Creative Commons – the other way? 59 Learned Publishing, 20, 59–68 Creative Commons – the other way? Uma Suthersanen LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007 Creative T he basis and attraction of CC licences Commons – Philosophical ethos Creative Commons (CC) is a non-profit, US-based organization that operates a licensing platform which attempts to marry the other way? the best elements of public domain ethos to copyright law. The main philosophy behind Uma SUTHERSANEN the ‘creative commons’ is to strengthen the Queen Mary College, University of London public domain. And this is not necessarily a bad thing as it allows free use of works for © Uma Suthersanen 2007 certain purposes, with the consent of the authors. ABSTRACT: On 9 Mar 2006, the District Court In reality, the CC licensing regime has of Amsterdam upheld the Creative Commons (CC) evolved since the founder’s initial inception licence in relation to photographs made available for of the idea and it now does, in a rather the public on an online sharing website, but subject quirky way, promote free use of creative to a Creative Commons licence. This is the first works whilst preserving some rights of the known court decision involving a Creative Common creator, especially the moral right of attribu- licence, not only in the European Union, but tion and the right of the author to receive worldwide, that has held that CC licences are valid remuneration for commercial usage of the and enforceable. This paper gives a critical analysis work. Authors, by the simple expedient of of the reasons for the popularity of Creative choosing the type of CC licence they wish to Commons licences and of the basic structure of the attach to their work, can offer and distribute Creative Commons licensing regime in England and their works without an intermediary for Wales. non-commercial use. Authors, collecting societies, and new technologies Seeking out rights owners, and then negoti- ating and finally securing licences to use works for certain purposes entails high trans- action costs, both for the creator and the user. The origins of collective representation of author’s copyright interests can be traced to revolutionary France where the first authors’ societies arose partly from the inability of musical and dramatic authors to monitor the transient performances of the numerous works in their repertoire, and the This work is licensed under the Creative Commons recorded authors’ society was formed under Attribution-NonCommercial-NoDerivs 2.0 England & the direction of Beaumarchais in 1777 in Wales License. To view a copy of this licence, visit http://creativecommons.org/licenses/by-nc-nd/2.0/uk/ or respect of dramatic rights, while literary send a letter to Creative Commons, 559 Nathan Abbott authors formed their own society in 1837 Way, Stanford, California 94305, USA. Uma Suthersanen LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007 60 Uma Suthersanen under the aegis of de Balzac, Dumas, Hugo et identification systems) may result in greater al. By the late nineteenth century it was individual management. Corporate and accepted that individual management and multinational rights holders, for example, enforcement of rights was illusory and that it have always been in a strong technological was not economically feasible for copyright position to monitor usage of their works and holders to monitor and obtain payment for collect licensing incomes themselves. The each such use.1 CC licences, for example, do attempt to This reasoning is also the basis of collecting make available to individual creators similar societies, i.e. that collective administration technological tools such as Uniform Resource and management of rights by dedicated soci- Identifiers.4 eties and organizations are the most efficient A second reason why the relationship means for authors and rights holders to con- between authors, producers, and users may trol their rights. Moreover, the aggregation have changed is the growing incursion of of rights within a particular collecting soci- electronic trading in our daily lives. Twenty ety brings a measure of power over their years ago, not many users, including authors, markets which is capable of being exercised would have been comfortable with online courts are in beneficial (as well as controversial) ways. sales, let alone ‘click-wrap’ copyright con- becoming This structure of rights management also tracts. Nowadays, however, do-it-yourself suits most users in that it is more expedient tools, including the CC licensing regime, increasingly to be directed to one collective body which empower and enable individual authors of indifferent to manages one specific type of right or rights literary and musical works to retain more pleas of in relation to one specific type of work.2 control over their work. The growing accep- Copyright policy, both by legislators and tance of e-commerce does logically mean ignorance of industrialists, has been based on the follow- that there is growing acceptance (if not the law ing classical market economy paradigm of comprehension) by Internet users of the how the market for most goods and services legal implications of clicking either the ‘I work: Agree’ button or downloading. And as court decisions on either CC licences or file shar- Production – Circulation – Exchange/Barter ing show, courts are becoming increasingly The traditional creative industries have indifferent to pleas of ignorance of the law. revolved around this formula, producing Thirdly, not all authors are represented by three main stakeholders: centralized institutions or collecting societ- Creator– Publisher/Producer/Distributor – ies. Indeed, this was a point of difficulty in User/Consumer. Universities UK v. Copyright Licensing Agency Ltd, and Design and Artists Copyright Society It is true that many authors still rely Ltd.5 where the reprographic collecting extensively on either publishers and/or system tacitly assumes that all authors of collecting societies or other centralized man- all articles in learned journals and books agement organizations as these institutions are members of an author’s collecting soci- remain the best means to manage copyright ety. Some are not, and thus they remain works on a mass scale.3 But this argument outside the collection and distribution cir- loses some of its persuasion in light of new cuit of collective licensing and remuneration technologies. altogether.6 Creator– Internet (with/out CC licences) – Reader/User Authorial disillusionment with copyright law Creation – Distribution – Use/Consumption The Internet also offers the individual author The above formula indicates how the the opportunity to be more independent in author theoretically views the new relation- terms of publishing or distributing their book ship between his/her product and the or music. In the pre-digital era, authors and reading public. The rapid development musicians were completely reliant on pub- and experimentation in digital rights man- lishers and recording companies to reach agement systems (especially in relation to mass audiences. Today, technology allows LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007 Creative Commons – the other way? 61 musicians and authors to produce profes- the use of creative content, CC seeks to sionally created music albums and books, as make it easier for academic, scholarly, young, opposed to the analogue days of home-made or non-profit creators and authors not only recordings and typed manuscripts. There are to engage in creative enterprises but also to also now enough third-party websites to be actively involved in the dealing of works. showcase the works of creators without the It puts the author in control of the work imprimatur of a recording company, a radio (though this is a controversial point – some station, or a publisher. argue that the licences actually obviate The advent of the Internet, and the lure authorial rights and presence). Note that the of absolute control over his or her work, is CC licensing is very much geared, however, attractive to the average academic scholar if to non-commercial usage rather than com- one considers that most publishers or col- mercial usage. Indeed, the CC licensing lecting societies require exclusive licences platform aims at increasing the public domain or assignments of rights in order to manage and encouraging non-commercial sharing of creative works. Authors are increasingly works. becoming resistant to losing absolute control of their works. In this respect, many anti- Nuts and bolts of CC licences copyright authors tend to come from the academic or computing worlds with their Core concepts own cultural traditions of scholarship being All but one of the CC licences build upon based on prior works. the ‘all rights reserved’ concept of traditional It is true that copyright law in some in- copyright, and instead offer a voluntary stances, and in certain jurisdictions, does ‘some rights reserved’ approach. The follow- not treat authors well. This is especially true ing is a concise and basic explanation of the when one examines both international and variants of this basic approach. national laws pertaining to moral rights, When a creator goes to the ‘Publish’ page ownership, assignment, and technological of the CC website, the following statement protection measures.7 This is particularly appears and sets out their choices: copyright notable in the United Kingdom and in the With a Creative Commons licence, you law in some United States, both of which have a poor instances record in relation to authors’ moral rights. keep your copyright but allow people to Authors of literary works, for instance, have copy and distribute your work provided does not treat no moral rights under federal copyright law they give you credit – and only on the con- authors well in the United States.8 The situation, though ditions you specify here. If you want to of- better in the United Kingdom, still falls fer your work with no conditions, choose short of protecting the average author from the public domain. waiving all moral rights in a standard pub- Thus, the choices are as follows: lishing contract.9 It should be remembered that the CC con- 앫 Some rights reserved option The creator cept is the product of a scholar and retains copyright, but wishes to allow academic, rather than a professional writer,10 copying and distribution according to and it is not surprising that the common specific conditions – attribution, commer- denominator in all of the CC licences is the cial usage, duration, modifications, etc. authors’ reservation of the right of pater- 앫 Public domain option The creator chooses nity/attribution. The licences offer the to completely waive/relinquish his/her opportunity to the author to evoke their copyright in the work – this is akin to individuality, to bypass standard terms con- ‘dedicating’ the copyright to the public. tracts, and to still claim some rights such as the right of attribution. After a choice is made, the creator has the option of tagging his/her work with the CC Some economic benefits of CC licensing licence. Note that the licence itself is expressed to members of the public in three By reducing the legal costs associated with different formats: LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007 64 Uma Suthersanen 앫 Commons Deed – which is the licence ex- copyright to the commons or the public plained in simple lay terms to all. domain but for 14 or 28 years (based on 앫 Legal Code – which is the legal licence it- the original 1710 Statute of Anne Copy- self, which is available if the user wishes to right Act). investigate the conditions of the licence 앫 Music sharing licence. This is identical to further. the attribution–non-commercial–no deriv- 앫 Digital Code – a machine-readable version atives licence but offers additional services of the licence, which helps search engines such as allowing music creators to share and other applications identify the work the music with a legal licence, promoting by its terms of use. the work via the CC website and allowing commercial purchases (or free hosting of The different types of CC licences available the work) and make it searchable. 앫 Developing nations licence. This allows a At the heart of the CC licensing platform licence of less restrictive terms to countries are the four core types of licences: attribu- which are not considered high income by tion, non-commercial, no derivatives, and the World Bank. share like: four core types 앫 Software licences (i.e. GNU-GPL and of licences 앫 Attribution (moral rights assertion). You let GNU-LGPL). These are specialized soft- others copy, distribute, display, and perform ware licences which originated from the your copyrighted work – and derivative Free Software Foundation’s GNU General works based upon it – but only if they give Public Licence. The CC’s metadata is credit the way you request. merely added to the official Free Software 앫 Non-commercial (limited purpose use). You Foundation’s licence. Note that the Free let others copy, distribute, display, and Software concept is not at all based on the perform your work – and derivative works notion of price (as in ‘it’s free, you pay based upon it – but for non-commercial nothing’) but more on the notion of ‘free- purposes only dom’ (as in freedom to enjoy property, 앫 No derivative works. You let others copy, freedom to privacy, freedom to access).11 distribute, display, and perform only ver- batim copies of your work, not derivative works based upon it. The current versions of UK licences (version 2.5 to be released12) 앫 Share alike. You allow others to distribute derivative works only under a license 앫 Attribution – share-alike. This license lets identical to the license that governs your others remix, tweak, and build upon your work. work even for commercial reasons, as long Mixing and matching these conditions as they credit you and license their new produces sixteen possible combinations, of creations under the identical terms. This which eleven are valid CC licences. Of the license is often compared to open source five invalid combinations, four include both software licenses. All new works based on the ‘ND’ and ‘SA’ clauses, which are mutu- yours will carry the same license, so any ally exclusive; and one includes none of the derivatives will also allow commercial use. clauses, which is equivalent to releasing 앫 Attribution – no-derivatives. This license one’s work into the public domain. Licences allows for redistribution, commercial and without the attribution clause are being non-commercial, as long as it is passed phased out as 98% of licensors request attri- along unchanged and in whole, with bution. credit to you. On top of this, one also has the further 앫 Attribution – non-commercial – share-alike. option of specialized licences: This license lets others remix, tweak, and build upon your work non-commercially, 앫 Sampling licence. This allow for snippets as long as they credit you and license their (not whole work) to be remixed into new new creations under the identical terms. works, even commercially. Others can download and redistribute your 앫 Founders copyright licence. This dedicates work just like the by-Non-Commercial- LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007 Creative Commons – the other way? 65 Non-Derivative license, but they can also the proliferation of patents in key technolog- translate, make remixes, and produce new ical areas such as biotechnology. In one stories based on your work. All new work sense, SC returns the licensing model back based on yours will carry the same license, so to its origins – the open source15 movement any derivatives will also be non-commercial in software development, which used con- in nature. tractual licences to curtail the scope of 앫 Attribution – non-commercial – no-deriva- copyright (and patent) protection, and tives. This license is the most restrictive of which has been used by the CC model so as our six main licenses, allowing redistribu- to extend to all types of works, for differing tion. This license is often called the ‘free reasons. advertising’ license because it allows oth- However, rather than working within the ers to download your works and share open source movement, SC utilizes the exist- them with others as long as they mention ing CC licence platform but pushes further you and link back to you, but they cannot by creating three project areas: publishing, The basic aim change them in any way or use them com- licensing, and data. mercially. of Science 앫 Attribution – non-commercial. This license SC publishing Commons is to lets others remix, tweak, and build upon This part of the SC project is aimed at allow- allow your work non-commercially, and although their new works must also acknowledge ing scientific researchers easy access to researchers you and be non-commercial, they do not published works for research purposes. Schol- more flexibility arly communication in the sciences primarily have to license their derivative works on involves three kinds of information: when they the same terms. publish and 앫 Attribution. This license lets others distrib- ute, remix, tweak, and build upon your 앫 data generated by experimental research; share data work, even commercially, as long as they 앫 peer-reviewed journal articles explaining credit you for the original creation. This is and interpreting the data; and the most accommodating of licenses of- 앫 metadata that describes or interprets arti- fered, in terms of what others can do with cles or their underlying data. your works licensed under Attribution. The SC Publishing Project tries to broaden access to and dissemination of all three types The next generation of information by employing the CC licens- ing regime. For example, publishers of some Why a ‘Science Commons’? peer-reviewed science journals have opted for an open access business model16 wherein A new ancillary organization has recently the authors are given the option of granting been launched which uses the same licens- a CC license to the public in their articles.17 ing model as the CC but is concerned with SC is also working to broaden access to scientific data. The basic aim of Science literature published by traditional, subscrip- Commons (SC) is to allow researchers more tion-based journals by offering self-archiving flexibility when they publish and share services to researchers, as well as standard data.13 SC goes a step further than CC. legal tools to enable researchers to retain While the former offers a traditional con- sufficient rights to make their research avail- tractual solution based on the radical notion able on the Internet. of the independent author offering a global licence of his/her choice to all, SC aims to SC licensing provide a form of legal protection that serves as an alternative to copyright and patents. Much of the licensing of research materials One reason for the formation of the SC is (patented or not) which has been developed the advent of studies, reports, and articles in universities, startup companies, biotech- where concern has been expressed regarding nology companies, non-profit clinics, and the restriction of intellectual property law on hospitals is currently done through material the dissemination of scientific works,14 and transfer agreements (MTAs).18 Research LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007 66 Uma Suthersanen materials include both physical matter such Rhetorically, CC licences demonstrate an as tissues, genes, and proteins as well as alternative and positive approach towards intangible intellectual matter such as copyright attitude towards the sharing of know-how, software, and databases. MTAs (and wider access to) ‘knowledge’ and in- are a difficult and non-standardized regime, formation. Moreover they empower the with some materials or knowledge being individual creator to deal with his/her work controlled under so many MTAs so as to rather than hand the management of the form an MTA-web that it is difficult to work to publishers, sound-recording com- either gain access to such research material panies, or collecting societies. Moreover, the or use them. It is thought that the long-term usage of CC licenses has generated much impact of such complex webs of agreements discourse on the validity and efficiency of is to curtain innovation and research. current copyright laws, especially in taking The SC Licensing Project will attempt to into account the needs and wishes of cre- harmonize MTA procedures and develop a ators. As one report has stated, the CC standard, open framework for managing regime may provide ‘a reformist window material transfer, including standard legal that will open up into a wider and systemic terms and educational materials. Key issues critique of the existing system’.19 to be resolved include are: Some points that should be noted, which may be advantages or disadvantages depend- 앫 How can funding organizations, corpora- ing on one’s needs and interests, are: tions, and universities utilize standard, open agreements to facilitate licensing of intellectual property and exchange of 앫 On the one hand, the CC licensing regime materials? promotes the European droit d’auteur (or 앫 Which existing agreements are good tar- author’s rights) system with its emphasis gets for standardization? on strong moral rights, non-waiver of 앫 What value would standard, open legal rights, and restricted scope for authors to approaches bring for orphan diseases and assign or licence away all existing or future health products in the developing world? rights. On the other hand, the CC regime presumes and adopts the more Anglo- SC Data American economic notion of copyright, courts i.e. the commodification of creativity is recognize CC This part of the project looks at the exten- sion of copyright and other intellectual necessary, and property rights in cultural licences as property laws to data, especially in relation and literary products are natural.20 being valid to functional information on genetic func- 앫 The variety of CC licences is both wide tions and other gene-based data. The SC and comprehensive, but with the SC contractual licensing initiative, the licensing options Data Project works with groups such as agreements BioBricks Foundation in order to create a available to the average author or scientist harmonized and certain environment in may become too confusing. In this man- relation to storage, distribution, and licens- ner, the CC regime may, if no heed is paid ing of genetic data. This part of the project to its future practical development, descend also oversees the NeuroCommons concept into an even more Byzantine structure whereby raw data is made available to other than the current licensing mixture (which scientists based on the CC approach. To this comprises legal regulation under statutory end, the project has set up the Science copyright law and contractual regulation Commons Data. under collective management practices). 앫 There has been much doubt as to the Conclusions value of a CC licence, especially in terms of enforcement. To some extent, these doubts have lessened since the latest deci- Advantages and disadvantages sions in the Netherlands21 and Spain which There are many positive aspects to the CC appear to confirm that courts recognize licence regime. CC licences as being valid contractual LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007 Creative Commons – the other way? 67 agreements between the author and the switch away from a CC regime if more mon- future user of a work on the Internet.22 ies are actually channelled towards authors 앫 Does the CC approach challenge current or are earned directly by them from publica- assumptions and structures regarding tions. Many authors remain information copyright management, collecting societ- Samaritans until their own works are plagia- ies, publishers, and unequal bargaining rized without attribution, or are exploited for positions? Does it challenge traditional profit. In this case, then, the interests of copyright industries and pose a problem in both authors and publishers are similar. an economic sense for such industries to Perhaps the most important goal of the many authors protect their investment and recoup CC regime is the building of an effective losses? bridge to seek a compromise between all the are powerfully 앫 Does the individualized CC approach competing and complementary interests of attracted to challenge the fact that most works are authors, collecting societies and publishers. the CC produced by employees, not self-employed phenomenon persons, and hence are usually owned by References their employees? Should it confront the 1. For historical accounts, see Hesse, C. Publishing and fact that many creators (e.g. most musi- Cultural Politics in Revolutionary Paris, 1789–1810. cians, most academic authors) may be University of California Press, 1991, pp. 115–121; required, because of unequal bargaining Peeperkorn, D. Collecting for ‘Bluettes’. In D. Peeperkorn and C. van Rij (eds), Collecting Societies in power, to assign copyright in their own the Music Business. International Association of work to a record company or publisher as Entertainment Lawyers/Maklu Publishers, 1989. a condition of getting their work produced 2. Suthersanen, U. ‘Collectivism of copyright: the future or published? of rights management in the European Union’, in E. Barendt and A. Firth (eds), 5 Yearbook of Copyright and Media Law. Oxford University Press, 2000, There are mixed results in relation to the pp. 15–42. 3. An excellent economic analysis of collective manage- CC licensing programs all over the world. ment is to be found in Besen, S.M. and Kirby, S.N. The Copy/South Dossier has noted that the Compensating Creators of Intellectual Property: Collect- regime does not work in India, where piracy ives That Collect. Rand Corporation, 1989. 4. Technically, a Uniform Resource Identifier (URI) is is tantamount to access to knowledge due to defined as ‘a compact sequence of characters that the population numbers and cost of books. identifies an abstract or physical resource’. In layman’s The CC licensing regime has been a singular terms, the URI (or URLs) are locators or names that success in Brazil, where the CC programme identify resources on the Web. 5. Copyright Tribunal Case Nos. CT 71/00, 72/00, has restructured the entertainment market, 73/00, 74/00, and 75/01, unreported. The decision especially in relation to music (e.g. the can be accessed at http://www.patent.gov.uk/copy/ Canto Livre movement). We must wait to tribunal/triabissued.htm. see how the CC licensing regime fares in the 6. The 1976 Franki Committee in Australia, based on anecdotal evidence, concluded that most academic United Kingdom. authors of journal articles were not members of any such society, Report of the Copyright Law Committee on Reprographic Reproduction, 1976, para. 3.14. On Is there a brighter future? education and copyright, see Suthersanen, U. Copyright and educational policies – a stakeholder Nevertheless, one cannot ignore the fact analysis. Oxford Journal of Legal Studies, 2003:4, that many authors, especially in the field of 586–610. academe, software programming, and music, 7. For a British account of poor authorial protection, see Bently, L. Between a Rock and a Hard Place: The are powerfully attracted to the CC phenom- Problems Facing Freelance Creators in the UK Media enon. Moreover, such authors may appear to Marketplace. Institute of Employment Rights, 2002. be naïve, charitable, and have an unusually 8. Section 106A, Copyright Act 1976 (United States) pro-Samaritan attitude in relation to their conferring. 9. Section 78 (requiring that the paternity right be creations, but there are valid reasons for this asserted) and 87 (allowing waiver of rights), affinity. However, it cannot be denied that Copyright, Designs and Patents Act 1988 (United from this perspective, authorial and pub- Kingdom). lisher values and interests compete. 10. Lawrence Lessig’s blogsite at http://www.lessig. org/blog/ On the other hand, it is not clear how 11. For more on the Free Software Foundation’s licence, many of such authors would, if pressed, see http://www.gnu.org/philosophy/free-sw.html LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007 68 Uma Suthersanen 12. Note that this version is still at a beta stage, and the any derivatives. Biological materials, such as reagents, final revised version may contain amendments. cell lines, plasmids, and vectors, are the most 13. A CC licence currently covers the content of the frequently transferred materials, but MTAs may also Public Library of Science publications PLoS Biology be used for other types of materials, such as chemical and PLoS Medicine. And the Biological Innovation for compounds and even some types of software. Three Open Science (BIOS) initiative aims to make types of MTAs are most common at academic insti- methods and techniques developed by scientists freely tutions: transfer between academic or research available, in return for the results gained through institutions, transfer from academia to industry, and such techniques also being freely released. transfer from industry to academia. 14. For a British perspective, see An Economic Analysis of 19. Issues in the Economics, Politics, and Ideology of Scientific Research Publishing, Wellcome Trust, 2003; Copyright in the Global South, The Copy/South and Scientific Publications: Free for All?, House of Dossier, ed. Alan Story, Colin Darch, Debora Halbert, Commons Science and Technology Committee, HC The Copy/South Research Group, May 2006. 399-I (2004); Bunk S. Researchers feel threatened by 20. Lessig, L. The Future of Ideas. Vintage Books, 2001, p. disease gene patents. The Scientist, 1999:13(20), 7. 6: ‘I am fanatically pro-market, in the market’s proper 15. For international statements, definitions and signa- sphere. I don’t doubt the important and valuable role tories of the open access concept, see the Budapest played by property in most, maybe just about all Open Access Initiative, 2002 (http://www.soros.org/ contexts.’ openaccess/); and the Berlin Declaration on Open 21. See summary of case at http://creativecommons.org/ Access to Knowledge in the Sciences and Humanities weblog/entry/5823 2003 (http://www.zim.mpg.de/openaccess-berlin/ 22. English summaries of the two decisions case are avail- berlindeclaration.html) . able at http://creativecommons.org/press-releases/ 16. The open access model is based on the central tenet entry/5829 and http://creativecommons.org/weblog/ that a subscriber or reader does not pay to access entry/5823. the intellectual content of the journal. The latter is the necessary condition for its status as an open Uma Suthersanen access journal. Other conditions may apply – e.g. the Reader in Intellectual Property Law & Policy payment of processing fees or the lapse of time at Queen Mary, University of London; Chair, between closed subscribed publication and open British Literary & Artistic Copyright access publishing. 17. Publishers that have adopted this approach include Association (ALAI-UK); Chair, Legal the Public Library of Science, BioMed Central and Advisory Board, Creative Commons (England Springer’s OpenChoice programme. & Wales). 18. A Material Transfer Agreement (MTA) is a contract that governs the transfer of tangible research The views stated here are those of the author alone, and materials between two organizations, when the not necessarily those of ALAI-UK or Creative Commons recipient intends to use it for his or her own research (England & Wales). Creative Commons (England & purposes. The MTA defines the rights of the provider Wales) will be relaunched in the United Kingdom in and the recipient with respect to the materials and Autumn 2007. LEARNED PUBLISHING VOL. 20 NO. 1 JANUARY 2007
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