What the MLC Can Learn from Orphan Works

As you may be aware, The MLC recently received $424 million as payment of the “inception to date” unmatched mechanical royalties held at a number of streaming platforms, sometimes called the “black box.” Why do we have a black box at all? For the same reason you have “pending and unmatched” at record companies–somebody decided to exploit the recording without clearing the song.

Streaming services will, no doubt, try to blame the labels for this missing data, but that dog don’t hunt. First, the streaming service has an independent obligation to obtain a license and therefore to know who they are licensing from. Just because the labels do, too, doesn’t diminish the service’s obligation. It must also be said that for years, services did not accept delivery of publishing metadata even if a label wanted to give it to them. So that helps explain how we get to $424 million. Although the money was paid around mid-February, it’s clearly grown because The MLC is to hold the funds in an interest bearing account. Although The MLC has yet to disclose the current balance. Maybe someday.

This payment is, rough justice, a quid pro quo for the new “reach back” safe harbor that the drafters of Title I came up with that denies songwriters the right to sue for statutory damages if a platform complies with their rules including paying this money. That’s correct–songwriters gave up a valuable right to get paid with their own money.

The MLC has not released details about these funds as yet, but one would expect that the vast majority of the unmatched would be for accounting periods prior to the enactment of Title I of the Music Modernization Act (Oct. 11, 2018). One reason that expectation would be justified is that Title I requires services to try hard(er) to match song royalties with song owners. The statute states “…a digital music provider shall engage in good-faith, commercially reasonable efforts to identify and locate each copyright owner of such musical work (or share thereof)” as a condition of being granted the safe harbor.

The statute then goes on to list some examples of “good faith commercially reasonable efforts”. This search, or lack thereof, is at the heart of Eight Mile Style and Martin Affiliated’s lawsuit against Spotify and the Harry Fox Agency. (As the amended complaint states, “Nowhere does the MMA limitation of liability section suggest that it lets a DMP off the hook for copyright infringement liability for matched works where the DMP simply committed copyright infringement. The same should also be true where the DMP had the information, or the means, to match, but simply ignored all remedies and requirements and committed copyright infringement instead. Spotify does not therefore meet the requirements for the liability limitations of the MMA with respect to Eight Mile for this reason alone.”)

The MMA language is similar to “reasonably diligent search” obligations for orphan works, which are typically works of copyright where the owner cannot be identified by the user after trying to find them. This may be the only aspect of orphan works practice that is relevant to the black box under MMA. Since considerable effort has been put into coming up with what constitutes a proper search particularly in Europe it might be a good idea to review those standards.

We may be able to learn somethng about what we expect the services to have already done before transferring the matching problem to the MLC and what we can expect the MLC to do now that they have the hot potato. The MMA provides non-exclusive examples of what would comprise a good search, so it is relevant what other best practices may be out there.

Establishing reference points for what constitutes “good faith commercially reasonable efforts” under MMA is important to answer the threshold question: Is the $424 million payment really all there is? How did the services arrive at this number? While we are impressed by the size of the payment, that’s exactly the reason why we should inquire further about how it was arrived at, what periods it is for and whether any deductions were made. Otherwise it’s a bit like buying the proverbial pig in the proverbial poke.

One method lawmakers have arrived at for determining reasonableness is whether the work could be identified by consulting readily available databases identified by experts (or common sense). For example, if a songwriter has all their metadata correct with the PROs, it’s going to be a bit hard to stomach that either the service or the MLC can’t find them.

Fortunately, we have the Memorandum of Understanding from the European Digital Libraries initiative which brought together a number of working groups to develop best practices to search for different copyright categories of orphan works. The Music/Sound Working Group was represented by Véronique Desbrosses of GESAC and Shira Perlmutter, then of IFPI and now Register of Copyrights (head of the U.S. Copyright Office). The Music/Sound Working Group established these reasonable search guidelines:

DUE DILIGENCE GUIDELINES

The [Music/Sound] Working Group further discussed what constituted appropriate due diligence in dealing with the interests of the groups represented at the table—i.e., what a responsible [user] should, and does, do to find the relevant right holders. We agreed that at least the following searches should be undertaken:

1. Check credits and other information appearing on the work’s packaging (including names, titles, date and place of recording) and follow up through those leads to find additional right holders (e.g., contacting a record [company] to find the performers).

2. Check the databases/membership lists of relevant associations or institutions representing the relevant category of right holder (including collecting societies, unions, and membership or trade associations). In the area of music/sound, such resources are extensive although not always exhaustive.

3. Utilise public search engines to locate right holders by following up on whatever names and facts are available.

4. Review online copyright registration lists maintained by government agencies, such as the U.S. Copyright Office.

Perhaps when the MLC audits the inception to date payments we’ll have some idea of whether the services complied with these simple guidelines.

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