12822 Federal Register / Vol. 86, No. 42 / Friday, March 5, 2021 / Rules and Regulations 

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

Okeechobee Waterway, mile 28.2, at 

Indiantown, Florida. The bridge owner 

requested to start the three hour 

advance notice for an opening earlier 

each evening and end it one hour later 

each morning. This deviation will test a 

change to the drawbridge operation 

schedule to determine whether a 

permanent change to the schedule is 

needed. The Coast Guard is seeking 

comments from the public regarding 

these proposed changes. 

DATES: This deviation is effective 

without actual notice from March 5, 

2021 through 11:59 p.m. on August 27, 

2021. For the purposes of enforcement, 

actual notice will be used from 1 a.m. 

on March 1, 2021 until March 5, 2021. 

Comments and related material must 

reach the Coast Guard on or before April 

29, 2021. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2021–0099 using Federal eRulemaking 

Portal at https://www.regulations.gov. 

See the ‘‘Public Participation and 

Request for Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this test 

deviation, call or email L.T. Samuel 

Rodriguez-Gonzalez, U.S. Coast Guard, 

Sector Miami Waterways Management 

Division; telephone 305–535–4307, 

email Samuel.Rodriguez-Gonzalez@

uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Background, Purpose, and Legal 

Basis 

The Seaboard System Railroad Bridge 

across the Okeechobee Waterway, mile 

28.2, at Indiantown, Florida is a swing 

bridge with a seven foot vertical 

clearance at mean high water in the 

closed position. The normal operating 

schedule for the bridge is set forth in 33 

CFR 117.317(e). Navigation on the 

waterway is commercial and 

recreational. 

The bridge owner, CSX 

Transportation, requested that vessels 

provide a three hour advance 

notification for a bridge opening during 

the evening and overnight hours. The 

three hour advance notification would 

align with the operating schedule of the 

U.S. Army Corps of Engineers (USACE) 

Locks along this portion of the 

Okeechobee Waterway. After reviewing 

the draw tender logs, the Coast Guard 

determined that allowing the bridge to 

change the start and end times for the 

advance notice may meet the reasonable 

needs of navigation. 

Under this test deviation, the draw 

shall open on signal, except that from 7 

p.m. to 7 a.m. the draw shall open if at 

least a three hour advance notice is 

given. Advance openings can be 

arranged by contacting CSX 

Transportation at 1–850–209–9528. 

The Coast Guard will also inform the 

users of the waterways through our 

Local and Broadcast Notices to Mariners 

of the change in operating schedule for 

the bridge so that vessel operators can 

arrange their transits to minimize any 

impact caused by the temporary 

deviation. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the effective period of this 

temporary deviation. This deviation 

from the operating regulations is 

authorized under 33 CFR 117.35. 

II. Public Participation and Request for 

Comments 

We view public participation as 

essential to effective rulemaking, and 

will consider all comments and material 

received during the comment period. 

Your comment can help shape the 

outcome of this rulemaking. If you 

submit a comment, please include the 

docket number for this rulemaking, 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. 

We encourage you to submit 

comments through the Federal 

eRulemaking Portal at https://

www.regulations.gov. If your material 

cannot be submitted using https://

www.regulations.gov, contact the person 

in the FOR FURTHER INFORMATION

CONTACT section of this document for 

alternate instructions. 

We accept anonymous comments. All 

comments received will be posted 

without change to https://

www.regulations.gov and will include 

any personal information you have 

provided. For more about privacy and 

submissions in response to this 

document, see DHS’s eRulemaking 

System of Records notice (85 FR 14226, 

March 11, 2020). 

Documents mentioned in this test 

deviation as being available in this 

docket and all public comments, will be 

in our online docket at https://

www.regulations.gov and can be viewed 

by following that website’s instructions. 

Additionally, if you go to the online 

docket and sign up for email alerts, you 

will be notified when comments are 

posted or a final rule is published. 

Dated: February 25, 2021. 

Randall D. Overton, 

Director, Bridge Administration, Seventh 

Coast Guard District. 

[FR Doc. 2021–04552 Filed 3–4–21; 8:45 am] 

BILLING CODE 9110–04–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. 

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 adjusts provisions 

concerning the reporting of information 

about permanent download passthrough licenses in light of recent 

requests for accommodations to avoid 

potential market disruption. 

DATES: Effective April 5, 2021. 

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 at (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 became 

available on January 1, 2021 (the 

‘‘license availability date’’), 

administered by a mechanical licensing 


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Federal Register / Vol. 86, No. 42 / Friday, March 5, 2021 / Rules and Regulations 12823 

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 at 4–7 (Nov. 10, 2020). 

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/mma/_conference_report.pdf 

(‘‘Conf.Rep.’’); U.S. Copyright Office, Copyright and 

the Music Marketplace at 27–28 (2015), https://

www.copyright.gov/policy/musiclicensingstudy/ 

copyright-and-the-music-marketplace.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 at 4–6 (Nov. 10, 2020). 

14 Id. at 5–6. 

15 DLC & MLC Ex Parte Letter at 4, add. B (Dec. 

9, 2020). 

16 Id. at 4. 

17 85 FR 84243 (Dec. 28, 2020). 

collective (‘‘MLC’’) designated by the 

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

music providers (‘‘DMPs’’) are 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 

(the ‘‘September 2020 rule’’).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). 

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 

mechanical licenses from musical work 

copyright owners and then authorizes 

downstream distributors to make and 

distribute permanent downloads.’’ 9 The 

Office notes that this focus on 

permanent downloads reflects that the 

scope of ‘‘pass-through’’ licensing under 

section 115 was diminished 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 

either compulsory or voluntary. 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 noncompulsory version (a ‘‘voluntary passthrough 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 blanket license 

availability date.12

The DLC raised the concern that the 

relevant reporting requirements set forth 

in the September 2020 rule 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, 

to which the MLC did not object.15 The 

MLC and DLC agreed that ‘‘allowing the 

existing rules to go into effect without 

alteration would cause market 

disruption for permanent download 

offerings.’’ 16

In response, on December 28, 2020, 

the Office issued a supplemental 

interim rule with request for comments 

(the ‘‘December 2020 rule’’).17 In the 

December 2020 rule, the Office 

tentatively agreed that the issue needed 

to be addressed and noticed the matter 

for public comment. It adjusted the 

September 2020 rule, effective 

immediately, to prevent the potential 

market disruption that the MLC and 

DLC were concerned about while the 

Office solicited comments and 

continued to consider how best to 

proceed with respect to the issue. 

Specifically, the December 2020 rule 

created 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 information about these licenses 

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 December 2020 rule further 

provided 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 their effective date (or an 

alternate date subsequently adopted by 


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

19See DLC Supplemental Interim Rule Comment 

at 1–4; MLC Supplemental Interim Rule Comment 

at 2–4; ARM Supplemental Interim Rule Comment 

at 1–3. 

20See 17 U.S.C. 702, 115(d)(4)(A)(ii)(III), 

115(d)(12)(A); see also H.R. Rep. No. 115–651, at 

5–6, 14; S. Rep. No. 115–339, at 5, 15; Conf. Rep. 

at 4, 12; Nat’l Cable & Telecomms. Ass’n v. Brand 

X internet Servs., 545 U.S. 967, 980 (2005). 

21 DLC Supplemental Interim Rule Comment at 1; 

see ARM Supplemental Interim Rule Comment at 

2 n.1 (‘‘Under this arrangement, it is the record 

labels—not the download stores—that are 

responsible for providing reports of use to the 

musical work copyright owners.’’). 

22ARM Supplemental Interim Rule Comment at 

1. 

23 Id. at 2 (quoting DLC & MLC Ex Parte Letter 

at 4 (Dec. 9, 2020)). 

24MLC Supplemental Interim Rule Comment at 2. 

25 37 CFR 210.24(b)(8), 210.25(b)(6), 210.27(c)(5), 

210.28(c)(5). 

26 DLC & MLC Ex Parte Letter at 4, add. B at 

2–4, 7, 10, 28–29 (Dec. 9, 2020); see DLC 

Supplemental Interim Rule Comment at 1; MLC 

Supplemental Interim Rule Comment at 2 (stating 

that this would ‘‘continue the industry practice of 

identifying pass-through licenses by reference to the 

sound recordings’’). 

27MLC Supplemental Interim Rule Comment at 3. 

28 85 FR at 84244. 

29 Id. 

the Office, whichever is later). The MLC 

and DLC indicated that neither of them 

opposed the Office employing this 

approach.18

With respect to the DLC’s concerns, 

the Office solicited comments on the 

DLC’s proposal, which would exempt 

individual download licenses and 

voluntary pass-through licenses from 

the relevant reporting requirements 

under the September 2020 rule, and 

would instead impose alternative 

requirements that the DLC views as 

more appropriate and feasible for DMPs 

to comply with in light of the 

information they typically receive from 

record labels, but that still ensure that 

the MLC has sufficient information to 

fulfill its statutory duties. The Office 

specifically sought comments regarding 

its authority to adopt the DLC’s 

proposal, and invited comments more 

generally on how to address, or whether 

the Office should address, the passthrough license issue, including 

whether a different approach should be 

taken. 

The Office received responsive 

comments from the DLC, MLC, and the 

Alliance for Recorded Music (‘‘ARM’’), 

all agreeing that the issue should be 

addressed, that the DLC’s proposed 

solution should be adopted, and that the 

Office has the authority to do so.19

Having reviewed and considered all 

relevant comments in the record, the 

Office concludes that it is necessary and 

appropriate under its authority pursuant 

to 17 U.S.C. 115 and 702 to further 

adjust the current interim rule to 

address the concerns that have been 

raised.20 The Office further finds the 

DLC’s unopposed proposal to be a 

reasonable approach that is within the 

Office’s authority to adopt; thus, it is 

being implemented with only minor 

modifications, discussed below. 

II. Supplemental Interim Rule 

The DLC’s comments reiterate the 

concerns it previously raised: 

The existing reporting regulations require 

permanent download services operating 

under the authority of ‘voluntary passthrough licenses’ to report information that 

they do not know—in particular, the identity 

and contact information for copyright owners 

of the musical works embodied in sound 

recordings. That is because musical work 

copyright owners issue voluntary passthrough licenses not to digital services, but 

to record labels, on the understanding that 

they will pass through the authority to make 

and distribute permanent downloads to 

downstream services. Record labels do pass 

on this authority but do not today report such 

identity and contact information to services 

through existing data feeds. Given that 

permanent downloads represent a 

diminishing (even if still significant) share of 

the market, labels and services will probably 

not invest in those reporting systems.21

ARM confirms that ‘‘[d]ownload 

stores . . . are still a significant 

contributor to the recorded music 

industry’s revenues,’’ contributing 

‘‘nearly $1 billion (i.e., $856 million) in 

annual revenues’’ as of 2019.22 ARM 

seconds the DLC’s assertions that 

‘‘[a]bsent a change in the interim rule to 

address this problem, ‘download stores 

would simply cease operations’ rather 

than investing the resources to build 

entirely new systems to collect and 

report the necessary information,’’ 

adding that ‘‘[g]iven the revenue figures 

cited above, any such decision by the 

operators of download stores would be 

extremely damaging to artists and labels 

alike.’’ 23 The MLC also ‘‘understands 

that the market for permanent 

downloads faces significant disruption 

if DMPs operating download stores 

under pass-through mechanical licenses 

are required to identify and provide 

contact information for each respective 

musical work copyright owner in order 

to have those pass-through licenses 

recognized by the MLC and carved out 

from the blanket license.’’ 24 The Office 

agrees that the relevant reporting 

requirements adopted by the September 

2020 rule should be adjusted in light of 

this additional information to avoid any 

such potential harm or disruption to the 

permanent download market, especially 

given that the MLC does not object that 

doing so may impede its ability to 

properly administer the blanket license. 

The September 2020 rule required 

DMPs and SNBLs to report certain 

information about applicable voluntary 

licenses and individual download 

licenses, including the identity and 

contact information for the musical 

work copyright owners for works 

subject to such licenses.25 The DLC’s 

proposed solution is to exempt passthrough licenses—both individual 

download licenses and voluntary passthrough licenses—from these reporting 

requirements, and instead impose 

alternative reporting requirements 

pursuant to which DMPs and SNBLs 

must either indicate reliance on passthrough licenses for all of their 

permanent downloads or provide a list 

of all sound recordings covered by passthrough licenses, or provide a list of any 

applicable catalog exclusions where it is 

indicated that authority otherwise exists 

for all permanent downloads.26 The 

MLC does not oppose this proposal and 

states that ‘‘[w]ith respect to the 

practical viability of the DLC Proposal, 

the MLC believes that it can effectively 

and efficiently administer the blanket 

license with the reporting adjustments 

in the proposal.’’ 27

This proposal strikes the Office as 

reasonable in light of the concerns 

raised following the adoption of the 

September 2020 rule and the MLC’s 

statements that the proposed alternative 

information to be reported will be 

sufficient for it to effectively and 

efficiently administer the blanket 

license. The remaining question is 

whether the Office has the authority 

under the MMA to adopt the proposal. 

In the notice soliciting comments that 

accompanied the December 2020 rule, 

the Office said that 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.’’ 28

The Office said that 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,’’ 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.29 The Office said that 

relatedly, it seeks comments as to 

whether there are any concerns, as a 

matter of statutory interpretation, with 


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Federal Register / Vol. 86, No. 42 / Friday, March 5, 2021 / Rules and Regulations 12825 

30 Id. 

31 DLC Supplemental Interim Rule Comment at 

2–4; ARM Supplemental Interim Rule Comment at 

2–3. 

32While the first two provisions expressly refer 

to both voluntary licenses and individual download 

licenses, the third does not explicitly refer to either, 

and the fourth only mentions voluntary licenses. 

33 17 U.S.C. 115(d)(3)(G)(i)(I)(bb) (emphasis 

added). 

34 Id. at 115(d)(4)(A)(ii) (emphasis added). 

35 Id. at 115(d)(4)(A)(ii)(II). 

36See id. at 115(d)(4)(A)(ii)(III). 

37 DLC Ex Parte Letter at 5 (Nov. 10, 2020) 

(‘‘[D]ownload stores are not even aware when a 

label is relying on a compulsory license and when 

it is relying on a voluntary variant thereof. Nor have 

they ever received contact information for musical 

work copyright owners from record labels.’’); DLC 

Supplemental Interim Rule Comment at 3 (‘‘[I]t 

would be unusual for a service to have contact 

information for a musical work copyright owner 

with whom it has no direct contractual 

relationship.’’). 

38 In adopting the September 2020 rule, and in the 

absence of any contrary comments at that time, the 

Office had read the provision as inadvertently 

omitting individual download licenses, and so 

adopted regulations requiring reporting of copyright 

owner identity and contact information for both 

voluntary licenses and individual download 

licenses. See 37 CFR 210.24(b)(8), 210.25(b)(6), 

210.27(c)(5), 210.28(c)(5). While that interpretation 

is also reasonable, in light of the DLC’s postissuance comments about that approach, the Office 

now finds it more persuasive that the omission of 

individual download licenses was intentional, and 

that, instead, this provision simply did not specify 

that it was not intended to apply to voluntary passthrough licenses. 

39See 17 U.S.C. 115(d)(4)(A)(ii)(I)(bb). 

40 Id. at 115(e)(36). 

41See H.R. Rep. No. 115–651, at 4; S. Rep. No. 

115–339, at 4; Conf. Rep. at 3. 

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).30 In response, the DLC 

and ARM put forward several legal 

arguments supporting the Office’s 

authority.31 While the Office does not 

necessarily agree on every point 

asserted, the Office ultimately concurs 

that the DLC’s proposal is not contrary 

to the statute and that the Office has the 

authority to adopt it (and that as a 

matter of policy, it is appropriate to do 

so in light of the unanimous public 

comments in support of the proposal). 

Specifically, the Office has analyzed 

the interrelationships among sections 

115(d)(3)(G)(i)(I)(bb), 115(d)(4)(A)(ii), 

115(d)(4)(A)(ii)(I)(bb), and 

115(d)(4)(A)(ii)(II), which address the 

MLC’s obligations and DMP reporting 

requirements with respect to voluntary 

licenses and individual download 

licenses.32 Under section 

115(d)(3)(G)(i)(I)(bb), the MLC has a 

duty to ‘‘confirm uses of musical works 

subject to voluntary licenses and 

individual download licenses, and the 

corresponding pro rata amounts to be 

deducted from royalties that would 

otherwise be due under the blanket 

license.’’ 33 And pursuant to the 

introductory paragraph of section 

115(d)(4)(A)(ii), DMPs, in reporting to 

the MLC, must ‘‘provide usage data for 

musical works used under the blanket 

license and usage data for musical 

works used in covered activities under 

voluntary licenses and individual 

download licenses.’’ 34 But under 

section 115(d)(4)(A)(ii)(II) (one of 

multiple subparts providing further 

specificity under this introductory 

paragraph), DMPs are required to report 

musical work copyright owner identity 

and contact information only 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.’’ 35

Individual download licenses are 

conspicuously absent from this subpart, 

although the introductory paragraph of 

section 115(d)(4)(A)(ii) requires 

reporting of usage data under these 

licenses and the MLC must receive at 

least some sort of information about 

these licenses in order to be able to 

carry out its obligations under section 

115(d)(3)(G)(i)(I)(bb). This suggests the 

Office should specify the information 

required to be reported with respect to 

individual download licenses pursuant 

to section 115(d)(4)(A)(ii)(III), which 

requires DMPs to ‘‘provide such other 

information as the Register of 

Copyrights shall require by 

regulation,’’ 36 in addition to the Office’s 

general authority under section 

115(d)(12)(A). 

With respect to section 

115(d)(4)(A)(ii)(II)’s usage of the phrase 

‘‘voluntary license,’’ when read against 

these other provisions and the overall 

licensing framework, the Office believes 

this phrase is best read as referring only 

to voluntary licenses that DMPs have 

entered into directly with musical work 

copyright owners (or their agents), 

leaving a reporting gap for voluntary 

pass-through licenses for which the 

Office should detail requirements by 

regulation. By requiring identity and 

contact information for the relevant 

musical work copyright owners and 

omitting reference to individual 

download licenses, the provision 

implies a direct relationship between 

DMPs and the musical work copyright 

owners that does not exist with passthrough licenses. As the DLC notes, not 

only do DMPs not have this 

information, they often do not even 

know if the relevant pass-through 

licenses are voluntary or compulsory 

because that license belongs to the 

record label.37 If Congress had meant for 

this provision to cover voluntary passthrough licenses, it would have likely 

included a reference to individual 

download licenses as well; there does 

not seem to be any reason to distinguish 

between them for reporting purposes.38

If the provision were read to include 

voluntary pass-through licenses, DMPs 

would have to obtain the relevant 

information from the sound recording 

copyright owners or licensors that have 

the direct relationship with the musical 

work copyright owners, but nothing in 

the statute compels them to provide 

such information to DMPs. Such a 

requirement would also be in tension 

with section 115(d)(4)(A)(ii)(I)(bb), 

which requires DMPs to report musical 

work copyright owner information for 

the musical works embodied in reported 

sound recordings only ‘‘to the extent 

acquired by the digital music provider 

in the metadata provided by sound 

recording copyright owners or other 

licensors of sound recordings in 

connection with the use of sound 

recordings of musical works to engage 

in covered activities.’’ 39

Additionally, the MMA’s definition of 

‘‘voluntary license’’ is very broad: ‘‘A 

license for use of a musical work (or 

share thereof) other than a compulsory 

license obtained under this section.’’ 40

Especially given that this definition is 

not even limited to covered activities, 

examining the context of the provision 

in which the term appears is critical. 

Here, as the foregoing shows, it is clear 

from reading the whole of section 

115(d)(4)(A)(ii) together in context that 

section 115(d)(4)(A)(ii)(II) is meant to be 

referring to voluntary licenses for 

covered activities that are not passthrough licenses. This is in contrast, for 

example, to the introductory paragraph 

of section 115(d)(4)(A)(ii) where it is 

obviously meant to more broadly refer 

to both direct voluntary licenses and 

voluntary pass-through licenses. 

This result is consistent with 

Congress’s expressed intent to 

‘‘maintain[ ] the ‘pass-through’ license 

for record labels to obtain and pass 

through mechanical license rights for 

individual permanent downloads.’’ 41

Reading the statute in a way that 

frustrates the continuation of download 

stores or pass-through licensing for 

permanent downloads would be 

contrary to Congress’s wishes. 

Accordingly, the Office has adopted 

the proposal with a minor modification. 

The Office is omitting the qualifying 

phrase ‘‘where such authority applies to 

the exclusion of the blanket license 

authority pursuant to 17 U.S.C. 


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12826 Federal Register / Vol. 86, No. 42 / Friday, March 5, 2021 / Rules and Regulations 

42See DLC & MLC Ex Parte Letter add. B at 2, 

3, 10 (Dec. 9, 2020). 

43 DLC Supplemental Interim Rule Comment at 5; 

MLC Supplemental Interim Rule Comment at 2. 

44MLC Supplemental Interim Rule Comment at 2. 

45 Id. at 3. 

46See DLC Supplemental Interim Rule Comment 

at 5; MLC Supplemental Interim Rule Comment at 

2. 

47See 17 U.S.C. 115(d)(1)(C)(i). 

48MLC Supplemental Interim Rule Comment at 3; 

DLC & MLC Ex Parte Letter add. B at 17 (Dec. 9, 

2020). 

49MLC Supplemental Interim Rule Comment at 3. 

115(d)(1)(C)(i)’’ from each place where it 

appears in the proposal.42 The DLC 

characterized the language as ‘‘simply 

reiterat[ing] the principle expressed in 

section 115(d)(1)(C)(i),’’ and the MLC 

said it ‘‘sees this language to be in the 

nature of ‘for the avoidance of doubt’ 

language.’’ 43 The MLC explained that 

the reason for the language is ‘‘so that 

DMPs understand clearly that where 

they identify pass-through licenses at 

the sound recording level, then their 

blanket license coverage is also 

excluded at the sound recording 

level.’’ 44 The MLC noted that ‘‘if the 

Office was to clarify that operation of 

voluntary license identification 

elsewhere, then the queried language 

would be less important.’’ 45

In light of these points, the proposed 

language appears to be unnecessary. It 

also seems somewhat ambiguous, and 

could potentially be construed as 

suggesting that there may be types of 

voluntary licenses authorizing DMPs to 

make and distribute permanent 

downloads that do not apply to the 

exclusion of the blanket license, which 

the MLC and DLC state is not the 

intention of the language.46 To clarify, 

as the MLC requests, the Office accepts 

the common sense reading of section 

115(d)(1)(C)(i) that musical works (or 

shares thereof) are only excluded from 

the blanket license to the extent ‘‘a 

voluntary license or individual 

download license applies.’’ 47 In other 

words, the scope of the exclusion from 

the blanket license corresponds to the 

scope of the alternative license 

authority. For example, a pass-through 

license for making permanent 

downloads of a particular sound 

recording of a musical work would only 

exclude the musical work as embodied 

in that specific sound recording and 

used in that specific DPD configuration; 

it would not exclude the musical work 

as embodied in other sound recordings 

or as used in other DPD configurations 

(like interactive streams) that are not 

part of that pass-through license 

authority (which could be separately 

excluded by other licenses). 

The DLC’s proposal also included a 

provision that ‘‘explicitly acknowledges 

that the MLC may report to copyright 

owners regarding usage of their musical 

works that a DMP identified as covered 

by pass-through licenses.’’ 48 The MLC 

explains that it ‘‘believes that it can 

substantially advance transparency’’ by 

doing this, as it would ‘‘for the first time 

in the industry, give copyright owners 

an independent record of download 

store usage that copyright owners can 

use to verify their royalty accountings 

from record labels for mechanical 

licenses that were passed through to 

DMPs.’’ 49 The rule includes this 

unopposed provision, as it further 

serves the transparency aims of the 

MMA. 

In addition to adopting the modified 

DLC proposal, this supplemental 

interim rule updates the December 2020 

rule by providing that the temporary 

reporting exception the Office had 

adopted while it noticed this topic for 

public comment and considered the 

issue more thoroughly shall be retired as 

of the effective date of the new 

provisions now being adopted. 

Beneficiaries of the temporary exception 

are reminded that in order to retain the 

protection of the exception, they must 

comply with the new supplemental 

interim rule by reporting the required 

information to the MLC within 45 days 

after the rule’s effective date. 

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. Amend § 210.24 as follows: 

■ a. Remove ‘‘or individual download 

license’’ each place it appears; 

■ b. In paragraph (b)(8) introductory 

text, add a sentence after the second 

sentence; and 

■ c. Add paragraph (b)(9). 

The additions read as follows: 

§ 210.24 Notices of blanket license. 

* * * * * 

(b) * * * 

(8) * * * This paragraph (b)(8) does 

not apply to any authority obtained by 

a digital music provider from licensors 

of sound recordings to make and 

distribute permanent downloads of 

musical works embodied in such sound 

recordings pursuant to an individual 

download license or voluntary license. 

* * * 

* * * * * 

(9) A description of the extent to 

which the digital music provider is 

operating under authority obtained from 

licensors of sound recordings to make 

and distribute permanent downloads of 

musical works embodied in such sound 

recordings pursuant to an individual 

download license or voluntary license. 

Such description may indicate that such 

authority exists for all permanent 

downloads. Otherwise, such description 

shall include a list of all sound 

recordings for which the digital music 

provider has obtained such authority 

from the respective sound recording 

licensors, or a list of any applicable 

catalog exclusions where the digital 

music provider indicates that such 

authority otherwise exists for all 

permanent downloads. Such description 

shall also include an identification of 

the digital music provider’s covered 

activities operated under such authority. 

* * * * * 

■ 3. Amend § 210.25 by revising 

paragraph (b)(6) to read as follows: 

§ 210.25 Notices of nonblanket activity. 

* * * * * 

(b) * * * 

(6) Acknowledgement of whether the 

significant nonblanket licensee is 

operating under authority obtained from 

licensors of sound recordings to make 

and distribute permanent downloads of 

musical works embodied in such sound 

recordings pursuant to an individual 

download license or voluntary license. 

Where such authority does not cover all 

permanent downloads made available 

on the service, the significant 

nonblanket licensee shall maintain with 

the mechanical licensing collective a list 

of all sound recordings for which it has 

obtained such authority from the 

respective sound recording licensors, or 

a list of any applicable catalog 

exclusions where the significant 

nonblanket licensee indicates that such 

authority otherwise exists for all 

permanent downloads. 

* * * * * 

■ 4. Amend § 210.27 as follows: 

■ a. Revise paragraph (c)(5); and 

■ b. In paragraph (g)(2)(ii), add a 

sentence at the end of the paragraph. 

The revision and addition read as 

follows: 


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Federal Register / Vol. 86, No. 42 / Friday, March 5, 2021 / Rules and Regulations 12827 

§ 210.27 Reports of usage and payment for 

blanket licensees. 

* * * * * 

(c) * * * 

(5)(i) For any voluntary license in 

effect during the applicable monthly 

reporting period, the information 

required under § 210.24(b)(8). If this 

information has been separately 

provided to the mechanical licensing 

collective, it need not be contained in 

the monthly report of usage, provided 

the report states that the information has 

been provided separately and includes 

the date on which such information was 

last provided to the mechanical 

licensing collective. This paragraph 

(c)(5)(i) does not apply to any authority 

obtained by a digital music provider 

from licensors of sound recordings to 

make and distribute permanent 

downloads of musical works embodied 

in such sound recordings pursuant to an 

individual download license or 

voluntary license. 

(ii) For any authority obtained by a 

digital music provider from licensors of 

sound recordings to make and distribute 

permanent downloads of musical works 

embodied in such sound recordings 

pursuant to an individual download 

license or voluntary license, and where 

such authority does not cover all 

permanent downloads made available 

on the service, a list of all sound 

recordings for which the digital music 

provider has obtained such authority 

from the respective sound recording 

licensors, or a list of any applicable 

catalog exclusions where the digital 

music provider indicates that such 

authority otherwise exists for all 

permanent downloads, and an 

identification of the digital music 

provider’s covered activities operated 

under such authority. If this information 

has been separately provided to the 

mechanical licensing collective, it need 

not be contained in the monthly report 

of usage, provided the report states that 

the information has been provided 

separately and includes the date on 

which such information was last 

provided to the mechanical licensing 

collective. 

* * * * * 

(g) * * * 

(2) * * * 

(ii) * * * These efforts may include 

providing copyright owners with 

information on usage of their respective 

musical works that was identified by a 

digital music provider as subject to a 

voluntary license or individual 

download license. 

* * * * * 

■ 5. Amend § 210.28 by revising 

paragraph (c)(5) to read as follows: 

§ 210.28 Reports of usage for significant 

nonblanket licensees. 

* * * * * 

(c) * * * 

(5)(i) For each voluntary license in 

effect during the applicable monthly 

reporting period, the information 

required under § 210.24(b)(8). If this 

information has been separately 

provided to the mechanical licensing 

collective, it need not be contained in 

the monthly report of usage, provided 

the report states that the information has 

been provided separately and includes 

the date on which such information was 

last provided to the mechanical 

licensing collective. This paragraph 

(c)(5)(i) does not apply to any authority 

obtained by a significant nonblanket 

licensee from licensors of sound 

recordings to make and distribute 

permanent downloads of musical works 

embodied in such sound recordings 

pursuant to an individual download 

license or voluntary license. 

(ii) For any authority obtained by a 

significant nonblanket licensee from 

licensors of sound recordings to make 

and distribute permanent downloads of 

musical works embodied in such sound 

recordings pursuant to an individual 

download license or voluntary license, 

and where such authority does not 

cover all permanent downloads made 

available on the service, a list of all 

sound recordings for which the 

significant nonblanket licensee has 

obtained such authority from the 

respective sound recording licensors, or 

a list of any applicable catalog 

exclusions where the significant 

nonblanket licensee indicates that such 

authority otherwise exists for all 

permanent downloads, and 

identification of the significant 

nonblanket licensee’s covered activities 

operated under such authority. If this 

information has been separately 

provided to the mechanical licensing 

collective, it need not be contained in 

the monthly report of usage, provided 

the report states that the information has 

been provided separately and includes 

the date on which such information was 

last provided to the mechanical 

licensing collective. 

* * * * * 

■ 6. Amend § 210.30 as follows: 

■ a. Revise paragraph (a); 

■ b. Remove paragraph (b); and 

■ c. Redesignate paragraph (c) as 

paragraph (b). 

The revision reads as follows: 

§ 210.30 Temporary exception to certain 

reporting requirements about certain 

permanent download licenses. 

(a) 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 before 

April 5, 2021, in connection with a 

submission to the mechanical licensing 

collective before such date, a submitter 

may take additional time to comply 

with such reporting obligations, as 

amended, by no later than May 19, 

2021. Taking such additional time shall 

not render an otherwise compliant 

notice of license, notice of nonblanket 

activity, or report of usage invalid, or 

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. Any 

deadline otherwise applicable to any 

such action by the mechanical licensing 

collective shall be tolled with respect to 

a submitter permitted to take additional 

time to comply with these reporting 

obligations until May 19, 2021. 

* * * * * 

Dated: February 23, 2021. 

Shira Perlmutter, 

Register of Copyrights and Director of the 

U.S. Copyright Office. 

Approved by: 

Carla D. Hayden, 

Librarian of Congress. 

[FR Doc. 2021–04573 Filed 3–4–21; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2021–0134; FRL–10020– 

94–Region 9] 

Determination To Defer Sanctions; 

Arizona; Pinal County Air Quality 

Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim final determination. 

SUMMARY: The Environmental Protection 

Agency (EPA) is making an interim final 

determination that the Arizona 

Department of Environmental Quality 

(ADEQ) has submitted rules and other 

materials on behalf of the Pinal County 

Air Quality Control District (PCAQCD or 

District) that correct deficiencies in its 

Clean Air Act (CAA or Act) state 

implementation plan (SIP) provisions 

concerning ozone nonattainment 

requirements. This determination is 


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