.’’); see also Rep. No. 115–339, at 3–6 (same). 0002&refD=COLC-2019-0002-0001. References to Conf. Rep. at 6 (‘‘Music metadata has more often 5 17 U.S.C. 115(d)(1), (3); 84 FR 32274 (July 8, these comments and letters are by party name been seen as a competitive advantage for the party 2019). (abbreviated where appropriate), followed by either that controls the database, rather than as a resource 6 17 U.S.C. 115(d)(7)(D). ‘‘Initial,’’ ‘‘Reply,’’ or ‘‘Ex Parte Letter,’’ as for building an industry on.’’). 7 Id. at 115(d)(5)(B); 84 FR at 32274; see also 17 appropriate. Guidelines for ex parte 20 The MLC, Mission and Principles, https:// U.S.C. 115(d)(3)(D)(i)(IV), (d)(5)(C). communications, along with records of such themlc.com/mission-and-principles (last visited 8 H.R. Rep. No. 115–651, at 5–6; S. Rep. No. 115– communications, are available at https:// Apr. 10, 2020) (‘‘The MLC will build trust by 339, at 5; Conf. Rep. at 4. www.copyright.gov/rulemaking/mma- operating transparently. The MLC is governed by a 9 17 U.S.C. 115(d)(12)(A). implementation/ex-parte-communications.html. board of songwriters and music publishers who will 10 H.R. Rep. No. 115–651, at 5–6, 14; S. Rep. No. The Office encourages parties to refrain from help ensure our work is conducted with integrity.’’). 115–339, at 5, 15; Conf. Rep. at 4, 12. The requesting ex parte meetings on this notification of See also The MLC, The MLC Process, https:// Conference Report further contemplates that the inquiry until they have submitted written themlc.com/how-it-works (last visited Apr. 10, Office’s review will be important because the MLC comments. As stated in the guidelines, ex parte 2020) (‘‘The MLC is committed to transparency. The must operate in a manner that can gain the trust of meetings with the Office are intended to provide an MLC will make data on unclaimed works and the entire music community, but can only be held opportunity for participants to clarify evidence and/ unmatched uses available to be searched by liable under a standard of gross negligence when or arguments made in prior written submissions, registered users of The MLC Portal and the public carrying out certain of the policies and procedures and to respond to questions from the Office on at large.’’). adopted by its board. Conf. Rep. at 4. those matters. 21 See, e.g., MLC Reply at 42–43 (‘‘The MLC is 11 17 U.S.C. 115(d)(3)(D)(ix)(I)(aa). 13 H.R. Rep. No. 115–651, at 14; S. Rep. No. 115– committed to transparency and submits that, while 12 H.R. Rep. No. 115–651, at 5–6, 14; S. Rep. No. 339, at 15; Conf. Rep. at 12. seeking to enact regulations is not an efficient or 115–339, at 5, 15; Conf. Rep. at 4, 12. See also 14 H.R. Rep. No. 115–651, at 14; S. Rep. No. 115– effective approach, the MLC will implement SoundExchange Initial at 15; Future of Music 339, at 15; Conf. Rep. at 12. policies and procedures to ensure transparency.’’). Coalition (‘‘FMC’’) Reply at 3 (appreciating 15 84 FR at 32280. 22 MLC Initial at 30–31. ‘‘SoundExchange’s warning against too-detailed 16 Id. at 32279. 23 See 17 U.S.C. 115(d)(3)(E), (e)(20).

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below, the statute requires the MLC’s doing.31 As the Recording Academy suggested that it would be more fruitful public database to include various types suggested, the publication of these to allow the MLC room to ‘‘fully of information, depending upon bylaws ‘‘are key to establishing trust, develop[] its policies and procedures’’ whether a musical work has been and will help assuage any outstanding and ‘‘provide them to the Office for matched to a copyright owner.24 For concerns amongst songwriters about the review’’ before considering whether both matched and unmatched works, MLC’s operations.’’ 32 Indeed, the MLC regulation in this area is advisable.38 the MLC’s database must also include itself recognizes that making its bylaws Sixth, the MLC must ‘‘identify a point ‘‘such other information’’ ‘‘as the publicly available ‘‘promotes of contact for publisher inquiries and Register of Copyrights may prescribe by transparency.’’ 33 Second, and as noted complaints with timely redress.’’ 39 regulation.’’ 25 The database must ‘‘be below, the MLC must publish an annual Seventh, the MLC must ‘‘establish an made available to members of the public report detailing its operations; while anti-comingling policy for funds’’ in a searchable, online format, free of this notice seeks input on whether it collected and those not collected under charge,’’ 26 as well as ‘‘in a bulk, would be appropriate to further specify section 115.40 Seventh, the MLC must machine-readable format, through a contents of that report, this statutory fulfill a statutory mandate to outreach to widely available software application,’’ obligation already serves as a mandate songwriters and generally ‘‘publicize, to certain parties, including blanket for the MLC to disclose various throughout the music industry’’ its work licensees and the Copyright Office, free categories of information. Third, every and procedures by which copyright of charge, and to ‘‘[a]ny other person or five years, the MLC will submit itself to owners may claim their accrued entity for a fee not to exceed the periodic public audits to ensure it does royalties.41 Finally, the five-year marginal cost to the mechanical not ‘‘engage in waste, fraud and designation process established by the licensing collective of providing the abuse,’’ 34 and so some concerns about statute provides another avenue for the database to such person or entity.’’ 27 transparency may be addressed through Office to periodically review the the statutorily-mandated exercise of this mechanical licensing collective’s B. Non-Regulatory Requirements and audit provision.35 Fourth, in a separate performance.42 Incentives for Transparency provision, copyright owners may also In some instances, the Office While this notice is directed at audit the MLC to verify the accuracy of understands that the MLC has already exploring ways in which the Copyright royalty payments paid by the MLC.36 begun working to communicate to the Office may reasonably and prudently Fifth, the MLC must ensure that its public regarding its transparency of exercise regulatory authority to facilitate policies and practices ‘‘are transparent operations, such as by launching an appropriate transparency and public and accountable’’ 37; the MLC has initial website and participating in disclosure, it is important to note that various industry conferences.43 The both the statutory language as well as 31 MLC Reply at 42–43 (‘‘The publication of the Office presumes these efforts will grow MLC’s bylaws is directly addressed by the statute, more robust as the license availability the MLC’s structure separately include with which the MLC will of course comply . . .’’). aspects that promote disclosure absent 32 Recording Academy Initial at 4. date approaches, and anticipates additional regulation. While the 33 The MLC, Transparency, https://themlc.com/ continued discussions with both the Copyright Office does not agree with the faqs/categories/transparency (last visited Apr. 10, MLC and DLC on ways to cooperate on MLC that regulations regarding issues 2020) (noting that the MLC will ‘‘promote education and outreach. In other cases, transparency’’ by ‘‘[m]aking The MLC governing related to transparency ‘‘may be bylaws public’’). the MLC has adopted policies that bear premature’’ because the MLC’s ‘‘policies 34 Conf. Rep. at 6 (‘‘To ensure that the collective upon issues related to disclosure and and procedures are still being does not engage in waste, fraud and abuse, the governance, including by adopting a developed’’ 28—including because the collective is required to submit to periodic audits conflict of interest policy ‘‘for to examine its operations and procedures.’’); 17 appropriately managing conflicts of statute directs the Office specifically to U.S.C. 115(d)(3)(D)(ix)(II). Beginning in the fourth promulgate regulations concerning full calendar year after the MLC’s initial interest in accordance with legal contents of the public database 29—the designation, and in every fifth calendar year requirements and the MLC’s goals of Office does recognize that any thereafter, the MLC is required to retain a qualified accountability and transparency.’’44 The auditor to ‘‘examine the [MLC’s] books, records, and regulatory language would be additive operations’’ and ‘‘prepare a report for the [MLC’s] U.S.C. 115(d)(3)(F)(i), and for purposes of to this existing scheme, and should be board of directors,’’ which must also be provided transparency, how the MLC should confirm or to the Register of Copyrights. Id. at considered within the full context of the reject notices of license, and terminate blanket 115(d)(3)(D)(ix)(II)(aa), (cc). statutory goals. licenses. Specifically, the rule proposes that the 35 First, the statute requires the MLC to For each audit, the collective must retain a MLC maintain a current, free, and searchable public qualified auditor to ‘‘examine the books, records, make its bylaws publicly available,30 list of all blanket licenses, including various details, and operations of the collective’’; ‘‘prepare a report such as information from notices of license, which the MLC has committed to for the board of directors of the collective’’; and whether a notice of license has been rejected and ‘‘deliver the report . . . to the board of directors of why, and whether a blanket license has been the collective.’’ 17 U.S.C. 24 Id. at 115(d)(3)(E)(ii), (iii). terminated and why. U.S. Copyright Office, Notice 115(d)(3)(D)(ix)(II)(aa)(AA)–(CC). Each report must 25 of Proposed Rulemaking, Music Modernization Act Id. at 115(d)(3)(E)(ii)(V), (iii)(II). address the collective’s ‘‘implementation and 26 Id. at 115(d)(3)(E)(v). Notices of License, Notices of Nonblanket Activity, efficacy of procedures’’ ‘‘for the receipt, handling, Data Collection and Delivery Efforts, and Reports of 27 Id. and distribution of royalty funds, including any Usage and Payment, Dkt. No. 2020–5, published 28 MLC Initial at 31 (‘‘The MLC believes that the amounts held as unclaimed royalties’’; ‘‘to guard elsewhere in this issue of the Federal Register. promulgation of regulations concerning the Office’s against fraud, abuse, waste, and the unreasonable 38 MLC Initial at 31. role in overseeing and regulating the MLC’s use of funds’’; and ‘‘to protect the confidentiality of 39 operations and policies would be more fruitful once financial, proprietary, and other sensitive Id. at 115 (d)(3)(D)(ix)(I)(bb). the MLC has fully developed its policies and information.’’ Id. at 115(d)(3)(D)(ix)(II)(bb)(AA)– 40 Id. at 115 (d)(3)(D)(ix)(I)(cc). procedures and is able to provide them to the Office (CC). And the collective must deliver each report 41 Id. at 115(d)(3)(J)(iii)(II). for review.’’). to the Register of Copyrights and make it publicly 42 See id. at 115(d)(3)(B)(ii). 29 17 U.S.C. 115(d)(3)(E)(ii)(V), (iii)(II); see also available. Id. at 115(d)(3)(D)(ix)(II)(cc). 43 See The MLC, https://themlc.com (last visited U.S. Copyright Office, Notice of Proposed 36 Id. at 115(d)(3)(L)(i). Apr. 10, 2020). Rulemaking, Royalty Reporting and Distribution 37 Id. at 115(d)(3)(D)(ix)(I)(aa). In connection with 44 MLC Opening Submission—Part II at 21, U.S. Obligations of the Mechanical Licensing Collective, a separate notice of proposed rulemaking Copyright Royalty Board, Determination and Dkt. No. 2020–6, published elsewhere in this issue concerning reports of usage, notices of license, and Allocation of Initial Administrative Assessment to of the Federal Register. data collection efforts, among other things, the Fund Mechanical Licensing Collective, Docket No. 30 17 U.S.C. 115(d)(3)(D)(ii)(II). Office is addressing the MLC’s obligations under 17 19–CRB–0009–AA, available at https://app.crb.gov/

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MLC advises that it intends to make this notification of inquiry specifically asked and the public musical works database, policy public.45 for public input on any issues that may be appropriate. Finally, some commenters raised should be considered regarding Having reviewed and carefully questions about board governance, information to be included in the MLC’s considered all relevant comments, the particularly with respect to musical works database (e.g., which Office now seeks additional comment appointments and succession.46 The specific additional categories of on the areas of inquiry below. In many initial designation process for MLC information might be appropriate to areas, the Office has already received board and committee members, include by regulation), as well as the valuable information in response to the including those members’ usability, interoperability, and usage September 2019 notification of inquiry, qualifications, was detailed in the restrictions of the MLC’s musical works but is providing another opportunity for Office’s July 2019 designation of the database (e.g., technical or other specific comment before moving forward with a MLC and DLC, as well as the numerous language that might be helpful to proposed rule. Commenters are public comments received, including consider in promulgating these reminded that while the Office’s 47 the MLC’s detailed submission. In regulations, discussion of the pros and regulatory authority is relatively broad, addition to the MLC’s bylaws, which it is obviously constrained by the law cons of applicable standards, and 55 necessarily detail its approach to board whether historical snapshots of the Congress enacted. After reviewing the and committee members, the Copyright comments received in response to this database should be maintained to track Office’s website publicizes MLC and notification of inquiry, the Office is ownership changes over time).50 In DLC contact information, as well as the likely to publish a notice of proposed addition, the notification of inquiry procedure by which vacancies to the rulemaking. In recognition of the start- sought public comment on any issues MLC board of directors, statutory up nature of the collective and current that should be considered relating to the committees, or nonvoting board seats 51 transition period, as the discussion and are filled, including the process by general oversight of the MLC. factual development progresses, the which the Librarian of Congress, upon In response, many commenters Office will also consider whether the recommendation of the Register of emphasized the importance of fashioning an interim rule, rather than Copyrights, appoints successive voting transparency of the MLC’s operations a final rule, may be best-suited to ensure members to the MLC board.48 and its public database,52 and urged the a sufficiently responsive and flexible Office to exercise ‘‘expansive’’ 53 and C. Solicitation of Additional Public regulatory structure. ‘‘robust’’ 54 oversight. Given these To aid the Office’s review, it is Comment public comments, and the MLC’s own requested that where a submission Against that backdrop, the Copyright recognition of the importance of responds to more than one of the below Office seeks additional input on issues transparency, the Office believes clear categories, it be divided into discrete related to transparency and public guidance at this time on certain areas, sections that have clear headings to disclosure of information by the MLC. such as those related to annual reporting indicate the category being discussed in On September 24, 2019, the Office each section. Comments addressing a issued a notification of inquiry seeking 50 Id. at 49972. single category should also have a clear public input on a variety of aspects 51 Id. at 49973. heading to indicate which category it related to implementation of title I of 52 See MAC Initial at 2 (indicating ‘‘the need for discusses. The Office welcomes parties the MMA, including considerations in more transparency’’ regarding the MLC’s structure); to file joint comments on issues of facilitating an appropriate balance Music Innovation Consumers (‘‘MIC’’) Coalition common agreement and consensus. between promoting transparency and Initial at 3 (‘‘All stakeholders in the music marketplace benefit when current and accurate While all public comments are public access while protecting information about copyright ownership is easily welcome, the Office encourages parties confidential information, as well as the accessible.’’); Screen Composers Guild of Canada to provide specific proposed regulatory scope and manner of the Office’s (‘‘SCGC’’) Reply Comments at 2, U.S. Copyright language for the Office to consider and oversight role.49 The September 2019 Office Dkt. No. 2018–11, available at https:// www.regulations.gov/docketBrowser?rpp=25& for others to comment upon. po=0&dct=PS&D=COLC-2018-0011&refD=COLC- Concurrent with this notification of case/viewDocument/7865; id. (‘‘The Conflict of 2018-0011-0001 (‘‘We urge you to make the choice inquiry, the Office issued a notice of Interest Policy contains clear provisions requiring that gives us transparency in the administration and proposed rulemaking identifying disclosure of actual, potential or perceived financial oversight of our creative works, and a fair chance or other conflicts of interest, and lays out clear at proper compensation for those works, now and appropriate procedures to ensure that procedures for assessing such conflicts and in the future.’’); Iconic Artists LLC Initial Comments confidential, private, proprietary, or ensuring the integrity and fairness of the MLC’s at 2, U.S. Copyright Office Dkt. No. 2018–11, privileged information contained in the business transactions.’’). See Songwriters Guild of available at https://www.regulations.gov/ records of the mechanical licensing America, Inc. (‘‘SGA’’) Reply at 5 (‘‘[T]he mandating docketBrowser?rpp=25&po=0&dct=PS&D=COLC- of adoption by the MLC of conflict of interest 2018-0011&refD=COLC-2018-0011-0001 (‘‘In the collective and digital licensee policies in coordination with the USCO and the current paradigm there is a need for greater coordinator is not improperly disclosed Librarian of Congress would likewise be a wise and transparency and accuracy in reporting.’’); DLC or used.56 The Office encourages welcome development.’’). Reply at 28 (noting that ‘‘transparency will be 45 interested commenters in connection MLC Ex Parte Letter Apr. 3, 2020 (‘‘MLC Ex critical to ensuring that the MLC fulfills its duties Parte Letter #4’’) at 11. in a fair and efficient manner’’). with this notification of inquiry to 46 See Recording Academy Initial at 4 (‘‘[T]he 53 SGA Initial at 6 (urging the Register ‘‘to Copyright Office should articulate clear standards exercise the expansive oversight authority granted 55 See, e.g., Nat’l Cable & Telecomms. Ass’n v. for the MLC board regarding board operations and . . . under the MMA’’). Brand X Internet Servs., 545 U.S. 967, 980 (2005) governance, including appointments and 54 FMC Reply at 2 (stating ‘‘the Copyright Office’s (‘‘[A]mbiguities in statutes within an agency’s succession.’’); Music Artists Coalition (‘‘MAC’’) oversight of the MLC’s activities should be robust’’). jurisdiction to administer are delegations of Initial at 2 (expressing concern regarding the See also Recording Academy Initial at 4 (‘‘the authority to the agency to fill the statutory gap in selection and makeup of the MLC board of directors Copyright Office should articulate clear standards reasonable fashion.’’) (citing Chevron, U.S.A., Inc. v. and statutory committees). for the MLC board regarding board operations and Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). 47 84 FR at 32276–95. governance . . .’’); DLC Reply at 28 (encouraging See also Conf. Rep. at 4, 12. 48 U.S. Copyright Office, MLC and DLC Contact ‘‘the Copyright Office to vigilantly exercise its 56 U.S. Copyright Office, Notice of Proposed Information, Boards of Directors, and Committees, ongoing authority under the MMA to ensure the Rulemaking, Treatment of Confidential Information https://www.copyright.gov/music-modernization/ success of this enterprise’’); Lowery Reply at 2 by the Mechanical Licensing Collective and Digital mlc-dlc-info/ (last visited Apr. 10, 2020). (stating ‘‘the Copyright Office shouldn’t delay Licensee Coordinator, Dkt. No. 2020–7, published 49 84 FR 49966, 49973 (Sept. 24, 2019). establishing the rules of the road’’). elsewhere in this issue of the Federal Register.

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review that separate notice carefully and MLC will distribute unclaimed licensing collective.67 The MLC’s consider commenting on that notice as royalties,61 development updates and annual report could thus serve as a well. certifications related to its IT systems,62 means for the collective to publicly and the MLC’s efforts to identify address issues related to vendor II. Subjects of Inquiry copyright owners.63 These comments selection criteria and performance. A. Transparency of MLC Operations; suggest that comprehensive annual Similarly, in addition to the Annual Reporting reporting may be a key means though information provided in the MLC’s One avenue for transparency with which visibility into MLC operations bylaws, which will be made publicly respect to the MLC is through its annual occurs, and thus certain information (in available, the annual report could report. The MMA requires the MLC to addition to statutorily required further address issues related to MLC publish an annual report no later than information) should be included for full board and committee selection criteria. June 30 of each year after the license transparency. Indeed, the MLC itself The annual report could thus disclose availability date, setting forth recognizes that its annual report is one any actual or potential conflicts raised information regarding: (1) Its way in which it intends to ‘‘promote with and/or addressed by its board of 64 operational and licensing practices; (2) transparency.’’ directors, if any, in accordance with the how royalties are collected and As part of analyzing whether it may MLC’s policy.68 distributed; (3) budgeting and be beneficial to flesh out the level of The Office seeks public input on any expenditures; (4) the collective total detail required in the MLC’s annual issues that should be considered costs for the preceding calendar year; (5) report through a rule, commenters may relating to the substance of the MLC’s the MLC’s projected annual budget; (6) consider specific types of additional annual reports, including any proposed aggregated royalty receipts and information the MLC should include. regulatory language. The Office payments; (7) expenses that are more For example, a few commenters welcomes views regarding any than ten percent of the MLC’s annual expressed a desire for more information additional considerations or proposed budget; and (8) the MLC’s efforts to about the MLC’s vendor selection regulatory approaches to address issues locate and identify copyright owners of 65 process. While the Office may raised in the public comments beyond unmatched musical works (and shares consider the MLC’s capabilities, the annual reporting mechanism. of works).57 The MLC must deliver a including through its vendors, during Further, and in light of the MLC’s copy of the annual report to the Register the re-designation process as part of its position that regulatory language may be of Copyrights and make this report duty to confirm whether the collective premature, the Office invites the MLC to publicly available.58 has ‘‘the administrative and publicly share with greater particularity The annual report thus functions as a technological capabilities to perform the operational and communications statutorily-prescribed outlet for the MLC 66 required functions’’ of the collective, planning information, such as notional to provide much of the information the statute vests the MLC itself with schedules, beta wireframes, or other requested by parties in response to the authority to ‘‘[i]nvest in relevant documentation, to provide context to September 2019 notification of inquiry. resources, and engage for services of MLC stakeholders in the months leading Some commenters recognized the role outside vendors and others, to support up to the license availability date. that the annual reporting would play in the activities of the mechanical facilitating the transparency envisioned B. Categories of Information in the by the MMA and the MLC itself. The 61 Lowery Reply at 8 (expressing concern about MLC’s Musical Works Public Database DLC, for example, suggested that manner in which the MLC will distribute although the ‘‘the MMA generally unclaimed royalties based on market share); Monica The MLC must establish and maintain specifies that the MLC’s annual report Corton Consulting Reply at 3 (same). a free public database of musical work 62 Lowery Reply at 5 (expressing concern about ownership information that also must ‘‘set[ ] forth information regarding manner in which the MLC will disclose system . . . the operational and licensing updates). identifies the sound recordings in which 69 practices of the collective,’’ ‘‘how 63 SGA Initial at 6 (asking for the Office to the musical works are embodied, a royalties are collected and distributed,’’ ‘‘mandate the undertaking through the institution of function expected to provide and ‘‘the efforts of the collective to best practices, bona fide and easily reviewable transparency across the music efforts by the MLC to identify as great a percentage industry.70 For musical works that have locate and identify copyright owners of of the proper owners of unmatched royalties and unmatched musical works (and shares titles as possible’’). of works),’’ it ‘‘will be crucial for the 64 The MLC, Transparency, https://themlc.com/ 67 Id. at 115(d)(3)(C)((i)(VII). See 84 FR at 32287 Office to ensure that the MLC follows faqs/categories/transparency (last visited Apr. 10, (discussing MLC applicants’ proposed approaches 2020) (noting that the MLC will ‘‘promote to using vendors). not just the letter of these requirements transparency’’ by ‘‘[p]roviding an annual report to 68 See also Lowery Reply at 8 (asserting that the 59 but their spirit.’’ Other commenters the public and to the Copyright Office detailing the MLC, including board members, officers, and key similarly asked for MLC oversight to operations of The MLC, its licensing practices, employees, should disclose financial incentives or ensure disclosure of information in collection and distribution of royalties, budget and benefits received ‘‘from any person or entity MLC specific areas the statute envisions the cost information, its efforts to resolve unmatched does business with’’). royalties, and total royalties received and paid 69 17 U.S.C. 115(d)(3)(E), (e)(20). annual report addressing, though out’’). 70 See 164 Cong. Rec. H3522 at 3542 (daily ed. without directly linking such oversight 65 National Association of Independent Apr. 25, 2018) (statement of Rep. Norma Torres) to the annual report: board Songwriters (‘‘NOIS’’) et al. Initial at 16 (‘‘Complete (‘‘Information regarding music owed royalties governance,60 the manner in which the transparency through public documents and test would be easily accessible through the database results in regards to the selection of the vendors created by the Music Modernization Act. This must be provided. This should include the transparency will surely improve the working 57 17 U.S.C. 115(d)(3)(D)(vii)(I)(aa)–(hh); Conf. methodology used for selection along with the relationship between creators and music platforms Rep. at 7. results of any Request For Proposals, test results, and aid the music industry’s innovation process.’’). 58 17 U.S.C. 115(d)(3)(D)(vii)(II). pricing structure, rates and additional criteria.’’); See also The MLC, Transparency, https:// 59 DLC Initial at 24. MAC Initial at 3 (‘‘The need for a fully transparent themlc.com/faqs/categories/transparency (last 60 Recording Academy Reply at 2 (encouraging process is also deeply important in the RFI/RFP visited Apr. 10, 2020) (noting that the MLC will the Copyright Office to ‘‘make oversight of the MLC process to select a vendor.’’); Lowery Reply at 3, 12; ‘‘promote transparency’’ by ‘‘[p]roviding a priority, particularly with regard to establishing SGA Reply at 4–5. unprecedented access to musical works ownership processes and procedures for board governance’’). 66 17 U.S.C. 115(d)(3)(A)(iii). information through a public database’’).

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been matched, the statute requires the same time, the Office is mindful of the and making publicly available MLC’s database to include: MLC’s corresponding duties to keep songwriter and composer information, 1. The title of the musical work; confidential business and personal with SGA for example noting, ‘‘[w]hile 2. The copyright owner of the musical information secure and inaccessible; for the names of copyright owners and work (or share thereof), and the ownership example, data related to computation of administrators associated with a percentage of that owner; market share is contemplated by the musical work may change on a constant 3. Contact information for such copyright statue as sensitive and confidential, basis, and other variables and data owner; and despite some comments suggesting that points are subject to frequent 4. To the extent reasonably available to the this information should be publicly adjustment, the title and the names of MLC, (a) the ISWC for the work, and (b) shared.76 Recognizing that a robust the creators never vary from the date of identifying information for sound recordings 79 in which the musical work is embodied, musical works database may contain a work’s creation forward.’’ Others including the name of the sound recording, many fields of information, the Office echoed the strong need for the database featured artist, sound recording copyright tentatively concludes that this to include songwriter/composer owner, producer, ISRC, and other rulemaking may be most valuable in information, and the MLC and DLC both information commonly used to assist in establishing a floor of required proposed regulatory language including associating sound recordings with musical information, that copyright owners and this field.80 The Office finds these 71 works. other stakeholders can reliably expect to comments persuasive in light of the For unmatched musical works, the access in the public database, while statute, and is inclined to require that statute requires the database to include, providing the MLC with flexibility to songwriter and composer information be to the extent reasonably available to the include additional data fields that it publicly available in the MLC’s MLC: finds helpful.77 database, to the extent known to the 1. The title of the musical work; The September 2019 notification of MLC. inquiry asked which specific additional 2. The ownership percentage for which an 2. Studio Producer owner has not been identified; categories of information, if any, should 3. If a copyright owner has been identified be required for inclusion in the MLC’s The statute requires the database to but not located, the identity of such owner database, and stakeholder comments, include ‘‘producer,’’ to the extent and the ownership percentage of that owner; generally furthering mandating reasonably available to the MLC.81 4. Identifying information for sound inclusion of additional information, are Initially, there appeared to be confusion recordings in which the work is embodied, discussed by category below.78 To the about the meaning of this term, with the including sound recording name, featured extent additional categories of MLC originally believing that artist, sound recording copyright owner, producer, ISRC, and other information information should be made publicly ‘‘producer’’ referred to ‘‘the record label commonly used to assist in associating sound available in the MLC’s database, but are or individual or entity that recordings with musical works; and not discussed below, the Office invites commissioned the sound recording.’’ 82 5. Any additional information reported to public comments regarding those Following comments and discussion the MLC that may assist in identifying the additional categories. with Recording Academy and the work.72 1. Songwriter or Composer Recording Industry Association of For both matched and unmatched America, Inc. (‘‘RIAA’’), who works, the MLC’s database must also Multiple commenters noted the compellingly suggest that the legislative include ‘‘such other information’’ ‘‘as importance of the database including intent was that the term mean refer to the Register of Copyrights may prescribe the studio producer, the MLC updated 73 ‘‘efficient and accurate collection and distribution its understanding.83 The MLC contends, by regulation.’’ The ‘‘Register shall of royalties’’). use its judgement to determine what is 76 17 U.S.C. 115(d)(3)(J)(i)(II)(bb) (‘‘the however, that ‘‘the studio producer of a an appropriate expansion of the mechanical licensing collective shall take sound recording is not a data item that required fields, but shall not adopt new appropriate steps to safeguard the confidentiality and security of usage, financial, and other sensitive 79 See SGA Initial at 2. fields that have not become reasonably data used to compute market shares in accordance 80 See Barker Initial at 2 (urging inclusion of ‘‘data accessible and used within the industry with the confidentiality provisions prescribed by fields for songwriters for each musical work,’’ for the Register of Copyrights’’). See MLC Initial at 24 unless there is widespread support for matched and unmatched works); FMC Reply at 2 the inclusion of such fields.’’ 74 (contending that not all information contained in its database ‘‘would be appropriate for public (‘‘We agree that it’s of utmost importance that the In considering whether to prescribe disclosure,’’ and that it ‘‘should be permitted to MLC database contain songwriter/composer the inclusion of additional fields exercise reasonable judgment in determining what names.’’); The International Confederation of information beyond what is statutorily required Societies of Authors and Composers (‘‘CISAC’’) & beyond those statutorily required, the the International Organisation representing Office will focus on fields that would should be made available to the public’’); MAC Reply at 2–3 (suggesting ‘‘data relating to market Mechanical Rights Societies (‘‘BIEM’’) Reply at 6 advance the goal of the MLC’s database: share determinations and voluntary licenses’’ (‘‘CISAC and BIEM strongly support the need for Reducing the number of unmatched should be publicly shared). the inclusion of creators’ names in the MLC Database since it is the safest information to 77 Compare U.S. Copyright Office, Notice of works by accurately identifying musical identify a work (publishers may change, creators work copyright owners so they can be Proposed Rulemaking, Royalty Reporting and Distribution Obligations of the Mechanical never change . . .’’); MLC Reply at 32 (agreeing with paid what they are owed by digital Licensing Collective, Dkt. No. 2020–6, published inclusion of songwriter information for musical music providers operating under the elsewhere in this issue of the Federal Register works); DLC Reply at 26 (agreeing ‘‘with several section 115 statutory license.75 At the (proposing a floor of categories of information to be commenters that songwriter and composer required in periodic reporting to copyright owners, information should be collected and included in the but noting that the MLC expects to include database’’). 71 17 U.S.C. 115(d)(3)(E)(ii). 81 additional information). 17 U.S.C. 115(d)(3)(E)(ii)(IV), (iii)(I)(dd). 72 Id. at 115(d)(3)(E)(iii). 82 78 84 FR at 49972. See, e.g., SoundExchange MLC Initial at 13 n.6. 73 Id. at 115(d)(3)(E)(ii)(V), (iii)(II). Initial at 6 (‘‘[T]he data fields recited in the statute 83 Recording Academy Initial at 3 (urging Office 74 Conf. Rep. at 7. should be viewed as a minimal and vaguely to ‘‘clarify that a producer is someone who was part 75 See id. (noting that the ‘‘highest responsibility’’ described set of data for understanding rights with of the creative process that created a sound of the MLC’s includes ‘‘efforts to identify the respect to a musical work in a crowded field where recording’’); RIAA Initial at 11 (stating ‘‘producer’’ musical works embodied in particular sound there are many millions of relevant works with should be defined as ‘‘the primary person(s) recordings,’’ ‘‘identify[ing] and locat[ing] the similar titles in different languages and complicated contracted by and accountable to the content owner copyright owners of such works so that [the MLC] ownership structures to understand and for the task of delivering the recording as a finished can update the database as appropriate.’’ and communicate.’’). product’’); MLC Reply at 35.

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is needed operationally by the MLC,’’ available to the MLC.92 For its part, available to the MLC, ‘‘all additional and that the ‘‘producer’’ field is not SoundExchange asserts that the ‘‘CWR entities involved with the licensing or included in the Common Works standard contemplates a much richer set ownership of the musical work, Registration (‘‘CWR’’) format or the of information about ‘interested parties’ including publishing administrators and DDEX DSRF format(s) that the MLC linked to CISAC’s Interested Party aggregators, publishers and sub- plans to use.84 Should the MLC be Information (‘IPI’) system, including publishers, and any entities designated provided ‘‘a single feed of authoritative information about songwriters and to receive license notices, reporting, sound recording data,’’ the MLC publishers at various levels,’’ and so the and/or royalty payment on the copyright ‘‘proposes that the ‘studio producer’ database should include and make owners’ behalf.’’ 97 Similarly, information be included to the extent available a full set of information about SoundExchange observes that available.’’ 85 interested parties involved in the ‘‘[c]ommercialization of musical works The term ‘‘producer’’ relates not only creation and administration of the often involves chains of publishing, sub- to the public database, but also to other musical work, including shares and publishing and administration open rulemakings, including identifiers.’’ 93 agreements that determine who is information provided by digital music The MLC plans to include the IPI entitled to be paid for use of a work,’’ providers in reports of usage. In number and ISNI in the public database, and that the CWR standard connection with its separate NPRM but does not believe it should be contemplates gathering this information, concerning reports of usage, notices of required to do so through regulation.94 such that the MLC database should also license, and data collection efforts, The MLC also plans to create its own collect and make available this among other things, the Office is proprietary identifier for each musical information.98 currently proposing an overarching work in the database, and while it does The MMA does not specifically call definition that applies throughout its not identify which, the MLC ‘‘is giving out music publishing administrators, section 115 regulations to clarify that careful consideration to the virtue of that is, entities responsible for managing ‘‘producer’’ refers to the studio also including third party proprietary copyrights on behalf of songwriters, producer.86 musical work identifiers to aid including administering, licensing, and 3. Unique Identifiers interoperability of its database.’’ 95 collecting publishing royalties without The Office seeks public input on receiving an ownership interest in such As noted, the statute requires that issues relating to the inclusion of copyrights. One music publishing ISRC and ISWC codes, when available, unique identifiers for musical works in administrator noted that because ‘‘the be included in the MLC database.87 the MLC’s database, including whether copyright owner may not necessarily be According to the legislative history, regulations should require including IPI the entity authorized to control, license, ‘‘[u]sing standardized metadata such as or ISNI, the MLC’s own standard or collect royalties for the musical ISRC and ISWC codes, is a major step identifier, or any other specific work,’’ the MLC’s database should forward in reducing the number of additional standard identifiers include information identifying the unmatched works.’’ 88 The legislative reasonably available to the MLC, along administrators or authorized entities history also notes that ‘‘the Register may with supporting rationale. who license or collect on the behalf of at some point wish to consider after an musical work copyright owners.99 He appropriate rulemaking whether 4. Information Related to Ownership also proposes that because ‘‘a copyright standardized identifiers for individuals and Control of Musical Works owner’s ‘ownership’ percentage may would be appropriate, or even audio By statute, the MMA database must differ from that same owner’s ‘control’ fingerprints.’’ 89 include information related to the percentage,’’ the MLC’s database should The DLC proposes that the MLC’s ownership of the musical work as well database should include ‘‘any standard include separate fields for ‘‘control’’ as the underlying sound recording, 100 identifiers . . . used for creators and versus ‘‘ownership’’ percentage. The including ‘‘the copyright owner of the 101 copyright owners themselves,’’ such as MLC agrees with this approach. work (or share thereof), and the In addition, with respect to specific Interested Parties Information (IPI) 90 or ownership percentage of that owner,’’ ownership percentages, which are International Standard Name Identifier required by statute to be made publicly (‘‘ISNI’’),91 to the extent reasonably or, if unmatched, ‘‘the ownership percentage for which an owner has not available, SoundExchange raises the 96 question of how the database should 84 MLC Reply at 35. been identified.’’ The statute also 85 Id. at 35–36. requires a field called ‘‘sound recording best address ‘‘the frequent situation 86 U.S. Copyright Office, Notice of Proposed copyright owner,’’ the meaning of which (particularly with new works) where the Rulemaking, Music Modernization Act Notices of is discussed further below. various co-authors and their publishers License, Notices of Nonblanket Activity, Data The DLC proposed that the MLC have, at a particular moment in time, Collection and Delivery Efforts, and Reports of Usage and Payment, Dkt. No. 2020–5, published database should include, to the extent collectively claimed more or less than elsewhere in this issue of the Federal Register. 100% of a work.’’ 102 Noting that it may 87 17 U.S.C. 115(d)(3)(E)(ii)–(iii). creators, performers, producers, publishers, be difficult for the MLC to withhold 88 Conf. Rep. at 7. aggregators, and more. A different ISNI is assigned information regarding the musical work 89 Id. for each name used. ISNI is not widely in use across the music industry.’’ U.S. Copyright Office, until shares equal 100% (the practice of 90 IPI is ‘‘[a] unique identifier assigned to rights Glossary, https://www.copyright.gov/policy/ other systems), it suggests the MLC holders with an interest in an artistic work, unclaimed-royalties/glossary.pdf. including natural persons or legal entities, made ‘‘make available information concerning 92 known to the IPI Centre. The IPI System is an DLC Initial at 21; DLC Reply Add. at A–16. the shares claimed even when they total international registry used by CISAC and BIEM 93 SoundExchange Initial at 8; see id. at 7–8 more than 100% (frequently referred to societies.’’ U.S. Copyright Office, Glossary, https:// (‘‘Reflecting all applicable unique identifiers in the www.copyright.gov/policy/unclaimed-royalties/ MLC Database will allow users of the MLC Database 97 DLC Reply Add. at A–16. glossary.pdf. readily to match records in the database to other 98 SoundExchange Initial at 8. 91 ISNI is ‘‘[a] unique identifier for identifying the databases when ISWC is not included in one or the 99 public identities of contributors to creative works, other of the databases.’’). Barker Initial at 2. regardless their legal or natural status, and those 94 MLC Reply at 33. 100 Id. at 3. active in their distribution. These may include 95 Id. at 34. 101 MLC Reply at 32. researchers, inventors, writers, artists, visual 96 17 U.S.C. 115(d)(3)(C)(E)(ii)–(iii). 102 SoundExchange Initial at 8–9.

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as an ‘overclaim’) or less than 100% relating to track duration, version, and Here, too, the Office would like to (frequently referred to as an release date of sound recording.108 avoid a regulatory approach that ‘overclaim’).’’ 103 The MLC acknowledges the merits of discourages the MLC from including The Office tentatively concludes that including such information, noting it additional fields that it determines may it will be beneficial for the database to ‘‘recognizes CWR as the de facto be useful to include in the public database. The Office invites further include information related to all industry standard used for registration public comment on these issues, persons or entities that own or control of claims in musical works, and intends including whether a regulatory structure the right to license and collect royalties to use CWR as its primary mechanism similar to that proposed for the MLC’s related to musical works in the United for the bulk electronic registration of provision of data in royalty statements musical works data.’’ 109 While States, including that music publishing to copyright owners is appropriate cautioning that it ‘‘continues to believe administrator and control information regarding information to be made that overregulation is unnecessary and would be valuable additions. With publicly available in the MLC’s respect to the question SoundExchange may be detrimental to the MLC’s ability database, including what, if any, raises regarding works that may reflect to adapt its musical works database as additional fields should be required as underclaiming and overclaiming of necessary to ensure its usefulness in part of a regulatory floor. shares, the Office suggests that the identifying musical works,’’ 110 it MLC’s dispute resolution committee amended its proposed regulatory 6. Performing Rights Organization may be an appropriate forum to language to clarify that the database Affiliation consider this issue, as part of the would include ‘‘alternative titles of the A few commenters contend that the committee’s charge to establish policies musical work, and to the extent MLC’s database should include and procedures related to resolution of available to the mechanical licensing performing rights organization (‘‘PRO’’) disputes related to ownership interests collective, the track duration, version affiliation, with MIC Coalition for in musical works.104 In general, the title and release date of any sound example asserting that ‘‘[a]ny data Office seeks public input on any further recordings embodying a particular solution must not only encompass issues related to inclusion of this musical work.’’ 111 The MLC’s proposal mechanical rights, but also provide information in the public musical works would also require the database to information regarding public database, including proposed regulatory include additional fields ‘‘reported to performance rights, including PRO approaches. the mechanical licensing collective as affiliation and splits of performance may be useful for the identification of rights.’’ 115 The MLC points out that its 5. Additional Information Related to musical works that the mechanical ‘‘primary responsibility is to engage in Identifying Musical Works and Sound licensing collective deems appropriate the administration of mechanical rights Recordings to publicly disclose.’’ 112 In a separate and to develop and maintain a concurrent notice of proposed mechanical rights database,’’ and that Commenters proposed that the public rulemaking, the Office has proposed ‘‘gather[ing], maintain[ing], updat[ing] database include various other fields to requiring that the MLC report certain and includ[ing] . . . performance rights identify the musical work at issue or the data fields in royalty statements information—which rights it is not sound recording in which it is provided to copyright owners to the permitted to license—would require embodied. With respect to musical extent such information is ‘‘known’’ to significant effort which could imperil works, some commenters pointed to the MLC as a regulatory floor, while [its] ability to meet its statutory fields included in the existing Common encouraging the MLC to report obligations with respect to mechanical Works Registration (CWR) format, and additional information.113 And the rights licensing and administration by supported inclusion of information Office has issued a notice of proposed the [license availability date].’’ 116 FMC relating to alternate titles for musical rulemaking regarding the circumstances agrees, and further notes the challenge works,105 whether the work utilizes under which digital music providers in keeping PRO affiliation information samples and medleys of preexisting must provide these and other fields to accurate and up-to-date.117 The largest works,106 and opus and catalogue the MLC in reports of usage.114 PROs, The American Society of numbers and instrumentation of Composers, Authors, and Publishers classical compositions.107 With respect 108 See MLC Reply at 33, App. E (agreeing with (‘‘ASCAP’’) and Broadcast Music, Inc. to sound recordings, commenters inclusion of duration, version, and release year of (‘‘BMI’’), similarly object that because the sound recording, to the extent available to the ‘‘music performing rights organizations suggested inclusion of information MLC); Recording Academy Initial at 3 (noting such information would ‘‘help distinguish between songs such as BMI and ASCAP all have 103 Id.; see id. at 15 (‘‘[U]sers of the MLC Database that have been recorded and released under comprehensive databases on musical should be able to access information about different titles or by different artists multiple situations in which there are conflicting claims to times’’); RIAA Initial at 6–7 (same);. RIAA Usage and Payment, Dkt. No. 2020–5, published a work, including an overclaim (i.e., a situation recommends revising the ‘‘sound recording name’’ elsewhere in this issue of the Federal Register. field to ‘‘sound recording track title,’’ or in the where putative copyright owners have claimed 115 MIC Coalition Initial at 2. See DLC Initial at alternative, ‘‘sound recording name/sound shares that collectively amount to more than 100% 20 (suggesting that including PRO affiliation ‘‘will recording track title.’’ Id. at 10–11. of the work), so as to be able to understand the ensure that the MLC’s database is fully usable, 109 extent of the overlap and the rightsholders whose MLC Reply at 38. including as a resource for direct licensing claims are involved.’’). 110 Id. at 32. activities); see Barker Initial at 8–9. 104 17 U.S.C. 115(d)(3)(K). 111 Id. at App. E. 116 MLC Reply at 36. 105 See RIAA Initial at 8 (‘‘Sometimes the official 112 Id. 117 FMC Reply at 3 (‘‘[I]t’s difficult to see how title of a song includes an alternate title, or a 113 U.S. Copyright Office, Notice of Proposed including PRO information in the MLC database primary title followed by a second, parenthetical Rulemaking, Royalty Reporting and Distribution could work—as the MLC won’t be paying PROs, it’s title.’’); MLC Reply at 32 (agreeing with inclusion Obligations of the Mechanical Licensing Collective, hard to envision what would incentivize keeping of alternate titles for musical works). Dkt. No. 2020–6, published elsewhere in this issue this data accurate and authoritatively up to date. 106 SoundExchange Initial at 9 (noting that the of the Federal Register. Repertoire transparency is important, but it is not CWR standard contemplates provision of such 114 U.S. Copyright Office, Notice of Proposed the Copyright Office’s job to facilitate MIC’s information). Rulemaking, Music Modernization Act Notices of members’ efforts to bypass Performing Rights 107 Id. (noting that the CWR standard License, Notices of Nonblanket Activity, Data Organizations that offer songwriters collective contemplates provision of such information). Collection and Delivery Efforts, and Reports of representation.’’).

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works ownership rights, and these Understanding that termination issues language, including through the policies databases are publicly available,’’ can be complex, the Copyright Office and practices adopted by its dispute ‘‘administration of data with respect to notes that presumably, any requirement resolution and operations committees, the licensing of public performing rights to denote whether termination rights are and by establishing digital accounts does not require government relevant should be conditioned upon through which copyright owners can intervention.’’ 118 information provided to the MLC, and/ view, verify, or adjust information. Because the MMA explicitly restricts or otherwise reasonably available to it. the MLC from licensing performance The Copyright Office seeks public input The Office seeks further public input rights, it seems unlikely to be prudent on issues that should be considered on any issues that should be considered or frugal to require the MLC to expend relating to whether the proposed rule relating to the identification of data resources to maintain PRO affiliations should address the inclusion of sourcing in the MLC’s database, for rights it is not permitted to termination information in the MLC’s including whether (and how) third- license.119 Having considered these database. party data should be labeled. comments, the statutory text, and 9. Historical Data legislative history, the Office tentatively 8. Data Provenance concludes against requiring the MLC to The DLC contends that if the MLC’s Again pointing to the CWR standard, include PRO affiliation in its database. database includes third-party data, ‘‘it 125 SoundExchange asserts that the MLC This conclusion does not inhibit PRO should be labeled as such.’’ The database should ‘‘maintain and make DLC’s proposed language suggests that access or use of the database for their available historical interested party for musical work copyright owner own efforts, and explicitly permits bulk information so it is possible to know access for a fee that does not exceed the information, the MLC’s database should who is entitled to collect payments for MLC’s marginal cost to provide such indicate ‘‘whether the ownership information was received directly from shares of a work both currently and at access; nor does it restrict the MLC from 130 optionally including such the copyright owner or from a third any point in the past.’’ As noted information.120 party.’’ 126 SoundExchange agrees, above, the DLC has also proposed that stating that ‘‘the MLC Database should the MLC database include ‘‘information 7. Terminations identify the submitters of the regarding each entity in the chain of Title 17 allows, under certain information in it, because preserving copyright owners and their agents for a circumstances, authors or their heirs to that provenance will allow the MLC and particular musical work’’ as well as terminate an agreement that previously users of the MLC to make judgments ‘‘relational connections between each of granted one or more of the author’s about how authoritative the information these entities for a particular musical exclusive rights to a third party.121 One is.’’ 127 Others commenters noted that work.’’ 131 The MLC sought clarity about commenter suggests that to the extent for sound recordings, first-hand data is the DLC’s specific proposal, suggesting terminations of musical work grants more likely to be accurate.128 ‘‘[i]t is unclear whether the DLC . . . is have occurred, the MLC’s database Separately, the Copyright Office is referring to the entire historical chain of should include ‘‘separate iterations of addressing certain sourcing issues with title for each musical work. If so, the musical works with their respective respect to data collection efforts and MLC objects that ‘‘such information is copyright owners and other related information provided by digital music voluminous, burdensome to provide information, as well as the appropriately providers in a parallel rulemaking and maintain, and in this context matched recording uses for each proceeding.129 iteration of the musical work, and to The Office appreciates that issues unnecessary and must not be 132 make clear to the public and users of the related to data sourcing, confidence in required.’’ The MLC intends, database the appropriate version eligible data quality, accurate copyright however, to maintain information in its for future licenses.’’ 122 Separately, as ownership information, and agency or database about ‘‘each and every entity addressed in a parallel rulemaking, the licensing arrangements, can be nuanced. that, at any given point in time, owns a MLC has asked that the Office require The Office tentatively believes that the share of the right to receive mechanical digital music providers to include server MLC may be better-suited to explore the royalties for the use of a musical work fixation dates for sound recordings, best way to promote accuracy and in covered activities.’’ 133 contending that this information will be transparency in issues related to data The Copyright Office tentatively helpful to its determination whether provenance without such regulatory agrees with the MLC’s approach to focus particular usage of musical works is on current relationships with respect to affected by the termination of grants Presentation at 15; DLC Ex Parte Letter Feb. 24, this rulemaking, but welcomes further under this statutory provision.123 The 2020 (‘‘DLC Ex Parte Letter #2’’) at 4; DLC Ex Parte public input.134 The Office notes that DLC has objected to this request.124 Letter Mar. 4, 2020 (‘‘DLC Ex Parte Letter #3’’) at 5. separately, the MLC must maintain all 125 DLC Initial at 20. material records of the operations of the 118 ASCAP & BMI Reply at 2. 126 DLC Reply Add. A–15–16. 119 17 U.S.C. 115(d)(3)(C)(iii) (limiting 127 SoundExchange Initial at 10–11. mechanical licensing collective in a administration of voluntary licenses to ‘‘only [the] 128 The American Association of Independent secure and reliable manner, and such reproduction or distribution rights in musical works Music (‘‘A2IM’’) & RIAA Reply at 2 (asserting MLC information will also be subject to for covered activities.’’). should be required to obtain its sound recording 135 120 audit. Id. at 115(d)(3)(E)(v). See Barker Initial at 9. data from a single authoritative source); Jessop 121 17 U.S.C. 203, 304(c), 304(d). Initial at 3 (‘‘The MLC should obtain sound 122 Barker Initial at 4. recording information from as close to the source 130 SoundExchange Initial at 10. 123 MLC Reply at 19, 55. See also U.S. Copyright as possible. In practice this means from the record 131 DLC Initial at 20. label or someone directly or indirectly authorized Office, Notice of Proposed Rulemaking, Music 132 MLC Reply at 34. Modernization Act Notices of License, Notices of to manage this information for them.’’). 133 Id. Nonblanket Activity, Data Collection and Delivery 129 U.S. Copyright Office, Notice of Proposed 134 Efforts, and Reports of Usage and Payment, Dkt. No. Rulemaking, Music Modernization Act Notices of The Office does not envision language 2020–5, published elsewhere in this issue of the License, Notices of Nonblanket Activity, Data prohibiting the MLC from providing such historical Federal Register. Collection and Delivery Efforts, and Reports of information. 124 DLC Ex Parte Letter Feb. 14, 2020 (‘‘DLC Ex Usage and Payment, Dkt. No. 2020–5, published 135 17 U.S.C. 115(d)(3)(M)(i); id. at Parte Letter #1’’) at 3; DLC Ex Parte Letter #1 elsewhere in this issue of the Federal Register. 115(d)(3)(D)(ix)(II)(aa).

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C. Sound Recording Copyright Owner information.140 UMG suggested that the publicly listed as ‘‘Party Delivering the Information and Disclaimers or MLC’s inclusion of a field labeled Sound Recording to the DMP’’ and the Disclosures in MLC Public Database ‘‘sound recording copyright owner’’ LabelName, listed as ‘‘Releasing Party (if might confuse relations between the provided).147 Finally, since these RIAA, and individual record labels, actual copyright owner and the record concerns connect directly to the ERN expressed concern about which label conveying information to the DMP, standard, the Office welcomes any information will populate and be where the label is functioning as a non- information regarding whether it is displayed to satisfy the statutory copyright owner distributor through a requirement to include ‘‘sound likely that the ERN standard may evolve licensing or press and distribution in a relevant manner, and again recording copyright owner’’ (SRCO) in (P&D) arrangement.141 Sony Music the MLC’s database. Specifically, RIAA reiterates its commitment to ensuring (‘‘Sony’’) expressed similar concerns, appropriate regulatory flexibility. explained that under current industry suggesting that the Office’s regulations Relatedly, the Office also notes that it practice, digital music providers send specify how the ‘‘sound recording has received persuasive comments royalties pursuant to information copyright owner’’ line in the MLC’s requesting that the MLC be required to received from record companies or database should be labeled or defined to include a conspicuous disclaimer others releasing recordings to DMPs minimize confusion.142 Specifically, regarding sound recording copyright ‘‘via a specialized DDEX message Sony suggested that three fields—DDEX ownership information in its database. known as the ERN (or Electronic Release Party Identifier (DPID), LabelName, and For example, RIAA suggests that the Notification),’’ which is ‘‘typically PLine—may provide indicia relevant to populated with information about the determining sound recording copyright MLC should be required to ‘‘include a party that is entitled to receive royalties ownership, noting that ‘‘DIY artists and clear and conspicuous disclaimer on the (who may or may not be the actual legal aggregators serving that community’’ home screen of the public database that copyright owner), because that is the may be most likely to populate the DPID it does not purport to provide information that is relevant to the field.143 In reply comments, A2IM & authoritative information regarding business relationship between record RIAA also identified these same three sound recording copyright owner 136 148 labels and DMPs.’’ In short, fields.144 information.’’ A2IM & RIAA, CISAC information in ‘‘the ERN message is not The Copyright Office received no & BIEM, and SoundExchange agree that meant to be used to make legal comments disputing the labels’ the MLC’s database should display such 137 determinations of ownership.’’ RIAA description of industry practice. As the a disclaimer.149 And the MLC itself has notes the potential for confusion MMA also requires ‘‘sound recording agreed to display a disclaimer that its stemming from the SRCO field in the copyright owner’’ to be reported by database should not be considered an MLC database being populated from the DMPs to the MLC in monthly reports of authoritative source for sound recording labels’ ERN messages—for both the MLC usage, the Office has separately information.150 Similarly, given the (i.e., the MLC could ‘‘inadvertently proposed a rule regarding which current record regarding these issues, misinterpret or misapply SRCO data’’), information should be included in such the Office is not presently inclined to and users of the free, public database reports to satisfy this requirement. That require that the MLC include (i.e., they could mistakenly assume that rule proposes that DMPs can satisfy this information relating to sound recording the sound recording copyright owner obligation by reporting information in copyright owner with the same information is authoritative with respect each of the fields identified by the prominence as other information related 138 to ownership of the sound recording). labels: DDEX Party Identifier (DPID), to matched and unmatched musical Separate but relatedly, SoundExchange LabelName, and PLine.145 The Office works. The Office invites comment on notes that it ‘‘devotes substantial seeks public comment regarding which these issues. resources’’ to tracking changes in sound data the proposed rule should require recording rights ownership, suggesting D. Access to Public Information in the including in the MLC database to satisfy MLC’s Database that inclusion of this field ‘‘creates a the statutory requirement, including 139 potential trap for the unwary.’’ whether to require inclusion of multiple As noted above, the statute directs the Those concerns were echoed in ex fields to lessen the perception that a Copyright Office to ‘‘establish parte meetings with individual record single field contains definitive data requirements by regulations to ensure labels. Universal Music Group (‘‘UMG’’) regarding sound recording copyright the usability, interoperability, and usage explained that ‘‘actual copyright ownership information.146 The Office restrictions of the [MLC’s] musical ownership is irrelevant’’ in the digital also welcomes comments related to the works database.’’ 151 The database must supply chain, as ‘‘DMPs only need to labelling of such field(s). For example, ‘‘be made available to members of the know who to pay and, maybe, who to contending that in many cases, the public in a searchable, online format, call,’’ whereas record companies PLine names an individual who may separately track copyright ownership wish not to be listed in a public 147 A2IM & RIAA Reply at 9–10. database, A2IM & RIAA suggest that the 148 RIAA Initial at 10. 136 RIAA Initial at 2. Although the RIAA’s initial MLC database include the DPID name, 149 A2IM & RIAA Reply at 9 (urging Office to comments suggested that the ERN feed included a require ‘‘a strong, prominent disclaimer’’ to field labeled sound recording copyright owner ‘‘make[ ] it explicitly clear that the database does 140 UMG & RIAA Ex Parte Letter at 2. (SRCO), upon reply, it clarified that there is no such not purport to provide authoritative information 141 specific field. See A2IM & RIAA Reply at 8 n.5. Id. at 2–3. about sound recording copyright ownership’’); 137 RIAA Initial at 2. 142 Sony & RIAA Ex Parte Letter at 1–2. CISAC & BIEM Reply at 8 (‘‘CISAC and BIEM also 138 Id. at 3; see id. (‘‘If database users seek out and 143 Id. encourage the use of appropriate disclaiming enter into sound recording licenses with the wrong 144 A2IM & RIAA Reply at 8–10. language in regard to the content of the database, parties and/or make payments to the wrong 145 U.S. Copyright Office, Notice of Proposed where necessary.’’); SoundExchange Initial at 12 parties—because they misunderstand what the data Rulemaking, Music Modernization Act Notices of (‘‘At a minimum, the MLC Database should at least in the SRCO column of the MLC database actually License, Notices of Nonblanket Activity, Data include a disclaimer that the MLC Database is not represents—that would negatively impact our Collection and Delivery Efforts, and Reports of an authoritative source of sound recording rights member companies and the artists whose Usage and Payment, Dkt. No. 2020–5, published owner information.’’). recordings they own and/or exclusively license.’’). elsewhere in this issue of the Federal Register. 150 MLC Reply at 37. 139 SoundExchange Initial at 11–12. 146 17 U.S.C. 115(d)(3)(E)(ii), (iii). 151 17 U.S.C. 115(d)(3)(E)(vi).

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free of charge.’’ 152 The MLC must make statute. For example, SoundExchange assertion that providing APIs would be the data available ‘‘in a bulk, machine- replied that ‘‘[w]eekly downloads of a financially burdensome, stating that ‘‘it readable format, through a widely copy of the database are distinctly is not obvious that there would be a available software application,’’ to different and less useful than real-time significant cost difference between digital music providers operating under access to current data,’’ noting that the providing full API access and the valid notices of license, compliant MLC will be making constant updates diminished access the DLC significant nonblanket licensees, and thus a weekly download would describes.’’ 165 Sound Exchange also authorized vendors of such digital quickly become out of date.160 notes that in the designation of the music providers or significant SoundExchange asserts that failure to mechanical licensing collection, the nonblanket licensees, and the Copyright provide real-time access ‘‘could unfairly Office stated that both applicants Office, free of charge, and to ‘‘[a]ny distort competition for musical work intended to develop APIs.166 other person or entity for a fee not to license administration services by At this time, the Office is tentatively exceed the marginal cost to the giving the MLC and its vendors disinclined to regulate the precise mechanical licensing collective of preferred access to current data,’’ and format in which the MLC provides bulk providing the database to such person or that the Office should ‘‘maintain[ ] a access to its database (e.g., APIs), so as entity.’’ 153 The legislative history level playing field in the market for to provide the MLC flexibility as stresses the importance of the MLC’s musical work license administration technology develops in providing database and making it available to ‘‘the services.’’ 161 A2IM & RIAA also note database access. The Office notes, public without charge, with the that it would be ‘‘damaging to the entire however, that Congress clearly exception of recovery of the marginal music ecosystem for third parties to envisioned use of the MLC’s database by cost of providing access in bulk to the utilize stale data, especially if they use entities other than digital music public.’’ 154 It adds that ‘‘[i]ndividual it in connection with some sort of providers and significant nonblanket lookups of works shall be free although public-facing, data-related business or to licensees.167 Moreover, the MLC’s the collective may implement drive licensing or payment database is meant to serve as an reasonable steps to block efforts to decisions.’’ 162 authoritative source of information bypass the marginal cost recovery for Further, RIAA, SoundExchange, FMC, regarding musical work ownership bulk access if it appears that one or MAC, and the Recording Academy all information,168 and provide more entities are attempting to stress the importance of real-time access transparency. These goals support real- download the database in bulk through to the MLC’s database through APIs.163 time access to the MLC’s database, repeated queries.’’ 155 And it further MAC asserts that having API access and either via bulk access or online song-by- states that ‘‘there shall be no ensuring interoperability ‘‘with other song searches.169 requirement that a database user must systems is the best way to make certain The Office seeks public input on any register or otherwise turn over personal the MLC database becomes part of the issues that should be considered information in order to obtain the free overall music licensing ecosystem.’’ 164 relating to access to the MLC’s database, access required by the legislation.’’ 156 SoundExchange challenges the DLC’s including proposed regulatory language that would facilitate the MLC’s 1. Method of Access 160 SoundExchange Reply at 4–5, 7 (noting that its provision of real-time access to the The DLC maintains that the MLC Rights Management Department is ‘‘devoted to database (bulk and online song-by- ensuring that our rights management database is song). should not be required to provide more always populated with the most current than ‘‘[b]ulk downloads (either of the information about who is entitled to be paid for use 2. Marginal Cost entire database, or of some subset of the sound recordings in our repertoire database,’’ thereof) in a flat file format, once per and that they ‘‘make changes to our rights Despite the statute and legislative management database all day every day’’); see history stating third parties may be week per user,’’ and ‘‘[o]nline song-by- SoundExchange Initial at 13–14 (‘‘no third party song searches to query the database, e.g., maintaining a local musical work repertoire 165 SoundExchange Reply at 8. through a website.’’ 157 The DLC also database will ever be able to obtain and maintain 166 Id. at 3 (citing 84 FR at 32289). In its contends that ‘‘it would be unreasonable ownership information as current and accurate as the MLC’s. Providing robust API access to the MLC September 2019 notification of inquiry, the Office for digital music providers and Database will discourage the creation and noted that ‘‘[MLC] stated that it strongly support[s] the adoption of standards, formats, and frameworks significant nonblanket licensees to foot maintenance of less accurate local alternatives, that allow information to be easily and accurately promoting accurate licensing of and payment for the bill for database features that would shared throughout the industry, and that good musical works.’’). only benefit entities or individuals who systems functioning and architectural practices 161 are not paying a fair share of the MLC’s SoundExchange Reply at 9. See also id. at 5 instruct that components should have proper APIs.’’ (‘‘Making only last week’s data available to bulk costs,’’ 158 and that APIs are ‘‘not needed 84 FR at 49972. users would also result in a curious situation where 167 See 17 U.S.C. 115(d)(3)(E)(v) (granting bulk by digital music providers and members of the public with free access to the MLC access to the MLC’s database to ‘‘[a]ny other person significant nonblanket licensees.’’ 159 Database to search for information on individual or entity for a fee not to exceed the marginal cost In response, multiple commenters works would seem to have access to more current to the mechanical licensing collective of providing assert that real-time access to the MLC’s data than commercial users with bulk access, who the database to such person or entity’’). See also in some cases would have to pay for such access.’’). RIAA Initial at 11 (asserting that record labels database—not merely a weekly file—is 162 A2IM & RIAA Reply at 7. ‘‘anticipate making frequent use of the MLC necessary to meet the goals of the 163 RIAA Initial at 11 (‘‘To facilitate efficient database’’). business-to-business use of the MLC database, the 168 See 17 U.S.C. 115(d)(3)(E), (e)(20). 152 Id. at 115(d)(3)(E)(v). regulations should require the MLC to offer free API 169 See MIC Coalition Initial at 3 (‘‘The 153 Id. at 115(d)(3)(E)(v). access to registered users of the database who opaqueness of the current music marketplace request bulk access.’’); SoundExchange Reply at 4– 154 H.R. Rep. No. 115–651, at 8; S. Rep. No. 115– creates uncertainty that disproportionately harms 5; FMC Reply at 3 (concurring with 339, at 8; Conf. Rep. at 7. small artists and independent publishers and stifles SoundExchange’s recommendations about API 155 H.R. Rep. No. 115–651, at 8; S. Rep. No. 115– innovation. All stakeholders in the music access, ‘‘including the recommendations that API marketplace benefit when current and accurate 339, at 8–9; Conf. Rep. at 7. access include unique identifiers, catalog lookup, 156 information about copyright ownership is easily H.R. Rep. No. 115–651, at 8; S. Rep. No. 115– and fuzzy searching’’); Recording Academy Initial accessible. We believe this transparency is a 339, at 9; Conf. Rep. at 7. at 4 (‘‘ensuring that the database has a user-friendly necessary baseline in creating a more sustainable 157 DLC Initial at 21. API and ‘machine-to-machine’ accessibility is and equitable system, and a good step toward 158 Id. important to its practical usability’’). supporting greater fairness in the music 159 DLC Reply at 26. 164 MAC Initial at 2. marketplace.’’).

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charged the ‘‘marginal cost’’ of being recovery for bulk access (i.e., abuse), the use in the database,’’ the MLC believes provided bulk access, A2IM & RIAA MLC ‘‘may implement reasonable steps appropriate terms of use should address express concern about making the to block efforts to bypass the marginal potential misuse of information from the MLC’s database available to third parties cost recovery for bulk access if it MLC’s database (rather than ‘‘unless the fee those third parties are appears that one or more entities are regulations).179 required to pay takes into account the attempting to download the database in While the Office agrees that it will be 174 cost for the MLC to acquire that data bulk through repeated queries.’’ Both important for the MLC to develop and all of the costs and hard work that the MLC and DLC propose regulatory reasonable terms of use to address goes into creating, compiling, verifying, language that would provide the MLC potential misuse of information in its deduping, etc. the sound recording data discretion to block efforts to bypass the 175 database and appreciates the role that that will reside within the MLC marginal cost recovery. A2IM & RIAA contractual remedies may play to deter database and the potential opportunity also suggest that the MLC be required to abuse, the MMA directs the Office to costs to [record labels] of having that implement technological protection issue regulations regarding ‘‘usage data available to third parties via the measures (‘‘TPMs’’) to reduce the restrictions,’’ in addition to usability MLC.’’ 170 RIAA contends that otherwise likelihood of third parties ‘‘scraping’’ and interoperability of the database.180 third-party businesses ‘‘would be able to data without paying any fee.176 The The Office is mindful of the risk of access that data at a highly subsidized, Office agrees that, in principle, the MLC misuse. For example, bad actors could below-market price.’’ 171 RIAA asks the should at a minimum have such acquire and misrepresent information, Office to define ‘‘marginal cost’’ to discretion. The Office seeks public or exploit personally identifiable ‘‘include not just the cost of creating input on any issues that should be information (‘‘PII’’) that must be and maintaining the bulk access, but considered relating to regulatory publicly available under the statute also the cost to the MLC of acquiring the language concerning the MLC’s ability (e.g., copyright owner of the musical data, including payment to the data to block efforts to bypass the marginal work (or share thereof), and the source, for the hard work of aggregating, cost recovery, particularly how to avoid verifying, deduping and resolving penalizing legitimate users while ownership percentage of that owner). At conflicts in the data.’’ 172 providing the MLC flexibility to police the same time, the Office recognizes that The Office tentatively declines this abuse, and whether regulatory language potential regulations and any terms of request. It is not clear that ‘‘marginal should address application of TPMs. use issued by the MLC should not be cost’’ is a vague term, and at this point, overly broad or impose unnecessary 181 the Office believes the MLC should be 4. Restrictions on Use restrictions upon good faith users. able to determine the best pricing CISAC & BIEM ask the Copyright The Office seeks public input on any information in light of its operations, Office to issue regulations defining issues that should be considered based on the statutory and legislative ‘‘strict terms and conditions’’ for use of relating to restrictions on usage of history language.173 data from the MLC’s database by digital information in the MLC’s database, music providers and significant 3. Abuse including whether regulatory language nonblanket licensees (and their should address remedies for misuse The Office does welcome comments authorized vendors), ‘‘including (and if so, how and why), or otherwise regarding proposed regulatory language prohibition for DSPs to use data for provide a potential regulatory floor for to deter abusive third-party access to the purposes other than processing uses and the MLC’s terms of use. The Office database. The legislative history states managing licenses and collaborating invites parties to provide specific that in cases of block efforts by third with the MLC in data collection.’’ 177 By proposed regulatory language for the parties to bypass the marginal cost contrast, the DLC maintains that Office to consider and for others to ‘‘licensees should be able use the data comment upon. 170 A2IM & RIAA Reply at 7. they receive from the MLC for any legal 171 Id. purpose.’’ 178 While the MLC ‘‘agrees Dated: April 15, 2020. 172 Id. at 8. that there should be some reasonable Regan A. Smith, 173 See Conf. Rep. at 7 (‘‘Given the importance of limitation on the use of the information General Counsel and Associate Register of this database, the legislation makes clear that it shall be made available to the Copyright Office and to ensure that it is not misappropriated Copyrights. the public without charge, with the exception of for improper purposes’’ and ‘‘intends to [FR Doc. 2020–08376 Filed 4–17–20; 4:15 pm] recovery of the marginal cost of providing access in include such limitation in its terms of BILLING CODE 1410–30–P bulk to the public.’’). See also Music Reports Initial at 5 (‘‘Music Reports notes that the marginal cost 174 H.R. Rep. No. 115–651, at 8; S. Rep. No. 115– 179 of automated daily data delivery protocols is MLC Reply at 37–38. 339, at 8–9; Conf. Rep. at 7. relatively trivial, and calls upon the Office to ensure 180 17 U.S.C. 115(d)(3)(E)(vi). 175 MLC Initial at 25; DLC Reply Add. at A–17. that such automated delivery be made available 181 See Conf. Rep. at 6 (‘‘Music metadata has more 176 A2IM & RIAA Reply at 7. upon the first availability of the MLC’s database, often been seen as a competitive advantage for the 177 CISAC & BIEM Initial at 4. and that the fee schedule scrupulously adhere to party that controls the database, rather than as a the ‘marginal cost’ standard.’’). 178 DLC Initial at 21. resource for building an industry on . . . .’’).

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