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Federal Register / Vol. 86, No. 27 / Thursday, February 11, 2021 / Rules and Regulations
there will be no penalty for unlawful disclosure. 195
In the NPRM, the Office was disinclined to require that confidentiality obligations for the MLC
and DLC operate at an organization-toorganization level. Instead, the proposed rule stated that the various categories of individuals to receive confidential information do so subject to an appropriate written confidentiality agreement. In response, the MLC
believes that the current Proposed Regulation, which provides that any DLC appointee to the MLC board or committees must sign a confidentiality agreement is the appropriate solution. 196 The MLC maintains that if the DLC member company would like its employee to serve as an MLC
board or committee member, then it can except the employee from such restriction and allow that individual to serve as a DLC appointee and thus comply with the confidentiality obligations imposed on all board and committee members, or else identify an alternate appointee that can participate with full accountability to the MLC and its members. 197 By contrast, the DLC asserts that because it proposes disclosing only MLC Internal Information to MLC and DLC board and committee members as discussed above, the less-sensitive nature of this internal MLC and DLC information diminishes to a substantial degree the rationale for imposing potential personal liability as a condition for board and committee membership. 198
The DLC also notes that it has adopted a confidentiality policy that operates between itself and DLC member companies, which allows the individual DLC representatives to share information and consult as needed within their companies, without the cumbersome process of requiring each person that is so consulted to first sign a confidentiality agreement with DLC. 199
The Office recognizes that the DLC
would prefer for DLC representatives to be able to easily share MLC Internal Information and consult as needed within their companies, but the Office is mindful that sensitive information regarding the MLCs internal operations needs appropriate protections in place to prevent improper disclosure or use.
As noted in the NPRM, binding individuals in their personal capacities provides an avenue of recourse and is a 195 MLC

Reply NOI Comment at 41.
196 MLC NPRM Comment at 22.
197 Id. at 23.
198 DLC NPRM Comment at 9.
199 Id.

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common practice in model protective orders used in the analogous context of preventing confidential information produced through litigation discovery from being improperly disclosed or misused.200 Also, the DLCs existing confidentiality policy with its members relates to information that would likely fall under the definition of DLC
Internal Information, not information relating to the MLCs operations.201
Accordingly, the Office again declines the DLCs proposal that confidentiality obligations for the MLC and DLC
operate at an organization-toorganization level for both confidential information and MLC Internal Information. 202 The Office does not, however, intend to interfere with the DLC and its members having agreements at an organization-to-organization level to allow sharing of DLC Internal Information and consulting as needed regarding such information within their organization companies without having each individual signing an agreement in his or her personal capacity.
In response to commenters concern about the MLC requiring additionally restrictive NDAs for its board and committee members,203 the proposed rule prevented the MLC and DLC from imposing additional restrictions relating to the use or disclosure of confidential information, beyond those imposed by the Offices regulations, as a condition for participation on a board or 200 85

FR at 22566.
DLC NPRM Comment Ex. 1 stating that information covered by the agreement includes, but is not limited to personnel issues; information that is proprietary to, or the intellectual property of, the DLC or the other Member Companies;
unpublished data and manuscripts; draft standards and policies; deliberations; and other information that has not been authorized for disclosure, has not become public and that is obtained through a Member Companys or an individuals relationship with the DLC.
202 One commenter suggests that the MLC make its form confidentiality agreement public. Castle NPRM Comment at 4. The MLC advised that it does not know whether its confidentiality expectations for board and committee members will all be captured in a template agreement, but that as part of its ongoing and general informational activities, in addition to following the Offices regulations as to confidential information, the MLC
intends to provide information to the public as to any additional confidentiality expectations that it has for its board and advisory committee members, whether through posting template or exemplar agreements or otherwise identifying such confidentiality expectations. MLC Ex Parte Letter 9 at 4.
203 The DLC maintained that Offices regulations should be the ceiling on any confidentiality requirements by the MLC. DLC Reply NOI
Comment at 28. NOIS, joined by individual stakeholders, contended that there must be a rejection of any incremental NDA put forth by the MLC to its board and/or committee members that requires anything not mandated by the MMA.
NOIS et al. Initial NOI Comment at 16.
201 See
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committee.204 The proposed rule stated that the use of confidentiality agreements by the MLC and DLC shall be subject to the other provisions of the Offices confidentiality regulations, and shall not permit broader use or disclosure of Confidential Information than permitted under the regulations.205 The proposed rule also stated that the MLC and DLC may not impose additional restrictions relating to the use or disclosure of Confidential Information, beyond those imposed by this provision, as a condition for participation on a board or committee.206
The MLC objected to these provisions, contending that limiting the scope of the appropriate written confidentiality agreements to agreements that provide for no more and no less than what is already specified in the regulation renders meaningless the added qualifier that the use or disclosure shall be made subject to an appropriate written confidentiality agreement. 207 The MLC suggests that additional appropriate restrictions not addressed in the regulationssuch as provisions requiring that adequate notice be given prior to any disclosure in response to a subpoena or other legal process or providing for the return or destruction of confidential materials on demand or at the end of a service periodwould be imprudent not to include in confidentiality agreements, but could be considered additional restrictions on use beyond those in the Offices regulations.208 By contrast, FMC
supports the proposed rule, expressing its appreciation that the Office has made it clear that the MLC cannot create additional restrictions on the use and disclosure of confidential information beyond the Offices regulations, which will help writers and composers have an extra degree of confidence about the healthy internal functioning of the MLC
and know that board and committee members who have concerns would feel free to speak freely to impacted copyright owners and writers. 209
The Office acknowledges that its regulations may not address all appropriate use restrictions and that confidentiality agreements may need to fill in some gaps e.g., provisions regarding notice before disclosures in response to subpoenas or other legal processes, the return or destruction of confidential materials. The Office is 204 85
205 Id.

FR at 22566.
at 22568.

206 Id.
207 MLC

NPRM Comment at 17.
at 1718.
209 FMC NPRM Comment at 2.
208 Id.

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