The following is a guest post by Regan A. Smith, General Counsel and Associate Register of Copyrights.
The Music Modernization Act (MMA) is a historic overhaul to the nation’s music copyright laws. As you may already know, the law creates a new blanket license covering the reproduction and distribution of musical works, to be administered by a mechanical licensing collective (MLC) once the license becomes available in 2021. The Copyright Office is busy doing its part as an agency to implement this law before the new blanket license is available, and we want to make sure everyone who is interested can keep track of what is going on. Below are some important updates.
Mount Up: Four Regulatory Notices Published Today
The MMA directs the Copyright Office to adopt a number of regulations to govern the new blanket licensing system for musical works. Since the law was passed, we have engaged in a number of actions, including designating the MLC and a digital licensee coordinator (DLC) to represent interests of digital music providers who use the blanket license, as well as fully implementing the MMA’s provisions regarding pre-1972 sound recordings under a separate provision of the law.
The MMA asks the Office to adopt additional rules concerning the operation of the new blanket license to clarify expectations for the MLC, digital music providers, and the songwriters and music publishers who are entitled to accurate payment for use of their songs. Last fall, the Office received a number of comments in response to a public notice on these topics. Today, the Office published four notices in the Federal Register, soliciting additional comment on areas where the Office is considering adopting rules. Together, these notices cover the following areas:
- Reporting obligations to the MLC by digital music providers and others, and related reporting obligations from the MLC to copyright owners.
- Proposed rules regarding reporting obligations between interactive streaming services and other licensees to the MLC, as well as efforts by copyright owners to deliver information to the MLC. Specifically, this notice addresses notices of license, data collection efforts, reports of usage and payment by digital music provider blanket licensees (DMPs) and related records of use, notices of nonblanket activity and reports of usage by significant nonblanket licensees, and data collection efforts by musical work copyright owners. Written comments are due by May 22, 2020, at 11:59 p.m. eastern time.
- Proposed rule regarding the obligations of the MLC to report and distribute royalties paid by digital music providers under the blanket license to musical work copyright owners. Written comments are due by May 22, 2020, at 11:59 p.m. eastern time.
- Appropriately balancing the need to protect confidential information while fostering public access to music licensing data and improving transparency for copyright owners and others.
- Proposed rule regarding the protection of confidential information by the MLC and DLC. Written comments are due by June 6, 2020, at 11:59 p.m. eastern time.
- A notification of inquiry related to the contents of the collective’s public musical work database, database access, and database use, as well as other considerations related to appropriate transparency and disclosures of the MLC. Written comments are due by June 6, 2020, at 11:59 p.m. eastern time.
Something to Talk About: Copyright Office Requests Your Feedback
For three of the notices above, the Office has issued a “notice of proposed rulemaking,” which includes draft regulatory language for the public to consider, before the next step of adopting a rule. For the fourth, concerning the new public database and other avenues for public disclosure by the MLC, the Office has issued a “notification of inquiry,” opening up a period for additional comments by the public before we propose draft regulatory language.
For all, we welcome your comments. Our team is trying hard in these times to thoughtfully propel our regulatory work to enable the MLC, along with digital music providers, songwriters, music publishers, and other stakeholders to be ready for the upcoming license availability date. In the coming months, we will look to advance these rulemakings, and consider whether additional activities are needed and appropriate.
Who’s Zoomin’ Who? Education and Outreach Efforts Continue
Meanwhile, we are focusing our education efforts on digital outreach. As announced last week, the Copyright Office has added a webpage providing video and print materials to inform songwriters, music publishers, and others about these important changes to the law. These materials may be freely shared, and we are continuing to build out materials to communicate new developments and reach new audiences. Music licensing is complicated, and the discussion is not one-size-fits-all.
As the federal agency for creativity, we are also getting creative with online outreach. In the next months, expect to see more digital initiatives from us. If you have ideas, please get in touch by emailing us at [email protected] with the subject line “MMA Outreach.” And be sure to stay up-to-date on the MMA by subscribing to our newsletter.
Paid in Full: Looking Ahead with the Unclaimed Royalties Policy Study
The MLC is expected to improve the mechanical licensing and royalty payment system for music creators. One important project will be identifying and locating copyright owners who are entitled to royalties under the new blanket license. While the new collective has unique features, the practices of other collectives or industry customs (here and internationally) may be helpful to inform its efforts.
The MMA asks the Copyright Office to conduct a policy study recommending best practices for the MLC to consider in addressing unclaimed, accrued royalties, and to deliver this study to Congress by July 2021. On December 6, 2019, we kicked off the study with an all-day symposium to discuss some of the background issues to the MLC’s project. Videos of the panel sessions and educational materials from the event are available here.
As next steps, we will be moving forward with a notice of inquiry asking for written comments. Later on, we will explore public roundtables, a typical feature of our public policy studies, whether in person or virtually.
So stay tuned!
Want more info? Check out our page on the Music Modernization Act for educational materials, the history of this important law, and more.
Should I wait for the new system to be in operation
before I send in any works for copyright? Do I have to join the MLC?
Great question! We want to make sure you know that copyright registration and registering your work with the MLC are not the same thing. If you are a musical work owner (e.g., a self-administered songwriter or a music publisher) , the MLC has some tips on what you should do now, before their claiming portal is up and running: https://themlc.com/preparing-2021.
Registering your work for copyright protection with the Copyright Office has its own separate, but important, benefits. These include the ability to bring a lawsuit and be awarded statutory damages and attorneys’ fees. For more information, check out our blog — The Breakdown: What Songwriters Need to Know about the Music Modernization Act and Royalty Payments and Circular 1: Copyright Basics (under Benefits of Registration).