We often overlook the international dimension to the Mechanical Licensing Collective created by Congress in the Music Modernization Act. We’re not the only ones.
One of the most insightful comments in the Copyright Office’s public request for suggestions for regulations to govern the MLC came from CISAC and BIEM.
CISAC stands for Confédération Internationale des Sociétés d’Auteurs et Compositeurs. Founded in 1928, CISAC has been working on the data exchanges and standard identifiers for songs and other non-recorded works since 1994. CISAC created the much discussed abd widely adopted International Standard Work Code (“ISWC”) for songs.
BIEM stands for Bureau International des Sociétés Gérant les Droits d’Enregistrement et de Reproduction Mécanique. Founded in 1929, BIEM represents mechanical collecting societies in some 58 countries.
You may not recognize those acronyms, so here is how the two organizations describe themselves in their comment:
The International Confederation of Societies of Authors and Composers (CISAC), and the International Organisation representing Mechanical Rights Societies (BIEM) are international organisations representing Collective Management Organisations (“CMOs”) worldwide1. CISAC and BIEM members are entrusted with the management of creators’ rights and, as such, have a direct interest in the regulations governing the new blanket licensing system for digital uses as well as the activities of the Mechanical Licensing Collective (MLC).
Another way to say it is that the MLC was to a large extent modeled on these mechanical rights societies with some important differences, starting with governance. The president of CISAC is Jean-Michel Jarre, the composer. That’s right, a composer is the president. Just sayin’. You may remember Jean-Michel from the #irespectmusic campaign when he was all-in early:
Here’s an excerpt from the CISAC/BIEM filing that we though was important, but you should take a few minutes and read the entire thing. It’s not very long and it includes vitally important concepts that were never mentioned in Title I of the Music Modernization Act. The comment is spelled out very politely from people who actually know what they’re doing. Let’s just say that independent songwriters are not the only ones who may end up in the dreaded black box.
Remember that MLC is accountable (no pun intended) for identifying and paying potentially on all songs ever written or that may ever be written that are exploited in the US under the new blanket compulsory license in Title I of MMA. This doesn’t mean that all songs will be exploited all the time, but it does mean that MLC has chosen to be responsible for identifying every song and paying royalties to every songwriter as and when exploited–so to speak. All with the authorization of the U.S. Congress. Starting next January.
Comments on Section B: Data Collection and Delivery Efforts
The correct identification of copyright owners shall be a key objective of the MLC. Regulations shall ensure the appropriate onward distribution of royalties to copyright owners, whether national or foreign, and therefore that non-US [Collective Management Organizations (“CMOs”)] are entitled to make registrations and thus, claim royalties with the MLC.
Support the Non-Discriminatory Treatment of Foreign Rightholders
In compliance with article 5.1 of the Berne Convention guaranteeing non-discriminatory treatment between national and non-national creators, the Office should promulgate regulations that ensure rightholders of “US works”
and “non-US works” enjoy the same rights and are equally treated when their works are exploited in the US territory.
Provide adequate means for CMOs to submit rightsholder information
Outside the US and in particular in Europe, it is common practice for creators to entrust the administration of both performing and mechanical rights to CMOs. As the history of mechanical rights collective management in Europe shows, CMOs are indispensable in the process of establishing the correct ownership of musical works (and shares of such works) on behalf of individual right holders. Oftentimes non-US CMOs are also responsible for the registration of works information licensed in the U.S. that are only sub-published, or not published at all, in the U.S. In this regard, it is essential that non-US CMOs are also entitled to make registrations and, thus, claim royalties with the MLC. Importantly, non-US CMOs (in particular BIEM Members) are normally able to contribute data in relation to work identification and to the registration of work information in the MLC’s Database with a high degree of reliability; in many cases their contributions would be necessary to supplement data submitted by DMPs.
Therefore, the role of non-US CMOs in the identification of works should be expressly foreseen by the regulations. Likewise, the role of CMOs should also be expressly foreseen by the Regulations with regards tothe proper use and implementation of data standards such as ISWC that will ultimately support the proper identification of rightsholders.