the Irish for rights

CAO cynicism

Level8, via FlickrIt’s that time of the year when the Central Applications Office (CAO) makes offers of third level places to Ireland’s school-leavers. Places are allocated on the basis of a complex but transparent system of supply (of [level 6, level 7 and level 8] courses by third level institutions), demand (for courses by school leavers), and grades (obtained by school leavers in the second level terminal examination, the Leaving Certificate). The grades are converted into points, and the number of points of the last-admitted candidate to a course can be regarded as the cut-off for qualification for entry to that course. The race for points for College places has become increasingly utilitarian over recent years, and the headlines this morning are no different:

Stem steams ahead as students abandon the arts ship

Points for arts courses fall to a new low as students question value of such degrees

Students have been bombarded by calls to study science, technology, engineering and maths (STEM) over the past few years. The message seems to be working, as points for those courses have risen across the board for the first round of CAO offers. Points for arts courses have fallen to a new low as students question the value of those degrees, …

Also: CAO offers: Sharp points rise for courses linked to recovery – Engineering, architecture, construction and business up as arts falls to new low; Focus on construction and engineering results in higher points – Points drop across the board for arts and social science degrees; Business and technology jobs surge as over 52,000 receive CAO offers – Students target courses to give them skills to travel globally.

If the drop in points for Arts, Humanities and Social Science (AHSS) courses is because of a drop in demand, and if that drop in demand is because students are questioning the value of such degrees, this would be, to say the least, unfortunate. It reminds of me of the definition of a cynic given by Lord Darlington in Oscar Wilde’s Lady Windermere’s Fan as someone “who knows the price of everything, and the value of nothing”. As Paul Bernal wrote in another context:

As with so much of what Wilde wrote or said, it’s more than just a nice turn of phrase – it hits at the heart of the problems of society. Lady Windemere’s Fan was written in 1892, but what Wilde wrote is even more true now than it was 122 years ago. These days, our government, our businesses, our media and more seem to be dominated by what Wilde would have described as cynics. The idea that anyone in the ‘real world’ should even consider ethical, moral, philosophical or cultural values to be on a par with financial or economic ‘value’ appears whimsical, sentimental, even romantic. Hard-nosed, sensible, rational, practical people ‘know’ otherwise. It’s the economy, stupid.

So it is with school leavers cynically eschewing AHSS courses for hard-nosed, sensible, rational, practical STEM qualifications. Eighteen, the usual age of school-leavers, is much too young to be cynical. And a university education is much too valuable and inclusive to be seen in such cynical, utilitarian terms. As Julian Coleman wrote in yesterday’s Observer:

‘Value for money’ can’t be the only measure of university

In the middle of the 20th century, the conservative political philosopher Michael Oakeshott gave one of the most sublime accounts of the value of a university education ever written. It is worth quoting at length from The Idea of a University [summary; pdf], which was published in 1950. Partly because of the beauty and humanity of the prose, but also because you just don’t get thinking like this any more …

The characteristic gift of the university … is the gift of an interval. Here is an opportunity to put aside the hot allegiances of youth without the necessity of at once acquiring new loyalties to take their place. Here is a break in the tyrannical course of irreparable events; a period in which to look around upon the world and upon oneself without the sense of an enemy at one’s back or the insistent pressure to make up one’s mind; a moment in which to taste the mystery without the necessity of seeking a solution. And all this, not in an intellectual vacuum, but surrounded by all the inherited learning and literature and experience of our civilisation …

The gift of an interval? One wonders what Oakeshott, who died in 1990, would have made of last week’s coverage of A-level results day. This annual landmark is now treated not as a threshold to be crossed into a protected world of ideas, but as the starting gun in a debt-fuelled race for economic preferment in later life.

The coverage of the CAO points and offers today is exactly the same. And it is misplaced, especially as regards AHSS courses. As my colleague, Prof Darryl Jones, the devastatingly witty, suave, and irresistible Dean of Arts, Humanities and Social Sciences in Trinity College Dublin, argues

The Arts: Studying arts can make you irresistible!

The first reason, and by far the most important, to study the arts is because you love them, or are at least curious about them and want to find out more. I can’t stress how important it is to study something with which you feel passionately engaged. … Study the thing you love. …

The arts are important because they are what make us human. … Art encourages individual, personal responses. That’s why repressive regimes are always so hostile towards the arts. … And for good reason. Art bursts through the confines of ideology, seeks freedom. … We can tell the difference between art and propaganda.

Or we can if we are educated to do so. All education should instil the virtues of critical thinking. An education in the arts certainly does so. … More than ever, we need a workforce and an electorate which is critically and culturally literate, intellectually self-confident, independent, and articulate.

As if this weren’t enough, studying the arts will make you, at a stroke, devastatingly witty, suave, and attractive, if not downright irresistible. That, of course, is the real reason why I chose to study them.

And, as a Social Science, this is true of law as well, he says modestly. School leavers should abjure cynicism and utilitarianism and instead embrace their interests and their instincts in their third level choices. It will be better for them, and for society, in the long run.

Mrs Lawless and the costs of going to law

Mr Justice Max BarrettI have already noted on this blog the comments of Barrett J (pictured left) in Traynor v Guinness UDV Ireland [2015] IEHC 732 (24 November 2015) [1] that “we have now an expensive court system that remains alien to many and truly accessible to increasingly few”. He recently returned to this theme in Burke v Lawless [2016] IEHC 455 (29 July 2016) (emphasis added):

1. In 2010, Ms Lawless engaged a firm of solicitors to do certain work for her. Apart from an initial down-payment of €5,000, she has not paid a cent for the work that followed. That work was not un-extensive. It related to a dispute concerning an auction of certain lands. Ms Lawless maintained that despite being the highest bidder at an auction of the lands, the lands were not sold to her. Legal proceedings were initiated. Junior and Senior Counsel were retained. Eventually, the proceedings settled. But in all the ‘to-ing and fro-ing’, Ms Lawless ran up legal fees of €176,433.65.

2. A comprehensive fee note issued to Ms Lawless on or about 7th November, 2011, and has been placed before the court in evidence. This indicates that the fees payable by Ms Lawless comprise, inter alia, €120k of solicitors’ fees, almost €40k of fees for Senior Counsel, and €24k for junior counsel. These are enormous, though not at all untypical, fees that point to a continuing deficiency in our legal system whereby full and proper legal representation, at least in civil proceedings, is increasingly a boon that is properly affordable by the few who are rich, and a bane to be feared by the many who are not.

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The Copyright and Related Rights (Miscellaneous Provisions) Bill 2016 is announced

Screen Shot 2016-08-04 at 14.53.40
Speaking at the National Council for the Blind of Ireland, the Minister for Jobs, Enterprise and Innovation, Ms Mary Mitchell-O’Connor TD, today announced the long-promised Government approval for the drafting of a General Scheme of Bill entitled the Copyright and Related Rights (Miscellaneous Provisions) Bill 2016. The Bill is in response to the Modernising Copyright Report published in October 2013, compiled by the Copyright Review Committee appointed in 2011. But the response does not cover all of the issues in the Report. Instead, the main issues covered the Heads will include:

• Facilitating access to books for persons with a disability, paving the way for ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled;

• Improving educational use, to permit teachers use modern day technology such as whiteboards without fear of infringing copyright, and to facilitate distance learning and education over the internet, in line with the changing provision of education and training in Ireland;

• Improving access to the Courts system for intellectual property claims, in particular to facilitate lower value IP infringement cases to be brought before the District and Circuit courts;

• Extending current copyright exceptions to promote non-commercial research including the introduction of a Text and Data Mining copyright exception into Irish law;

• Extending current copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis;

• Creating an exception for use of copyright works to allow for caricature, satire and parody;

• Extending the concept of fair dealing in copyright works for purposes of news reporting;

• Making it an infringement, in the context of photographs, to tamper with metadata associated with the photographic works; and

• Allowing libraries, archives and educational institutions to make a copy of a work in its collection for preservation purposes and for catalogues for exhibitions, and so on.

All that is available is a press release. Draft heads of a Bill as approved by the Government are not usually published, and that is the case here too. Instead, they have been sent to the Office of Parliamentary Counsel for formal drafting in line with the policy intentions approved by the Government. And so we will have to wait a little longer for the Bill, to see for certain what has been included, and to be sure what has been left out. But there are some notable omissions from the draft Bill included in the Modernising Copyright Report:

• the Copyright Council – a central recommendation in the Report was the formation of a Copyright Council of Ireland, as an independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and supported and underpinned by clear legislative structures. It would have provided a forum in which the Irish copyright community could work towards solutions on difficult copyright issues. And it could have established a Digital Copyright Exchange (to expand and simplify the collective administration of copyrights and licences), a voluntary alternative dispute resolution service (to meet the need for an expeditious dispute resolution service outside the court system), and an Irish Orphan Works Licensing Agency (to provide a solution to the problem of orphan works);

• Users and consumers – the Report contained a range of recommendations relating to users and consumers; in particular, it recommended amending the current definition of fair dealing to allow Irish law to reconnect with developments on fair dealing elsewhere in the common law world, and it recommended the introduction of the full range of private use exceptions permitted by EU law. The silence on these issues is ambiguous. On the one hand, it may be that they are not headline issues apt for a press release; on the other hand, it may be that they are indeed to be omitted from the Bill;

• Linking – Interconnectedness by linking is at the very heart of the internet, so the Report recommended that linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy. It further recommended that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link; and

• Innovation, and Fair Use – the Report recommended the introduction of tightly-drafted and balanced exceptions for innovation and fair use. The innovation exception would have provided that it should not be an infringement of copyright to derive an original work which either substantially differs from, or substantially transforms, the initial work. The fair use exception would have been very circumspect substantially different from the US doctrine, and based on existing exceptions.

How long will it take the Office of the Parliamentary Counsel to draft the Bill? How long is a piece of string? On the one hand, the Report contains a very detailed draft Bill, so there is – at the very least – a roadmap for the route to legislation. On the other hand, the Oireachtas Committee on Jobs, Enterprise and Innovation may wish to have pre-legislative scrutiny (explanations (pdf) here and here) of the Bill, to scrutinise to general scheme of the Bill and report back to government before a final version of the Bill is drafted, so there is – at the very least – the possibility of a detour on that route. It is fantastic news that we have reached this point; and I shall just have to be patient, waiting for the next steps on that route.

Is the President’s spouse “constitutionally required to be perfect”?

Mrs Higgins and President Higgins, via tcd.ie

Mrs Higgins and President Higgins

I came across the above quote in a newspaper article over the weekend. It was about Bill Clinton’s role in a Hillary Clinton White House. But it reminded me of a war of words which broke out a little closer to home a few months ago, concerning remarks made by Sabina Higgins, wife of President Michael D Higgins, to the Nursing and Midwifery Board of Ireland in Trinity College Dublin. Her ex tempore comments, about abortion, were controversial (eg here; here; here; and here) and she was immediately criticised – for the words she chose, for the point she made, and for the fact that she made it.

It is upon this last strand of criticism that I want to focus here. The headline to an article by David Quinn in the Irish Independent at the time captures the essence of this objection: The presidency must stay above the fray – otherwise you rob it of prestige. The controversy over Mrs Higgins’s remarks poses the question whether the spouse of the President should be subject to similar bounds. At the time, there was a great deal of public support for this position. In an online poll for the Claire Byrne Live television show, 46% of respondents felt that Mrs Higgins should not have said anything about abortion, while 42% thought it was appropriate, and 12% didn’t know.

As to whether the spouse of the President should be subject to bounds similar to those pertaining to the office of the President, I have, in the past, on this blog here and here) discussed controversies which have arisen when the President has made remarks which seem to push the bounds of his office (Laura Cahillane has recently published an excellent post on the issue of the President, Public Statements and Political Controversies). It has been argued there too that the presidency must stay above the fray, so as not to rob it of prestige – in particular, it is argued that it is reasonable to expect that the President would refrain from criticising in public a government decision or policy. On the other hand, it has been argued that the Constitution does not confine the President to discursive platitude – in particular, it is argued that it is well within the presidential ambit to articulate broad matters of national concern. Given that the divisive nature of the debate around abortion, it is plainly a broad matter of national concern. And it is a nice question whether Mrs Higgins’s comments went further and amount to public criticism of government inaction. In my view, however, there must be a very strong reason to restrict freedom of expression, whether it is the rights of a person (such as the President’s spouse) to comment on a political matter, or the right of a politician (such as the President) to comment on a personal plight. As the headline to an article by Liz O’Donnell in the Irish Independent puts it: we didn’t elect the President to keep his mouth shut on big issues. On that standard, there is nothing to prevent Mrs Higgins from saying what she said, or for contributing to other public issues. Read more

What should, and should not, be in a National Anthem Bill?

Harp via wikipedia and music notes via pixabayThis is a call for help. I would like suggestions as to what should, and should not, be in a National Anthem Bill – either in the comments below, via the contact form on this blog, by email, on a postcard, or even by means of carrier pigeon (or messenger raven) …

In four recent posts (here, here, here, and here) I’ve been looking at various issues around the national anthem. The context has been Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016, but the analysis has ranged much more widely than that. And it has become clear to me that there are lots of gaps in the story of our national anthem. Some of those gaps could be filled by legislation, and so I am trying to work out what that legislation might provide.

I am conscious that, to a man with a hammer, every problem looks like a nail; and to a lawyer, every problem looks like it can be solved with legislation. A hammer isn’t always the solution to DIY problems, and legislation isn’t always the solution to social problems. So, I want to identify not only the issues around the anthem that could admit of a legislative solution, but also the issues where legislation would be unsuitable or ill-advised. Hence my call for suggestions as to what should, and should not, be in a National Anthem Bill.

I agree with Senator Daly that the anthem should be treated with respect and dignity, and that legislation could protect it from inappropriate commercialization, but I do not think that copyright is a suitable means to this end. In a previous post, I commented that if legislation is to be used for this purpose, then it should set out exactly what is protected, what that protection means, and what the standards of protection are. Hence, rather than just criticizing, I would like to be able to offer an alternative solution that respects the national anthem, and protects it from inappropriate commercialization, but without going too far.

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Reform of the law of defamation – the defence of honest opinion

Honest opinion, via A Perfect World websiteIn Northern Ireland, the Minister for Finance has just published a Review of the Law of Defamation, prepared for it by Andrew Scott (Associate Professor of Law, LSE). Prof Scott had prepared a consultation paper for the Northern Ireland Law Commission (NILC) in November 2014. The consultation period closed on 20 February 2015. The NILC itself closed on 31 March 2015. So Prof Scott’s final Report (pdf) was submitted directly to the Ministry for Finance, which has just published it. The Report builds on the work of the NILC, draws on the consultation responses that it received, assesses the recent experience of the law of defamation in England and Wales under the Defamation Act 2013, and sets out recommendations for reform of the law of defamation in Northern Ireland. Most of the recommendations require legislation by the Northern Ireland Assembly, so a Bill to this effect is included as Appendix 1 to the Report. A second draft Bill that would merely emulate the 2013 Act in Northern Irish law is included as Appendix 2.

The Report recommends that, to a significant extent, measures equivalent to the provisions of the 2013 Act should be introduced into Northern Irish law. However, one of the substantial changes from the 2013 Act relates to the proposed new defence of honest opinion. In section 3 of the 2013 Act, the defence of honest opinion is as follows:

(1)   It is a defence to an action for defamation for the defendant to show that the following conditions are met.

(2)   The first condition is that the statement complained of was a statement of opinion.

(3)   The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.

(4)   The third condition is that an honest person could have held the opinion on the basis of—

(a)   any fact which existed at the time the statement complained of was published;
(b)   anything asserted to be a fact in a privileged statement published before the statement complained of. …

The Report recommends that a drafting error be corrected, and that the section should be substantively amended in two further ways

  • it should be possible for a publisher to rely not only on true underpinning facts or privileged statements as the basis for his or her opinion, but also on “facts” that he or she “reasonably believed to be true at the time the opinion was published”. This expands the defence, especially so as to defend the position of social media commentators …
  • it is recommended that it be made clear that the defence extends to cover “inferences of verifiable fact”. This is intended to clarify an aspect of the defence that is agreed to be the current law by many legal commentators, but on which there remains a measure of uncertainty in English law …

In Ireland, section 20 of the Defamation Act, 2009 introduced a similar defence of honest opinion, but required that the opinion relate to a matter of public interest (section 20(2)(c)). Given that there is a public interest defence elsewhere in the 2009 and 2013 Acts, there is no need for a public interest requirement in the defence of honest opinion. The Irish section should be amended to come into line at least with the 2013 Act, if not with the NI proposals. Their publication today is very welcome indeed, and Prof Murray is to be commended for his excellent Report. The Irish Act is in need of revision, but none is envisaged in the Government’s Legislation Programme (pdf). Nevertheless, a review of the operation of the 2009 Act is due, and it is to be hoped that the English experience of the 2013 Act and the Northern Ireland Report will be taken into account – in particular, to make the defence of honest opinion workable.

Copyright and the National Anthem – Bonus Links

Bonus, via flickrMy last three posts (here, here, here) have looked at some copyright issues around the national anthem. Their immediate context was Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016 (effectively reviving a Bill that he had introduced into the last Seanad earlier in the year). To provide a little lighter reading on the topic, here are 4 sets of bonus links about the copyright, the anthem, or both.

Bonus 1: Alex Marshall (blog | twitter), author of Republic or Death!: Travels in Search of National Anthems (Penguin | Amazon), writing in the Irish Times (h/t Alex’s blog), put “The Soldier’s Song” into the context of other national anthems. It’s a very entertaining piece. While he bemoans the relative obscurity of Peader Kearney and Patrick Heeney, he consigns Liam Ó Rinn to oblivion – he finishes the piece with the first line of “Amhrán na bhFiann”, but he doesn’t name-check Ó Rinn at all!

Bonus 2: I was on the the Marian Finucane show on RTE Radio 1 the Sunday morning before last (listen here), on The Last Word with Matt Cooper on TodayFM the following Monday evening (listen here), and on the Shaun Doherty Show on Highland Radio the following Wednesday morning (listen here until the end of the week). On the latter two shows, it was just the presenter, Senator Daly, and myself, However, on the Marian Finucane show, as Marian was on holiday, the show was hosted by Brendan O’Connor; the others on the panel in the studio were Philip McCabe (Director, MABS), Brian Hayes (Fine Gael MEP for Dublin) and Sinead O’Carroll (News Editor, theJournal.ie); and we were joined on the phone by Senator Daly (listen here). At the end of the discussion on the National Anthem, we were joined by Stuart Clark (Deputy Editor, Hot Press) and writer & journalist Sinéad Gleeson, to discuss the UK’s 60 official biggest selling albums of all the last 60 years (listen here).

The discussion covered not only what makes it on to such a list (greatest hits, recent releases) but what doesn’t (almost any musically influential pop or rock album ever), and some of the copyright stories behind the albums. It seems you can’t have a high-profile song these days without its accompanying copyright suit, whether it’s “Happy Birthday” being held to be out of copyright, to Robin Thicke and Pharrell Williams’s “Blurred Lines” being held by a jury to have infringed copyright in Marvin Gaye’s “Got to Give It Up”, or Led Zeppelin’s “Stairway to Heaven” being held by a jury not to have infringed copyright in Spirit’s “Taurus”. As to copyright stories from the albums on the list, Number 2 is Abba “Gold – Greatest Hits”, which includes “Chiquitita”, from which Abba shared the copyright and thus royalties with UNICEF. Number 3 is the Beatles’ “Sgt Pepper’s Lonely Hearts Club Band”, some of the most lucrative US copyrights in which are owned by Michael Jackson’s estate, as Jackson outbid Paul McCartney in 1985, though McCartney is now working on various means of getting them back.

However, probably the two most famous pop music copyright infringements of all time feature on that top 60. At number 10 is Queen’s “Greatest Hits, Vol 2”, which includes Queen/Bowie’s “Under Pressure”, copyright in which was infringed by Vanilla Ice in “Ice Ice Baby”. The case settled out of court, but Mercury and Bowie now have writing credits on (and therefore get royalties from) “Ice Ice Baby”. At number 18 is the Verve “Urban Hymns”, which includes “Bittersweet Symphony”, which infringed the copyright in the Rolling Stones’ “The Last Time”. Again, the case settled out of court; but the writing credits for “Bittersweet Symphony” are now “Jagger/Richards/Ashcroft”; and all of the royalties go to the music company that owns the rights to “The Last Time”.

Bonus 3: There’s a Trinity connection with the anthem. For many years, the most familiar version was probably the orchestral arrangement used by the national television station, RTÉ, at the close of transmission each day. It was composed in 1961 for the launch of RTÉ’s television service by Brian Boydell (1917-2000), Professor of Music at Trinity; this is the version that was in use from 1961; this is a version that was used during Easter Week 1966; and this was the last closedown version:

Bonus 4: Here’s a 25-minute documentary on the anthem, produced by One Productions for the national Irish language television channel TG4. It is mostly in Irish with English subtitles, though some of the contributions are in English:


Copyright and the National Anthem – preventing a tangled future, avoiding another gap of danger

Wilhelmus, via WikipediaA national anthem is a hymn or song expressing patriotic sentiment, from prayers for a monarch, to allusions to nationally important uprisings, to expressions of national feeling. It is usually recognised by a nation’s government as the official national song, though it often emerges by convention through use by the people. “Kimigayo” is the Japanese national anthem, and its lyrics are the oldest text of a national anthem in the world, dating from an anonymous ninth century poem (though the anthem was not formally legislatively established until 1999). The oldest musical setting of an anthem still in use is the “Wilhelmus“, the Dutch national anthem (an early version of which is pictured above left). It was written between 1568 and 1572 during the Dutch Revolt against Spanish rule; and, although it was the de facto Dutch anthem for almost four centuries thereafter, it was only officially adopted in 1932.

Given their antiquity, there can be no copyright issues with the Japanese or Dutch anthems. The Irish national anthem, on the other hand, is a different story. In my previous two posts (here and here), I sought to unravel the fascinating but tangled story of its copyright, some of which I discussed on the Marian Finucane show on RTE Radio 1 last Sunday morning (listen here) and on The Last Word with Matt Cooper on TodayFM on Monday evening (listen here). The immediate context of those discussions was Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016 (effectively reviving a Bill that he had introduced into the last Seanad earlier in the year).

The chorus of “The Solider’s Song” (composed in 1907; words by Peadar Kearney (1883-1942); music by Patrick Heeney (1881-1911)) was formally adopted as the national anthem in 1926. By the end of the 1930s, the chorus of the Irish language translation “Amhrán na bhFiann” (words by Liam Ó Rinn (1886-1943), set to the Heeney’s music) eclipsed the English language version, and has now completely taken over as the national anthem in popular usage, though it seems never to have been formally adopted by the State. In my previous two posts (here and here), I explored the copyright history of all these versions of the anthem. The stories are tangled, but the position is now quite clear. After two deals – in 1933 and 1965 – the State owned the copyright in the music and English language version (“The Soldier’s Song”) of the national anthem, and this copyright persisted until 1 January 2013. If, as seems likely, Ó Rinn was an employee of the State when he composed “Amhrán na bhFiann”, then the State owned copyright in it until 1 January 1974. If, however, Ó Rinn was not an employee of the State at that stage, then his copyright in it will have persisted until 1 January 2014. Hence, all copyrights in the national anthem have now come to an end. Senator Daly’s Bill would revive at least some of them; and, in this post, I want to explain why I think that this is a thoroughly bad idea. Read more

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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