Copyright/Intellectual Property

Industry Out of Harmony With YouTube on Tracking of Copyrighted Music

29 June 2016

From The Wall Street Journal:

The music industry is locked in an epic battle with YouTube, the most popular on-demand service, over the declining royalty rates the site pays per stream as it grows, and the difficulty in detecting copyrighted material from the mass of videos uploaded on the site.

The site voluntarily offers record labels a system to automatically block, monetize or mute their music on the site, matching audio files with 99.7% precision, the service says, and a chance for labels to cash in on user-uploaded content instead of merely resorting to sending takedown notices.

But many music rights holders say the YouTube system isn’t foolproof and requires them to conduct a laborious, manual search daily to track content and collect royalties. They worry that YouTube gains an unfair advantage with the lower rates it pays for music over other on-demand streaming services such as Spotify and Apple Music, which pay far more per play but together have relatively fewer paying subscribers at 68 million, according to the International Federation of the Phonographic Industry’s latest report.

The music industry believes its future lies with these streaming services rather than YouTube, which they fret is conditioning fans to not pay for on-demand tunes.

But YouTube, a unit of Alphabet Inc., with its more than 1 billion users, packs clout and reach that the industry can’t ignore. YouTube says it has paid about $3 billion to music companies since it launched a decade ago, and today half of its payout comes from user-generated content identified by its system called Content ID.

. . . .

Although the Alphabet unit pays out more overall each year, it now pays an average of eight one-hundredths of a penny ($0.0008) per play, and less than six one-hundredths ($0.0006) of a penny for user-generated content, down roughly 20% from a year ago, people familiar with the matter said.

The free tiers from SoundCloud and Spotify, by contrast, pay at rates up to six times the rate YouTube offers for user-uploaded videos, one rights holder said. Another said it gets an average of 35% more per play ($0.0011) from these free services than it does from YouTube videos. Paid subscription services pay even more per play, according to rights holders.

. . . .

But many in the music industry say the system isn’t automatically identifying many of their recordings when users have altered or combined them—or occasionally for no apparent reason at all. Furthermore, labels charge that Content ID doesn’t scan the YouTube channels managed by major TV networks and smaller networks such as Fullscreen and AwesomenessTV, many of which feature amateurs covering popular songs.

Link to the rest at The Wall Street Journal

Led Zeppelin Wins Copyright Infringement Suit

23 June 2016

From ABC News:

A jury today found that Led Zeppelin had not plagiarized the opening riff of “Stairway to Heaven.”

After a day of deliberation, the ruling came back that there was no copyright infringement. An eight-person jury delivered the verdict, ruling there was no “extrinsic similarity between Spirit’s ‘Taurus’ and ‘Stairway,'” following five days of testimony from music experts, a former Spirit band member and the surviving members of Led Zeppelin.

Link to the rest at ABC News

Copyright-free material edging out Canadian educational texts

20 June 2016

From CBC News:

Are Canadian students being forced to learn from foreign textbooks?

That’s the concern of John Degen, executive director of the Writers’ Union of Canada.

“I hear again and again from professors and from teachers saying that they simply don’t feel they have access to enough Canadian works right now,” he told CBC News.

“And they have to go elsewhere. Their institutions are insisting that they use only free material, and a lot of free material is coming from outside of Canada.”

. . . .

The reason, according to Degen, is the recent changes made to Canada’s copyright laws that exempt educational institutions from paying certain fees they used to pay.

Those changes may have been great for shrinking school-board budgets, but they’re hurting Canadian writers and publishers, some of which are getting out of the business altogether or vastly reducing what they print.

As authors gathered this week for the first-ever Canadian Writers’ Summit in Toronto, getting paid for their work was on their minds. It was standing room only at one panel highlighting that, in the age of the internet, the pressure to loosen copyright laws is growing worldwide.

. . . .

[W]riters in Canada are making less than ever, with 80 per cent earning an income (from their writing) below the poverty line, according to a 2015 Writers’ Union survey of its members and other writers’ incomes.

. . . .

The effect is not just being felt by writers. A few years ago, Emond Publishing sold more than $1 million worth of books to high schools annually. Now, said president Paul Emond, it’s dropped to about $100,000.

“That’s what falling off a cliff in the publishing business looks like,” he said.

. . . .

Schools that formerly bought a class set of 20 to 30 books — for use by perhaps hundreds of kids — started buying just a single copy of the same book, Emond explained. They then scanned or photocopied portions to distribute to students.

. . . .

The issue dates back to 2012, when Canada’s Copyright Act was updated and education was added to the list of fair dealing exemptions from paying copyright royalties. A Supreme Court ruling the same year specified that “short excerpts” for educational purposes could be copied without payment.

That allowed schools and universities to stop paying fees to copy and use excerpts of authors’ works. Educational associations have defined “short” to include up to 10 per cent of a work, a chapter of a book or an article from a periodical.

Link to the rest at CBC News and thanks to Dave for the tip.

If Led Zeppelin Goes Down, We All Burn

18 June 2016

From The Daily Beast:

[Led Zeppelin] is back in the public eye, defending itself in court against a new and even more potentially damaging (if equally unsurprising) allegation: namely, that “Stairway to Heaven,” the band’s signature tune and 31st on Rolling Stone’s list of the “500 Greatest Songs of All Time,” was stolen from a now-forgotten psychedelic rock band called Spirit.
The trial, which began on Tuesday, may seem to many onlookers like a classic David-and-Goliath scenario, in which the scrappy underdogs finally have a chance to settle the score with the big, bad superstars who took all the credit for their unsung work of musical genius. While this would make a great straight-to-VH1 movie (and I’m certain it will, if Spirit ultimately prevails), the reality is of course more complex, and the stakes are actually far higher than mere writing credit and a couple million dollars.

. . . .

In a nutshell, Skidmore claims that the distinctive acoustic guitar riff at the beginning of “Stairway” (recorded in 1970-71) was taken directly from a Spirit song called “Taurus,” which Led Zeppelin heard while on tour with the other band in the winter of 1968-69. Though Wolfe never made an infringement claim during his lifetime, the complaint cites an interview conducted shortly before he died, in which the songwriter lamented that “it was a rip-off. And the guys made millions of bucks on it and never said, ‘Thank you.’”

. . . .

To begin with, while the riffs are similar, they’re not actually the same. Any guitarist worth her salt could tell you as much, and even a layperson looking at the notes printed on a page would have to agree they’re two distinct melodies. Though this might sound like quibbling, it makes a huge difference when it comes to copyright law. That’s because the law doesn’t protect ideas, only the specific expression of an idea. This is why the Hunger Games, Maze Runner, and Divergent franchises can happily coexist on the screens at your local IMAX theater. And the fact that Suzanne Collins doesn’t own the exclusive rights to “dystopian post-apocalyptic young adult science fiction with a romantic element” is good for everyone involved—more entertainment for us, more employment for writers, actors, and filmmakers, and more profit for big media companies.

Second of all, according to copyright law, you can only claim infringement against someone to protect an original work of authorship. For instance, if I had written a story about a man named Noah who builds an ark to save humanity and a bunch of animals from a flood, I couldn’t sue Darren Aronofsky for making a film with the same plot and characters. That’s because it wasn’t my idea to begin with; we both based our work on the Bible, which was itself probably based on older myths. In the language of copyright law, the Biblical tale of Noah is what’s referred to as “prior art”—something that predates the allegedly infringed work, undermining the validity of the infringement claim altogether.

The same applies in the case of “Stairway to Heaven”; even if Led Zeppelin did write the song immediately after hearing “Taurus,” it’s not clear that what they took was original to the older song. Both tunes are based on a descending chromatic A-minor harmonic structure, which basically means playing one of the most common chords in Western music (a minor triad), then moving the lowest note one piano key at a time for a few bars, from the root down to the fifth. This trick, which is sometimes referred to as a “line cliché” or a “lament bass,” has been around for hundreds of years in the classical music world, and appears in the work of Henry Purcell, J. S. Bach, and countless others.

Link to the rest at The Daily Beast and thanks to Matt for the tip.

Author Sues Universal Over Musical Theater Adaptation of ‘October Sky’

7 June 2016

From Yahoo Movies:

The author of the New York Times best-seller Rocket Boys is suing Universal Pictures for overstepping the life rights he granted in the 1990s and shutting down a musical adaptation of his book in favor of launching its own, according to a complaint filed Thursday in Los Angeles County Superior Court.

Homer Hickam Jr. says he agreed to give Universal the rights to one book to adapt into one film, October Sky.

Now he is suing Universal, and its president James Horowitz and vp of live theatricals Christopher Herzberger, for a host of claims including breach of contract, fraud, misappropriation and unfair competition. Hickam is seeking at least $20 million in damages, an injunction to shut down the October Sky musical and a declaration from the court that Universal does not have any rights to his life story other than the right to make the original 1999 film.

Rocket Boys is the story of Hickam’s life, centering on the family conflict surrounding his decision to build rockets instead of entering the coal mining business.The author claims he sold that story to Universal in 1996, and his now-deceased literary agent Mickey Freiberg assured Hickam that his sequels were protected and reserved, that the agreement was for one film only and that Universal would have to provide significant payment if it wanted to remake the movie or create a new project.

A decade later, Hickam developed and produced Rocket Boys into a live stage musical with the approval of Universal, according to the lawsuit. In 2015, Universal decided to create an October Sky musical, purportedly based on the film and Hickam’s memoir, and has shut down the author’s stage show.

“Universal has demanded that Hickam cease and desist in developing, producing and performing the Rocket Boys musical and accept a complete gag order that would punish him if he ever said a word about Universal’s wrongful and improper conduct,” states the complaint. “Universal has taken the completely fallacious position that Hickam has optioned all rights to Universal to make any and all motion pictures or live stage productions arising from any and all stories he may write about his life.”

Link to the rest at Yahoo Movies and thanks to Meryl for the tip.

PG will observe that deceased agents are not very useful for determining the meaning of ambiguous contract clauses.

If an author contractually grants rights to his/her book for the full length of the copyright (the remainder of the author’s life plus 70 years in the US and similar durations in other western countries), everybody involved in creating the contract will be dead before the contract ends. This is one of the many reasons for getting the language of the contract exactly right.

Of course, the consequences of poorly-drafted contract language would have fewer potential adverse consequences for the author if the contract’s duration was a more reasonable period of time. A misunderstanding that impacts an author for three years or five years or seven years is less serious than one the author will never outlive.

PG will also observe that the contracts of KDP and other ebook sales channels of which PG is aware may be terminated by either party at any time. This is not to say that authors should not take their KDP contracts seriously and understand the obligations contained therein, but an author who wants to take their book in a different direction can easily do so.

Stealing Books in the Age of Self-Publishing

6 June 2016

From The Atlantic:

In the world of self-publishing, where anyone can put a document on Amazon and call it a book, many writers are seeing their work being appropriated without their permission. Some books are copied word-for-word while others are tinkered with just enough to make it tough for an automated plagiarism-checker to flag them. (Though the practice is legally considered copyright infringement, the term “plagiarism” is more widely used.) The offending books often stay up for weeks or even months at a time before they’re detected, usually by an astute reader. For the authors, this intrusion goes beyond threatening their livelihood. Writing a novel is a form of creative expression, and having it stolen by someone else, many say, can feel like a personal violation.

. . . .

There are pages on sites like Goodreads dedicated to identifying fake books, including plagiarized novels. Most of the plagiarism is happening to romance novels, which accounts for the largest proportion of ebook sales, but new cases are popping up in other genres as well, from cookbooks to mystery novels. Even public-domain classics like Alice’s Adventures in Wonderland and Dracula have been adapted and passed off as original works.

For authors, finding out their book has been plagiarized can be traumatic. This was especially the case for the best-selling author Opal Carew, who learned her serial romance Riding Steele had been plagiarized the same day her sister died from cancer. An hour after her sister passed away, Carew got an email from a friend saying the novelist Laura Harner had changed the genders of the characters in Carew’s work and published it under a different title. Apparently, Harner had done this before, stealing Becky McGraw’s novel My Kind of Trouble, switching genders, and calling it Coming Home Texas. For Carew, the news added surreal stress to her grief. “All my writing friends were sending me condolences about plagiarism, and all I could think about was my sister,” she said.

Unlike most offenders, Harner was well-known in the self-publishing community as an author of male/male romance novels. She has publicly acknowledged her actions, saying that “personal and professional issues … stretched me in ways that haven’t always been good for me.” The cases against her were settled for undisclosed amounts.

Some observers believed Harner resorted to plagiarism to keep her rankings up, Carew said. Before she was caught, Harner was considered unusually prolific, producing 75 novels in five years. Amazon rewards writers who come out with new books quickly by putting them higher in the rankings, which in turn means more sales. This policy also puts pressure on authors to write more to maintain visibility and to offset the dropping price of ebooks. “This may sound crazy, but I have 18 releases planned for this year,” Carew said. “In order to survive, I have to put out as many books as I can … If you’re living on your writing like I am, the stress can get to you.”

When a reader buys a self-published book, Amazon keeps 30 percent of the royalties and gives the rest to the authors—meaning the company makes money whether the book is plagiarized or not. A traditional publisher is liable if it puts out a book that violates copyright. But Amazon is protected from the same fate by  federal law as long as it removes the offending content.

Amazon regularly complies with this rule, and plagiarized books are removed from the site. However, it can take a while for the company to respond to complaints, which can be maddening for authors, since every day a fake book is up is a day they’re losing sales. The company spokesperson Justin O’Kelly said Amazon has a team dedicated to stopping plagiarism, but he wouldn’t go into details about their methods for fear of giving plagiarists ideas. “In the rare instance when plagiarized titles make it through, that same team makes sure they are taken down quickly, and repeat offenders are blocked,” he said.

. . . .

To be fair to Amazon, copyright infringement also occurs with other self-publishing retailers, including Barnes & Noble, iBookstore, Kobo, and Smashwords. Google Play has been accused of “rampant” piracy, with spammers selling books by Malcolm Gladwell, Sidney Sheldon, and Ellery Queen for $2.11 each. Still, Amazon has the biggest chunk of the self-published ebook market, with some estimates putting it at 85 percent. Without Amazon, few authors could make a living self publishing.

. . . .

Amazon reimburses royalties if the author can prove plagiarism, but it’s not a straightforward process. Even in cases where the company has removed books for copyright infringement, the author must provide further documentation to receive royalties. Luckily, O’Hanlon had the email from Clancy admitting guilt, which she forwarded to Amazon to receive payment. Still, most authors won’t be lucky enough to get a confession from their plagiarist and will likely have to hire a lawyer to get any royalties they’re owed.

Because plagiarists are driven more by financial motivations than creative or artistic ones, they tend to be repeat offenders.

Link to the rest at The Atlantic and thanks to Bill for the tip.

Of course, plagiarism and copyright violations were unknown before Amazon and indie publishing.

Martin Luther King plagiarised part of a chapter of his doctoral thesis. George Harrison was successfully sued for plagiarising the Chiffons’ He’s So Fine for My Sweet Lord. Alex Haley copied large passages of his novel Roots from The African by Harold Courlander. Princess Michael was accused of plagiarism over her book on royal brides. Jayson Blair, then a reporter for the New York Times, plagiarised many articles and faked quotes.

In 1997, less than six months after winning the Booker prize, Graham Swift’s Last Orders was at the centre of accusations that the author had crossed the line between inspiration and plagiarism by “directly imitating” an earlier work, the 1930 novel As I Lay Dying by William Faulkner. Confronted with the accusations, Swift said his book was an “echo” of Faulkner’s.

Link to the rest at A History of Plagiarism

Certainly, a modern-day traditional publisher would never publish a plagiarized manuscript.

How about Barnes & Noble and other physical bookstores? Do they refund any part of the proceeds received for selling a plagiarized book like Amazon does?

“Immature poets imitate; mature poets steal. Bad poets deface what they take.” – T.S. Eliot

Madonna Gets Victory Over ‘Vogue’ Sample at Appeals Court

3 June 2016

From Billboard:

On Thursday, the 9th Circuit Court of Appeals made it easier for musicians to sample small portions of song recordings by giving Madonna and her producer Robert “Shep” Pettibone a victory in a long-running lawsuit over the 1990 hit “Vogue.”

The decision affirms a 2013 ruling by a California federal court that held on summary judgment that a 0.23 second sampling of a horn hit from the 1976 song called “Love Break” was de minimis, meaning small enough to be trivial.

“After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit,” writes 9th Circuit judge Susan Graber in today’s opinion. “That common-sense conclusion is borne out by dry analysis. The horn hit is very short—less than a second. The horn hit occurs only a few times in Vogue. Without careful attention, the horn hits are easy to miss. Moreover, the horn hits in Vogue do not sound identical to the horn hits from Love Break… Even if one grants the dubious proposition that a listener recognized some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred.”

. . . .

“A computer program can, for instance, ‘sample’ a piece of one photograph and insert it into another photograph or work of art,” states the opinion (read here in full). “We are aware of no copyright case carving out an exception to the de minimis requirement in that context, and we can think of no principled reason to differentiate one kind of ‘physical taking’ from another.”

Link to the rest at Billboard

Consumers believe they have more rights than they really do in digital media

27 May 2016

From Chris Meadows at TeleRead:

To buy or to license? That is the question that’s stumped a lot of e-book and other digital media consumers over the years, recently culminating in an author’s lawsuit against Simon & Schuster over sales versus licensing revenue. But just how badly has it stumped consumers? A pair of law school researchers undertook to find out, and the 60-page report on their study is fascinating reading.

Called “What We Buy When We ‘Buy Now,’” the study of almost 1,300 online consumers divided its participants into four groups, presenting each of the four with a different purchase option from a fictitious Internet retail store: a “buy now” button for digital media, a “license now” button for digital media, a notice listing the various things they could and couldn’t do with the digital media, and a “buy now” button for physical media. Afterward, the participants answered some questions about what rights they believed they had in the media they bought: the rights to keep, sell, gift, lend, copy, etc. said media.

. . . .

[C]ustomers presented with all three digital media purchase options by and large believed they had considerably greater ownership rights in their digital media than they actually do, though the ones who got the list of rights had the lowest level of misunderstanding. Conversely, the people who bought the physical media had the best understanding of the rights they had in it, but many of them believed they had fewer rights than they did. The researchers concluded that getting online stores to move to a rights list rather than a misleading “buy now” button would work best from a standpoint of reducing those misunderstandings.

. . . .

Another part of the report looked at how much consumers value these ownership rights, and whether they would be willing to pay extra for them. It concluded that many consumers do value ownership rights enough to pay extra for them, and would use streaming services or even illegal peer-to-peer to obtain media instead of “buying” it if such rights were not provided.

. . . .

The final part of the report looks at the possibility that Internet media stores using a “Buy Now” button could constitute false advertising, and the potential remedies that consumers might have against such stores.

Link to the rest at TeleRead

Google beats Oracle—Android makes “fair use” of Java APIs

27 May 2016

From Ars Technica:

Following a two-week trial, a federal jury concluded Thursday that Google’s Android operating system does not infringe Oracle-owned copyrights because its re-implementation of 37 Java APIs is protected by “fair use.”

. . . .

There was only one question on the special verdict form, asking if Google’s use of the Java APIs was a “fair use” under copyright law. The jury unanimously answered “yes,” in Google’s favor. The verdict ends the trial, which began earlier this month. If Oracle had won, the same jury would have gone into a “damages phase” to determine how much Google should pay. Because Google won, the trial is over.

. . . .

Google’s win somewhat softens the blow to software developers who previously thought programming language APIs were free to use. It’s still the case that APIs can be protected by copyright under the law of at least one appeals court. However, the first high-profile attempt to control APIs with copyright law has now been stymied by a “fair use” defense.

. . . .

“They copied 11,500 lines of code,” Oracle attorney Peter Bicks said during closing arguments. “It’s undisputed. They took the code, they copied it, and put it right into Android.”

Google countered that the Java language has always been “free and open” to use—and that included re-implementing Java APIs. Sun and its CEO Jonathan Schwartz accepted Android as a legitimate, if inconvenient, competitive product.

Link to the rest at Ars Technica

Harvard Loses Copyright Infringment Case Against Steve Elmo

25 May 2016

From Free Nampeyo:

The first entry in the Free Nampeyo blog discussed Harvard’s copyright infringement claims against Steve Elmore’s book In Search of Nampeyo: The Early Years 1875 – 1892.

. . . .

The subject of Harvard’s complaint was whether color illustrations of designs on old Hopi pottery held in the Keam collection at Harvard’s Peabody Museum violated the copyright to their black and white photographs of this pottery.  Mr. Elmore filed a motion for partial summary judgement against this claim, asking the judge to consider the law and the facts and make a ruling.  Harvard also filed a cross-motion for partial summary judgement concerning a photograph of a Kayenta or Tusayan jar that appeared on its website and also in Mr. Elmore’s book.  Both claims were decided by Judge Robert C. Brack of the United States District Court in Las Cruces, New Mexico.  Judge Brack’s ruling “Grants Defendant’s Motion for Partial Summary Judgement (Doc.92); and Denies Plaintiff’s Cross-Motion for Partial Summary Judgement that Elmore is liable for Copyright Infringement (Doc. 109). ”

. . . .

Determining whether copyright infringement has occurred can be a complex matter.  The decision depends on two basic factors.  The first is whether the underlying work is copyrightable at all and, if so, which elements of the work are subject to copyright.  The second is whether the work accused of infringing on the protected aspects of the underlying work in fact does infringe.

. . . .

Below is the photograph of the Kayenta or Tusayan jar that was the subject of Harvard’s cross-motion for partial summary judgement.  Judge Brack’s Opinion is that this is not a copyrightable photograph.


Quoting from the Compendium of U. S. Copyright Practices, third edition “as with all copyrighted works, a photograph must have a sufficient amount of creative expression to be eligible for registration”.  A photograph should not be registered “if it is clear the the photographer merely used the camera to copy the source work without adding any creative expression to the photo”.   Judge Brack argues that this photograph is just such a case.  It was not taken as a study in photography or crafted by the photographer with carefully chosen lighting and background, but rather was a “conservation image” taken as part of a “condition assessment” while the jar rested on a surface with a bunch of other stuff visible behind it.

The second part of the Opinion is more complex.  It involves 41 illustrations created from designs visible in the black and white photographs of pottery that were published in the book Historic Hopi Ceramics (HHC). Below is a comparison of two of the black and white photographs and the illustrations created from them.


First Judge Brack determined that, unlike the photograph of the Tusayan or Kayenta jar discussed above that is not copyrightable, the black and white photographs in HHC show “a minimal degree of creativity–if only a humble spark”.  Decisions were made to photograph each ceramic in the same way and to strip the backgrounds from each of the individual photographs “to emphasize the impact of the collection as a whole rather than the intricacies of each individual piece.”  However, just because a photograph is copyrightable does not mean that “every element of the work is protected….the less original the plaintiff’s work, the more the defendant must copy to infringe on the plaintiff’s copyright.”

Importantly. Judge Brack finds that the Native American designs on the pottery and the form of the pottery are not copyrightable elements of Harvard’s photographs: “Here the copyright of Historic Hopi Ceramics does not protect against copying the most prominent features in the works: the intricate pottery designs and forms achieved by a Hopi potter, perhaps Nampeyo.” (emphasis added).

Judge Brack notes that the protection of the HHC photographs is “incredibly limited” and only a verbatim copy would violate a copyright with such a small amount of creative input from the photographer.  He observes that Mr. Elmore’s illustrations highlight the designs, which are non-copyrightable elements, and switch the emphasis from the condition of the pots as a whole collection to these design elements.  The illustrations use line art and are in color.  They clean up and bring out elements of the designs, while eliminating aspects of the pottery itself, such as fire clouds.  Judge Brack writes: “Considering only the  protected elements in the Historic Hopi Ceramics photographs and Mr. Elmore’s images, reasonable minds could not find substantial similarity between the two.”

He also notes that Mr. Elmore picked individual ceramics to use in his illustrations and did his own arrangements of them, in order to emphasize comparison of the designs.  Mr. Elmore’s use of these ceramics to establish a novel thesis would give his work protection under the fair use doctrine.

Link to the rest at Free Nampeyo

PG says most judges see very few copyright infringement cases and sometimes the way such cases are handled feels a little loose. In this matter, however, in PG’s effervescently humble opinion, the judge seems to be doing a good job.

PG hopes that Harvard becomes increasingly humiliated if it continues this bizarre litigation. It was a terrible idea to bring the suit in the first place and, having so thoroughly lost the first round, the Peabody Museum should quit misspending its endowment by trying to interfere with Mr. Elmo’s labor of love in spreading knowledge of a little-known Hopi artist to a wider audience.

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