Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 84243 

1Public Law 115–264, 132 Stat. 3676 (2018). 

2As permitted under the MMA, the Office 

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

represent licensees in proceedings before the 

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

to serve as a non-voting member of the MLC, and 

to carry out other functions. 17 U.S.C. 115(d)(5)(B); 

84 FR 32274 (July 8, 2019); see also 17 U.S.C. 

115(d)(3)(D)(i)(IV), (d)(5)(C). 

3 85 FR 58114 (Sept. 17, 2020). 

4 37 CFR 210.24(b)(8), 210.25(b)(6), 210.27(c)(5), 

210.28(c)(5). 

5 84 FR 49966 (Sept. 24, 2019). 

6 85 FR 22518 (Apr. 22, 2020). 

7 Guidelines for ex parte communications, along 

with records of such communications, including 

those referenced herein, are available at https://

www.copyright.gov/rulemaking/mmaimplementation/ex-parte-communications.html. All 

rulemaking activity, including public comments, as 

well as educational material regarding the Music 

Modernization Act, can currently be accessed via 

navigation from https://www.copyright.gov/musicmodernization/. 

8See DLC Ex Parte Letter Nov. 10, 2020 at 4–7. 

Marine Corps Reserve: Director, Marine 

Corps Individual Reserve Support Activity 

(MCIRSA), 2000 Opelousas Ave., New 

Orleans, LA 70114, https://

www.marforres.marines.mil/MajorSubordinate-Commands/ForceHeadquarters-Group/Marine-CorpsIndividual-Reserve-Support-Activity/ 

Air Force Reserve: Commander, Air Reserve 

Personnel Center/DPAM, 18420 E. Silver 

Creek Ave., Bldg. 390, MS 68, Buckley 

AFB, CO 80011, https://

www.arpc.afrc.af.mil/ 

Coast Guard Reserve: Commander (PSC– 

RPM), U. S. Coast Guard Personnel Service 

Center, 2703 Martin Luther King Jr Ave. 

SE, Stop 7200, Washington, DC 20593– 

7200, https://www.dcms.uscg.mil/OurOrganization/Assistant-Commandant-forHuman-Resources-CG–1/PersonnelService-Center-PSC/Reserve-PersonnelManagement-PSC–RPM/ 

Army and Air National Guard: Submit 

petitions to the Adjutant General of the 

appropriate State, Territory, or the District 

of Columbia. 

Dated: December 21, 2020. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2020–28646 Filed 12–22–20; 4:15 pm] 

BILLING CODE 5001–06–P 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

37 CFR Part 210 

[Docket No. 2020–5] 

Music Modernization Act Notices of 

License, Notices of Nonblanket 

Activity, Data Collection and Delivery 

Efforts, and Reports of Usage and 

Payment 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Supplemental interim rule with 

request for comments. 

SUMMARY: The U.S. Copyright Office is 

amending its regulations governing 

certain reporting requirements of digital 

music providers and significant 

nonblanket licensees pursuant to title I 

of the Orrin G. Hatch-Bob Goodlatte 

Music Modernization Act. This 

amendment will create a temporary 

exception to certain provisions 

concerning the reporting of information 

about permanent download passthrough licenses in light of recent 

requests that an accommodation to 

current reporting rules be made to avoid 

potential market disruption. Based on 

these requests received following the 

adoption of the current requirements, 

the Copyright Office has determined 

that there is a legitimate need to make 

this amendment effective immediately 

to govern these matters while it 

considers further potential adjustments. 

The Copyright Office solicits public 

comment on how, or whether, it should 

further adjust these particular reporting 

requirements. 

DATES: The supplemental interim rule is 

effective December 28, 2020. Written 

comments must be received no later 

than 11:59 p.m. Eastern Time on 

January 27, 2021. 

ADDRESSES: For reasons of Government 

efficiency, the Copyright Office is using 

the regulations.gov system for the 

submission and posting of public 

comments in this proceeding. All 

comments are therefore to be submitted 

electronically through regulations.gov. 

Specific instructions for submitting 

comments are available on the 

Copyright Office’s website at https://

www.copyright.gov/rulemaking/mmanotices-reports/. If electronic 

submission of comments is not feasible 

due to lack of access to a computer and/ 

or the internet, please contact the 

Copyright Office using the contact 

information below for special 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Regan A. Smith, General Counsel and 

Associate Register of Copyrights, by 

email at regans@copyright.gov, Jason E. 

Sloan, Assistant General Counsel, by 

email at jslo@copyright.gov, or 

Cassandra G. Sciortino, AttorneyAdvisor, by email at csciortino@

copyright.gov. Each can be contacted by 

telephone by calling (202) 707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 11, 2018, the President 

signed into law the Orrin G. Hatch-Bob 

Goodlatte Music Modernization Act 

(‘‘MMA’’) which, among other things, 

substantially modifies the compulsory 

‘‘mechanical’’ license for making and 

distributing phonorecords of 

nondramatic musical works under 17 

U.S.C. 115.1 It does so by switching 

from a song-by-song licensing system to 

a blanket licensing regime that will 

become available on January 1, 2021 

(the ‘‘license availability date’’), and 

will be administered by a mechanical 

licensing collective (‘‘MLC’’) designated 

by the Copyright Office (the ‘‘Office’’). 

Digital music providers (‘‘DMPs’’) will 

be able to obtain the new compulsory 

blanket license to make digital 

phonorecord deliveries (‘‘DPDs’’) of 

musical works, including in the form of 

permanent downloads, limited 

downloads, or interactive streams 

(referred to in the statute as ‘‘covered 

activity’’ where such activity qualifies 

for a compulsory license), subject to 

compliance with various requirements, 

including reporting obligations.2 DMPs 

may also continue to engage in those 

activities solely through voluntary, or 

direct, licensing with copyright owners, 

in which case the DMP may be 

considered a significant nonblanket 

licensee (‘‘SNBL’’) under the statute, 

subject to separate reporting obligations. 

On September 17, 2020, the Office 

issued an interim rule adopting 

regulations concerning certain types of 

reporting required under the statute 

after the license availability date: 

Notices of license and reports of usage 

by DMPs, and notices of nonblanket 

activity and reports of usage by SNBLs.3

Those interim regulations include 

requirements to report certain 

information about certain permanent 

download licenses.4 They were adopted 

to help ensure that the MLC receives 

sufficient information to be able to 

fulfill its statutory obligations, including 

under section 115(d)(3)(G)(i)(I)(bb), and 

to effectuate the reporting requirements 

of section 115(d)(4)(A)(ii)(II). The Office 

assumes familiarity with the interim 

rule and all related Federal Register 

documents. 

After the adoption of these rules, 

which involved multiple rounds of 

public comments through a notification 

of inquiry,5 notice of proposed 

rulemaking,6 and an ex parte 

communications process,7 the DLC 

raised a new concern with respect to the 

applicability of these particular 

reporting provisions to ‘‘pass-through’’ 

licenses for permanent downloads.8 The 

DLC explained that ‘‘all [DMPs 

operating] download stores operate 

exclusively under so-called ‘passthrough’ licenses received from record 

labels, where the label obtains the 


tkelley on DSKBCP9HB2PROD with RULES
84244 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

9 Id. at 4. 

10See H.R. Rep. No. 115–651, at 4 (2018) 

(‘‘Subsection (b)(3) maintains the ‘pass-through’ 

license for record labels to obtain and pass through 

mechanical license rights for individual permanent 

downloads. Under the Music Modernization Act, a 

record label will no longer be eligible to obtain and 

pass through a Section 115 license to a digital 

music provider to engage in activities related to 

interactive streams or limited downloads.’’); S. Rep. 

No. 115–339, at 4 (2018); Report and Section-bySection Analysis of H.R. 1551 by the Chairmen and 

Ranking Members of Senate and House Judiciary 

Committees, at 3 (2018), https://www.copyright.gov/ 

legislation/_conference_report.pdf; U.S. Copyright 

Office, Copyright and the Music Marketplace at 27– 

28 (2015), https://www.copyright.gov/policy/ 

musiclicensingstudy/copyright-and-the-musicmarketplace.pdf (describing previous pass-through 

licensing practices). 

11 17 U.S.C. 115(e)(12). 

12See id. at 115(d)(9)(C). 

13 DLC Ex Parte Letter Nov. 10, 2020 at 4–6. 

14 Id. at 5–6. 

15 DLC & MLC Ex Parte Letter Dec. 9, 2020 at 4, 

add. B. 

16 Id. at 4. 

17Because of the short amount of time remaining 

before the January 1, 2021 license availability date, 

the Office finds there is good cause to adopt the 

temporary supplemental interim rule without 

public notice and comment, and to make it effective 

immediately upon publication. See 5 U.S.C. 

553(b)(3)(B), (d)(3); see also DLC & MLC Ex Parte 

Letter Dec. 9, 2020 at 4 (supporting adoption of a 

temporary rule while the Office further considers 

this issue and agreeing that ‘‘allowing the existing 

rules to go into effect without alteration would 

cause market disruption for permanent download 

offerings’’). 

18 DLC & MLC Ex Parte Letter Dec. 9, 2020 at 4. 

19 DLC Ex Parte Letter Nov. 10, 2020 at 6–7. 

20A ‘‘voluntary license’’ is a defined term under 

17 U.S.C. 115(e)(36). 

mechanical licenses from musical work 

copyright owners and then authorizes 

downstream distributors to make and 

distribute permanent downloads.’’ 9 The 

Office notes that this reflects that the 

scope of ‘‘pass-through’’ licensing under 

section 115 shrank under the MMA, 

which eliminated the ability of record 

labels to ‘‘pass-through’’ section 115 

licenses for streaming or limited 

downloads.10

The underlying mechanical license 

pursuant to which the DMP has been 

given authority for permanent 

downloads by a record label can be a 

compulsory license or a voluntary 

license. Under the MMA, the 

compulsory version is defined as an 

‘‘individual download license,’’ which 

is ‘‘a compulsory license obtained by a 

record company to make and distribute, 

or authorize the making and distribution 

of, permanent downloads embodying a 

specific individual musical work.’’ 11

The non-compulsory version (a 

‘‘voluntary pass-through license’’) does 

not appear to be directly addressed by 

the MMA, but in general the MMA 

provides for preexisting voluntary 

licenses to remain in effect after the 

license availability date.12

The DLC raised the concern that the 

relevant reporting requirements set forth 

in the interim regulations require DMPs 

and SNBLs operating under the 

authority of pass-through licenses to 

report certain information about such 

licenses, including identification and 

contact information for relevant musical 

work copyright owners that they do not 

have.13 The DLC stated that: 

This information is not provided by record 

labels to download stores through existing 

reporting mechanisms . . . and for this to 

occur would require record labels and digital 

music providers to invest resources to build 

entirely new systems. The reality is that 

services are not likely to make those 

investments, especially because purchases of 

permanent downloads, while still significant, 

are declining. It is far more likely that 

download stores would simply cease 

operations.14

The DLC submitted proposed 

regulatory amendments to address their 

concerns, which the MLC does not 

object to.15 The MLC and DLC are in 

agreement that ‘‘allowing the existing 

rules to go into effect without alteration 

would cause market disruption for 

permanent download offerings.’’ 16 The 

DLC’s proposal is available in 

Addendum B of the ex parte letter 

available at: https://www.copyright.gov/ 

rulemaking/mma-implementation/exparte/mlc-and-dlc.pdf. 

II. Supplemental Interim Rule and 

Request for Comments 

The Office tentatively agrees that this 

issue needs to be addressed and is 

therefore noticing the matter for public 

comment. In the meantime, the Office 

finds it necessary and appropriate under 

its authority pursuant to 17 U.S.C. 115 

and 702 to adjust the interim rule, 

effective immediately, to prevent 

potential market disruption that the 

MLC and DLC are concerned about 

occurring while the Office solicits 

comments and continues to consider 

how best to proceed with respect to this 

issue.17 The supplemental interim rule 

creates a temporary exception to the 

previously adopted reporting 

requirements with respect to individual 

download licenses and voluntary passthrough licenses, such that the failure to 

report that particular information will 

not otherwise impact a DMP’s or SNBL’s 

compliance with their various 

requirements under the MMA and the 

Office’s related regulations (e.g., the 

MLC cannot use the failure to provide 

that particular information as a basis to 

reject an otherwise compliant notice of 

license or serve a notice of default on an 

otherwise compliant blanket licensee). 

The supplemental interim rule further 

provides that after the temporary 

exception is no longer in effect, the MLC 

can take action against a DMP or SNBL 

who benefitted from the exception if 

any amended reporting requirements 

adopted by the Office are not complied 

with by the DMP or SNBL within 45 

days after the effective date of such an 

amendment (or an alternate date 

subsequently adopted by the Office, 

whichever is later). The MLC and DLC 

indicated that they respectively do not 

oppose the Office employing this 

approach while considering this 

matter.18

With respect to the DLC’s concerns, 

the Office solicits comments on the 

DLC’s proposal. As the Office 

understands it, the proposal would 

basically exempt individual download 

licenses and voluntary pass-through 

licenses from the relevant reporting 

requirements under the interim 

regulations, and would instead impose 

alternative requirements that the DLC 

views as more appropriate but that still 

ensure that the MLC has sufficient 

information to fulfill its statutory duties. 

In particular, the Office seeks comments 

regarding its authority to adopt the 

DLC’s proposal in light of 17 U.S.C. 

115(d)(4)(A)(ii)(II), which requires 

DMPs to ‘‘identify and provide contact 

information for all musical work 

copyright owners for works embodied in 

sound recordings as to which a 

voluntary license, rather than the 

blanket license, is in effect with respect 

to the uses being reported.’’ While the 

DLC argues that the statute is ‘‘at least 

. . . ambiguous’’ and that the Office can 

‘‘exercise its general regulatory 

authority to clarify this issue,’’ 19 the 

Office is cautious about potentially 

concluding that the term ‘‘voluntary 

license’’ in that provision excludes 

voluntary pass-through licenses, and 

thus seeks further comments to aid its 

statutory analysis.20 Relatedly, the 

Office seeks comments as to whether 

there are any concerns, as a matter of 

statutory interpretation, with 

interpreting the term ‘‘voluntary 

license’’ in section 115(d)(4)(A)(ii)(II) in 

the manner the DLC requests while 

reading the same term more broadly 

elsewhere in section 115, such as in the 

introductory paragraph of section 

115(d)(4)(A)(ii). 

The Office seeks clarification from the 

MLC and DLC, and comments from 

other interested stakeholders, regarding 

their proposed inclusion of language 

seeming to qualify the proposed 

exceptions to ‘‘where [the DMP’s] 

authority applies to the exclusion of the 

blanket license authority pursuant to 17 


tkelley on DSKBCP9HB2PROD with RULES
Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 84245 

21See DLC & MLC Ex Parte Letter Dec. 9, 2020 

add. B at 2, 3, 10. 

22 17 U.S.C. 115(d)(1)(C). 

U.S.C. 115(d)(1)(C)(i).’’ 21 This proposed 

language seems to suggest that the DLC 

and MLC believe there are types of 

voluntary licenses, authorizing DMPs to 

make and distribute permanent 

downloads, that would not apply to the 

exclusion of the blanket license. It is not 

entirely clear to the Office what is 

meant by this aspect of the proposal, but 

the Office observes that section 

115(d)(1)(C) says ‘‘[a] voluntary license 

for covered activities entered into by or 

under the authority of 1 or more 

copyright owners and 1 or more digital 

music providers, or authority to make 

and distribute permanent downloads of 

a musical work obtained by a digital 

music provider from a sound recording 

copyright owner pursuant to an 

individual download license, shall be 

given effect in lieu of a blanket license 

under this subsection with respect to 

the musical works (or shares thereof) 

covered by such voluntary license or 

individual download authority.’’ 22

Beyond the DLC’s proposal, the Office 

invites comments more generally on 

how to address, or whether the Office 

should address, the pass-through license 

issue that has been raised, including 

whether a different approach should be 

taken. One potential alternative 

approach the Office seeks comment on 

could be for the Office to adopt a rule 

providing that any failure to comply 

with the previously adopted reporting 

requirements in 37 CFR 210.24(b)(8), 

210.25(b)(6), 210.27(c)(5), or 

210.28(c)(5) with respect to individual 

download licenses or voluntary passthrough licenses may not be construed 

as material noncompliance with the 

statute or regulations, but rather would 

be considered to be harmless errors, if 

appropriate alternative information— 

perhaps the information the DLC 

proposed—is timely reported instead. 

This would mean that in such cases, the 

harmless error provisions in place for 

notices of license (§ 210.24(e)), notices 

of nonblanket activity (§ 210.25(e)), and 

SNBL-submitted reports of usage 

(§ 210.28(k)) would apply to protect the 

DMP or SNBL; the statutory default 

provision in 17 U.S.C. 115(d)(4)(E)(i)(III) 

would similarly protect a DMP from 

being in default under the blanket 

license with respect to its reports of 

usage. 

List of Subjects in 37 CFR Part 210 

Copyright, Phonorecords, Recordings. 

Interim Regulations 

For the reasons set forth in the 

preamble, the Copyright Office amends 

37 CFR part 210 as follows: 

PART 210—COMPULSORY LICENSE 

FOR MAKING AND DISTRIBUTING 

PHYSICAL AND DIGITAL 

PHONORECORDS OF NONDRAMATIC 

MUSICAL WORKS 

■ 1. The authority citation for part 210 

continues to read as follows: 

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

■ 2. Add § 210.30 to read as follows: 

§ 210.30 Temporary exception to certain 

reporting requirements about certain 

permanent download licenses. 

(a) Subject to paragraph (b) of this 

section, where a requirement of 

§ 210.24(b)(8), § 210.25(b)(6), 

§ 210.27(c)(5), or § 210.28(c)(5) has not 

been satisfied with respect to an 

individual download license or 

voluntary pass-through license, such 

failure shall not: 

(1) Render an otherwise compliant 

notice of license, notice of nonblanket 

activity, or report of usage invalid; or 

(2) Provide a basis for the mechanical 

licensing collective to reject an 

otherwise compliant notice of license, 

serve a notice of default on an otherwise 

compliant blanket licensee, terminate an 

otherwise compliant blanket license, or 

engage in legal enforcement efforts 

against an otherwise compliant 

significant nonblanket licensee. 

Note 1 to paragraph (a): Paragraph (a) 

of this section is a transitional exception 

that shall cease to apply in accordance 

with such further regulations as the 

Copyright Office may adopt. 

(b) After paragraph (a) of this section 

is no longer applicable, the mechanical 

licensing collective may take such 

action(s) against a beneficiary of 

paragraph (a) of this section as had been 

prohibited by paragraph (a) when it was 

applicable, if an amendment adopted by 

the Copyright Office to a requirement of 

§ 210.24(b)(8), § 210.25(b)(6), 

§ 210.27(c)(5), or § 210.28(c)(5) with 

respect to individual download licenses 

or voluntary pass-through licenses is not 

complied with by such a beneficiary 

within 45 calendar days after the 

effective date of such an amendment, or 

an alternate date subsequently adopted 

by the Office, whichever is later. Any 

deadline otherwise applicable to any 

such action by the mechanical licensing 

collective shall be tolled with respect to 

a beneficiary of paragraph (a) of this 

section until the conclusion of such 45- 

day or alternate period. 

(c) For purposes of this section, a 

voluntary pass-through license is a 

voluntary license obtained by a licensor 

of sound recordings to make and 

distribute, or authorize the making and 

distribution of, permanent downloads 

embodying musical works through 

which a digital music provider or 

significant nonblanket licensee has 

obtained authority from such licensor of 

sound recordings to make and distribute 

permanent downloads of musical works 

embodied in such sound recordings. 

Dated: December 16, 2020. 

Shira Perlmutter, 

Register of Copyrights and Director of the 

U.S. Copyright Office. 

Approved by: 

Carla D. Hayden, 

Librarian of Congress. 

[FR Doc. 2020–28505 Filed 12–23–20; 8:45 am] 

BILLING CODE 1410–30–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AP46 

Prosthetic and Rehabilitative Items and 

Services 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This rulemaking adopts as 

final, with changes, proposed 

amendments to VA’s regulations 

governing the provision of prosthetic 

and rehabilitative items and services as 

medical services to veterans. This 

rulemaking establishes a new section for 

the provision of prosthetic and 

rehabilitative items and services, 

clarifies eligibility for such items and 

services, and defines the types of 

prosthetic and rehabilitative items and 

services available to eligible veterans. 

DATES: This rule is effective on January 

27, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Penny Nechanicky, National Program 

Director for Prosthetic and Sensory Aids 

Service (10P4RK), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW, Washington, DC 20420; 

penny.nechanicky@va.gov; (202) 461– 

0337. (This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: 

Background 

On October 16, 2017, VA published a 

proposed rule in the Federal Register 

(82 FR 48018) to revise VA’s regulations 

governing the provision of prosthetic 

and rehabilitative items and services to 

eligible veterans. The proposed rule set 

forth revisions to reorganize and update 


tkelley on DSKBCP9HB2PROD with RULES