Copyright/Intellectual Property

The art of the steal: When does a copyright go too far?

30 November 2017

From CNN:

If you want to riff on the “Mona Lisa,” go ahead. Scratch a biro mustache on her. Give her a full beard if you like.

Don’t go drawing facial hair directly on the original, of course; that’s the physical property of the Louvre, and the museum’s conservators are likely to get very angry with you. But otherwise feel free to do your best or worst with Leonardo’s portrait of Lady Lisa.

You can copy it or adapt it; you can even rephotograph it and Photoshop your signature on to it if you want. The original is out of copyright, and has therefore become part of the global creative commons.

If you use a photograph of the “Mona Lisa” as a basis for your art experiments and then try to sell the results, though, be aware that that photographic image may be separately copyrighted material. (Photographers have rights, too.) And it should go without saying that if you make an exact oil-on-board copy and try to pass it off as Leonardo’s original, you may be charged with forgery. But otherwise knock yourself out. You are (almost, within carefully circumscribed limits) absolutely free.

. . . .

If you want to do something with Pablo Picasso’s “Les Demoiselles d’Avignon,” on the other hand, you are much less free. Newsweek hailed it as “the most influential work of art of the last 100 years” in 2007, when it was precisely 100 years old, but just because it was likely made before your grandparents were born doesn’t mean that it’s in the public domain yet.

In fact, that hoary old museum piece “Les Demoiselles” will be in copyright for several more decades, because copyright’s term has been extended considerably since Hogarth’s day, when it ran from 14 years from the date of first publication. Now the formula is life plus 70 — that is, until 70 years after the death of the author.

(The calculation is based on works providing for two generations of an artist’s family after his or her decease; I wish my grandparents’ pension plans had had similar provision.)

. . . .

Ownership of a physical work of art can be transferred in perpetuity (sold), but even if you had personally paid $100 million for a painting by an artist who either was still alive or had died within the past 69 years, you would not have the right to exploit the work’s image commercially; copyright would remain with the artist’s estate.

For your $100 million you get the painting with all its attendant aura, but that doesn’t mean you can stop the artist or the artist’s estate from making the same sum again by authorizing the use of its image on supermarket carrier bags. Every groceries-shopper could have a copy for small change.

. . . .

Copyright is a cornerstone of any democratic, progressive, free society that values and wishes to continue to enjoy the benefits of a knowledge-based economy.

“As the founders of this country were wise enough to see,” former register of copyrights Abraham Kaminstein told the United States Congress in the 1970s, “the most important elements of any civilization include its independent creators — its authors, composers and artists –who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.”

Most people agree that the world would be poorer without the works of Picasso, and in so far as his “creative activity” was supported by copyright, copyright must be a Good Thing.

But, you might ask, what is the “creative activity” of Picasso’s estate?

Link to the rest at CNN

Beg, Steal & Borrow: Artists Against Originality by Robert Shore, the author of the OP, is available on Amazon.

Florence court prohibits unauthorized commercial use of David’s image

26 November 2017

From IPKat:

Earlier this week the Florence Court of First Instance (Tribunale di Firenze) issued an important and interesting decision [not yet available], which has been widely reported by newspapers in Italy.

. . . .

The Avvocatura dello Stato, this being the body responsible for advising and representing the Italian state (including in legal proceedings), sued a company, Visit Today, before the Florence Court of First Instance, seeking to obtain a decision that would prohibit this from selling unofficial tickets for the Galleria dell’Accademia in Florence, also using brochures and materials depicting what is probably the most famous guest of this beautiful museum: Michelangelo’s David.

. . . .

[I]n Italy moral rights protection is perpetual and also the State [or rather, the Head of Italian Government: see Article 23 of the Copyright Act] can enforce an author’s own moral rights.

. . . .

Article 106 of the [Italian Cultural Heritage] Code sets the general principle that for cultural heritage items subject to their own control, the State, the various Italian regions and local public bodies may allow individual applicants to use such items for purposes compatible with their own cultural value.

This means that for-profit uses of cultural heritage under the responsibility of Italian public administration are not generally free: instead, they are subject to preventive authorization.

Articles 107 and 108 of the Code provide that the competent public administration may allow third-party uses of an item – including an artwork – belonging to Italian cultural heritage, subject to the payment of royalties to be determined on the basis of – among other things – the type of use requested and the possible economic gain that the user would obtain from the use of the item.

Link to the rest at IPKat

Couple featured on Gronkowski ‘erotica’ book lose lawsuit

24 November 2017

From The New York Post:

To football fans, he is the “Gronk.” To a couple unwittingly enmeshed in a less-than-literary work of fiction featuring him, it was an invasion of their privacy. To a panel of judges, it was a case dismissed.

A federal appeals court this week turned away a lawsuit by an unnamed married couple who claimed their likeness was improperly used for the self-published piece of erotic fiction — about a woman’s infatuation with New England Patriots player Rob Gronkowski.

The digitally published “A Gronking to Remember” — distributed by Kindle, Smashwords, CreateSpace and NOOK Press — was billed as the first installment in the “Rob Gronkowski erotica series.”

For the cover art, author Greg McKenna downloaded a photograph he found on the internet of an Ohio couple taken at their engagement and put it online without their permission or compensation. The couple — named in court papers as Jane and John Roe — sued, saying the work was “less than tasteful and is offensive.”

. . . .

But the cover was not necessarily illegal. The 6th Circuit US Court of Appeals found the companies had no input in the creation or design of the book’s cover page. Amazon and Barnes & Noble were among the companies providing the online publishing services.

The court found the Roes failed to prove the companies were liable over any photo rights issues.

Link to the rest at The New York Post and thanks to Noreen for the tip.

An Unsolicited Great Idea for Your Next Book

17 November 2017

From The New Yorker:

“You’re a writer?” the man said. “Hey, I’ve got a great idea for a book.”

Gompers tried to stay calm. He had become a writer for the same reason anybody did: he was incapable of coming up with ideas of his own, and he longed for a lifetime of being given them at cocktail parties. But he had been down this road before. Somebody would offer him an amazing, can’t-fail idea for a guaranteed best-seller that was certain to be made into a hit movie, and then they would demand millions of dollars in payment.

This was fair enough, but Gompers simply didn’t have the money. How could he, a mere writer, earn any money before he had an idea given to him by a total stranger? And without any money, how could he pay the millions of dollars the idea was inevitably worth? It was, in the phrase coined by Joseph Heller’s chiropractor’s cousin, a total “Catch-22.”

So Gompers tried to play it cool. “A great idea?” he said, casually. “And what would you want in return?”

“You write the book, and then I take half the profits,” the man answered.

Gompers nearly dropped his drink. The other man was going to do the heavy lifting of coming up with a one- or two-sentence logline, and all Gompers had to do was expand it into a novel-length story featuring believable characters and elegant prose—and, in exchange, the man wanted only half the profits?

There had to be a catch. Maybe the idea _wasn’t _for a guaranteed best-seller that was certain to become a hit movie. Maybe it only had a seventy-five-per-cent chance of becoming a best-seller, and then the film version would earn a few Oscars in technical categories but never really take off. Still, if he turned it down and the man later ended up at a cocktail party with John Grisham or Thomas Pynchon, Gompers would never forgive himself.

Link to the rest at The New Yorker and thanks to Anne for the tip.

Disney Accused Of Plundering ‘Pirates Of The Caribbean’ In Copyright Lawsuit

17 November 2017

From Deadline Hollywood:

A. Lee Alfred, II and Ezequiel Martinez, Jr. allege that Disney lifted “copyrighted expression of themes, settings, dialogue, characters, plot, mood, sequence of events” from their 2000 spec script entitled Pirates of the Caribbean.” Unlike many such similar suits, the duo say they submitted the script while working with Disney on their Red Hood project that the studio was interested in. During that period from late 1999 to 2000, the two writers and their producer Tova Laiter say they worked closely with Disney’s Brigham Taylor, Josh Harmon and Michael Haynes, among others. In fact, they say Disney got them into the Writers Guild as work progressed on the never-made Red Hood.

Then, soon after Laiter handed the Pirates script and a sizzle reel to Taylor on August 9, 2000, things started to sink in the relationship with Disney – especially after a copy of the screenplay and original artwork was supposedly spied on the coffee table in Taylor’s office and they were quickly hustled out of the room.

. . . .

“The opportunity to have a major film studio, such as Defendants, take a screenwriter’s original spec screenplay and turn the work into a major motion picture is the ultimate dream,” states the complaint filed Tuesday in Colorado federal court against almost every corporate aspect of Disney. “A. Lee Alfred, II and Ezequiel Martinez, Jr. almost realized that dream, but they this dream quickly turned into a nightmare, when their original work, ‘The Screenplay,’ was intentionally copied and commercially exploited by Defendant’s, creating a billion-dollar franchise, with no credit or compensation to Alfred or Martinez.”

. . . .

Very soon after that meeting in Taylor’s office, according to the suit, the writers were paid out for their Red Hood work and basically put back on a plane to Colorado, their dalliance with Disney seemingly over.

. . . .

“This complaint is entirely without merit, and we look forward to vigorously defending against it in court,” said Disney on the lawsuit against the Jerry Bruckheimer-produced five-film series based on the theme park ride that first appeared at Disneyland in 1967. Having just registered “their original works of authorship with the U.S. Copyright Office on October 3rd, 2017,” the plaintiffs do not offer any explanation as to why it took them nearly two decades to recognize a copyright infringement.

Link to the rest at Deadline Hollywood

PG says you don’t have to be Disney to become tangled up in this type of litigation.

When PG worked for a large advertising agency during the Mad Men days, instructions to employees who received creative ideas in a letter or other writing from any person outside of the agency went something like this:

  1. As soon as the employee realizes the content of a letter, document, etc., he/she will immediately stop reading and mark the place in the letter where they stopped.
  2. The employee will immediately place the letter into an envelope and securely seal the envelope.
  3. The employee will hand-deliver the envelope to the legal department, tell one of the lawyers what it contains and be available to answer questions in the event it is necessary to prepare an affidavit describing the entire sequence of events.

So what’s an author to do?

Many authors are quite comfortable in providing help to other authors, especially if they write in the same genre. Such help often includes reading first drafts, helping with plot structure, etc.

PG doesn’t want to interfere with these collegial and helpful practices. In the large majority of such cases, there is no real copyright risk. However, he suggests that authors exercise a little caution.

This is not legal advice, but here are some tips to consider:

  • Don’t be afraid to keep early drafts, outlines, character sketches, ebook files, etc., for a long time.
    • If you’re a paper person, buy some storage boxes and keep your old papers in a closet, garage, storage locker, etc. When you win the Nobel Prize for Literature, the archivist at some large institution will thank you.
    • If you’re a computer person, save digital copies of your working files, drafts, etc., in permanent digital form – DVD’s are inexpensive and will hold many, many pages of your books.
    • Storing copies in the cloud will also work. Yes, it might be possible to change the dates on some files, but computer forensics experts are pretty good at detecting such modifications and if you’re in litigation, indications that you tampered with evidence can cause a truckload of troubles to fall on your head.
  • If a friend tells you about a story he/she is writing that sounds similar to a book you’re working on,
    • Tell your friend there are some similarities between the two plots so it’s clear you are already working on your story and you don’t have anything to hide. During this conversation, you don’t have to act like you’re talking to the secret police. You can be friendly.
    • Don’t add anything distinctive to your MS that your friend told you about unless it’s already in your MS.
    • You might send emails to a couple of your uninvolved friends or associates describing what has happened.
    • Save your MS as it existed on the date of your conversation with your author friend in at least a couple of different places.
    • Think twice about providing reading services, editing, advice, etc., on your friend’s book until after yours is published.
    • If your book is going to be traditionally published, send an email or letter to your editor at the publisher explaining the situation. Keep a copy for yourself. Your publisher may have a process it wants to use in handling these types of situations.
      • Under typical traditional publishing contracts, if there is a legal dispute about copyright ownership and the publisher is named in litigation, you’ll be obligated to pay the publisher’s legal expenses in addition to your own.
  • Copyright does not protect ideas or concepts, only the expression of those ideas.
    • Boy meets girl, boy loses girl, girl gets boy has been used zillions of times in books and movies and is not protected by copyright. All the standard plot and story structures have already been used many times and are not protected.
    • Unique details – usually many more than one – are where copyright can begin to come into play.

Again, this is not legal advice. Copyright infringement disputes are often very fact-specific, so general statements are just an overview and specific elements of the works may result in an ultimate outcome that is different than might be anticipated under general statements of the law.

Who invented Game of Life?

16 November 2017

From Turnto10:

Who will win The Game of Life?

Testimony is scheduled to begin Thursday in federal court in Los Angeles in a lawsuit over who owns the rights to one of the most popular board games of all time.

 The widow of a toy inventor says her husband, Bill Markham, has been denied his legacy of creating The Game of Life, after another man, Reuben Klamer, took full credit for it. Lorraine Markham also says she was cut out of more than $2 million in royalties by Klamer and Rhode Island-based toy company Hasbro.

Since the game was created in 1959, Markham’s contributions to the development of the game have been minimized and ultimately eliminated from the history books, Markham’s lawyers wrote in a pre-trial filing.

. . . .

Both Hasbro and Klamer dispute that, arguing that Markham was merely hired by Klamer to create a prototype. Klamer owned a company with TV personality Art Linkletter, and the company was asked by Milton Bradley to come up with a game to mark the game maker’s 100th anniversary in 1960.

. . . .

Markham wants a declaration that her late husband was the sole inventor and creator of the game. She also wants the right to terminate all licensing agreements for the game, as well as a right to all future royalties.

Link to the rest at Turnto10 and thanks to Joshua for the tip.

PG suggests that if you hire someone to create (or assist in creating) something that’s going to constitute intellectual property, you should have a contract that identifies who owns the results of the creator’s labor.

When Music You Wrote Becomes a Hate Speech Soundtrack

15 November 2017

From Wired:

The video “‘70 youths of African appearance’ rampage through Fair etc etc etc” opens with a graphic of a bearded man in sunglasses with a cigar hanging out of his mouth. A name flashes on screen: Colin Flaherty. Flaherty is a prolific YouTuber and writer who chronicles violence by African Americans, which, he claims, is a much greater social problem than violence against African Americans. Quick cut to live footage of Flaherty himself, similarly sunglassed, bearded, and lighting a cigar as he narrates the 13-minute video—a mash-up of news clips and cell phone footage, each of which he represents as evidence of “a large-scale episode of black mob violence.”

You might or might not have noticed the snippet of music playing behind the intro—set to a tune that sounds like the theme song for a villainous cartoon clown. The same track appears before many of Flaherty’s videos, including “Greatest Hits: Madison goes after the worst of the worst — THEY ARE ALL BLACK” and “GREATEST HITS – Proctor & Gamble talks about black lives matter. Fantasy vs Reality edition.” While uncredited in the videos, which have a total of more than 32,000 views, Flaherty told me that the musical track was “Comic Intro” and said that he had purchased it from AudioJungle, one of the largest of the dozens of royalty-free music marketplaces online.

As online video has boomed, so has the demand for inexpensive background music. The royalty-free stock music industry has grown to meet that demand and has tailored itself to serve a clientele of video producers and other media makers who need content that’s cheap, reusable, and free of legal strings. Through these platforms, a professional quality track costs as little as a fancy cup of coffee.

Today, millions of cheap tracks can be purchased from massive marketplaces that serve as the middleman between buyers and artists. It’s a quick way for a talented musician to make a small buck. But there’s a hidden cost: You lose control over where your work ends up. In hundreds, if not thousands, of cases, a tune becomes the backing track to hate speech or violent videos. Often such use violates the license the buyer agrees to when purchasing the track. But nobody reads the licenses—and, more importantly, no one enforces them.

. . . .

Even when musicians sell royalty-free tracks directly, rather than through a larger marketplace, they rarely know where their music ends up—especially if they aren’t credited. According to Eric Schwartz, Content Insights Manager at Envato, which operates Audiojungle and other content marketplaces, purchasers are encouraged to credit musicians whenever possible. But, as with many royalty-free licenses, credit isn’t required. That makes it tough for artists to track use of their creations. While image search is fairly advanced today, you can’t Google a melody. If the composer’s name isn’t in the credits, the best chance many have of finding their work is by stumbling on it during a YouTube binge.

. . . .

You might think Flaherty’s “Comic Intro” video—with its violent scenes taken out of context and its racist message—would trigger AudioJungle’s license prohibition. AudioJungle doesn’t seem to see it that way. The company wouldn’t comment specifically on Flaherty’s case, but it does not require customers to report how they use purchased content. Its focus, according to a statement sent by Schwartz “is on making it easy for customers to find and buy what they are looking for.” If Audiojungle learns of a breach of any part of the license, Schwartz says it could trigger “the termination of a user’s account.” But pursuing such an outcome (and any associated legal costs) fall on the author/artist’s shoulders.


Link to the rest at Wired and thanks to Joshua for the tip.

After many years of operating in the world of contracts involving individuals and organizations, PG has observed that who you deal with is the single most important predictor of a successful relationship.

You can have the finest contract ever created, but if you’re dealing with crooks on the other side of the contract, you are unlikely to have a satisfactory experience.

Online business relationships make the assessment of honesty even more difficult. As the caption of a famous cartoon in the New Yorker (first published almost 25 years ago) explains, “On the Internet, nobody knows you’re a dog”.

In the distant past, a known reputation on the part of the counterparty to an agreement was regarded as the most important element of the deal. A prudent person could make an agreement with Honest Jane on a handshake and feel comfortable that the agreement would work out as expected.

If Honest Jane did not keep her part of the bargain, her business reputation would be ruined and such reputational damage would impair her ability to make any agreements with other potential partners in the business community.

As commerce became more complex and geographically dispersed, in the US, standard business laws were passed in all states (Louisiana was an exception until 1990) – The Uniform Commercial Code.

While not 100% uniform, the UCC was designed to permit parties in different parts of the United States to engage in commercial agreements knowing that common legal provisions would be incorporated in their agreements, (usually) unless the agreements specifically excluded some or all of such terms. Short and simple agreements were possible because the UCC handled all the boilerplate.

Reputations were not as easily ascertained as in earlier times, but, within a given industry, it was often possible to learn about a reputation from other businesses and individuals operating in the industry. Someone who wasn’t known in the industry could, at a minimum, expect to pay higher prices or pay prior to shipment of goods until a business reputation was developed.

Of course, the internet created a world-wide commercial market. You can buy many products and services from a vendor in China as easily as you can from a vendor in Ohio.

However, in PG’s opinion, the risk to the reputation of either party is of far less consequence in such a huge market. If Beijing Biscuits delivers poor-quality goods to a US consumer, how likely is Beijing Biscuits’ world-wide reputation likely to take a meaningful hit? If there is perceived reputational damage, many US consumers will learn that Birmingham Biscuits is, in fact, the same organization with a different trade name?

The lesson for writers of music or writers of books is an old one: 1. Know the reputation of the organization you’re thinking about doing business with (and thoroughly investigate if you don’t know the reputation) and 2. Read the online agreement you’re asked to agree to before clicking on it. Particularly see what the agreement says about how you can terminate the agreement and what happens to your intellectual property if you do terminate.

PG has almost certainly reviewed more online click contracts than you have and he knows they’re no fun to read. If you want to know what you’re getting into, however, you will need to read them. Printing the contract may help with your reading.

PG also suggests that you keep copies of the contract somewhere on your computer for future reference and, perhaps even more important, comparison with future revised versions of the contract you are asked to click to accept.

Books from 1923 to 1941 Now Liberated

14 November 2017
Comments Off on Books from 1923 to 1941 Now Liberated

From Internet Archive Blogs:

The Internet Archive is now leveraging a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold. Elizabeth Townsend Gard, a copyright scholar at Tulane University calls this “Library Public Domain.”  She and her students helped bring the first scanned books of this era available online in a collection named for the author of the bill making this necessary: The Sonny Bono Memorial Collection. Thousands more books will be added in the near future as we automate. We hope this will encourage libraries that have been reticent to scan beyond 1923 to start mass scanning their books and other works, at least up to 1942.

. . . .

If the Founding Fathers had their way, almost all works from the 20th century would be public domain by now (14-year copyright term, renewable once if you took extra actions).

Some corporations saw adding works to the public domain to be a problem, and when Sonny Bono got elected to the House of Representatives, representing Riverside County, near Los Angeles, he helped push through a law extending copyright’s duration another 20 years to keep things locked-up back to 1923.  This has been called the Mickey Mouse Protection Act due to one of the motivators behind the law, but it was also a result of Europe extending copyright terms an additional twenty years first. If not for this law, works from 1923 and beyond would have been in the public domain decades ago.

. . . .

But there is an exemption from this extension of copyright, but only for libraries and only for works that are not actively for sale — we can scan them and make them available. Professor Townsend Gard had two legal interns work with the Internet Archive last summer to find how we can automate finding appropriate scanned books that could be liberated, and hand-vetted the first books for the collection. Professor Townsend Gard has just released an in-depth paper giving libraries guidance as to how to implement Section 108(h) based on her work with the Archive and other libraries. Together, we have called them “Last Twenty” Collections, as libraries and archives can copy and distribute to the general public qualified works in the last twenty years of their copyright.

Link to the rest at Internet Archive Blogs and thanks to Dave for the tip.

Nearly 1500 High-Resolution Images of Paintings Made Available for Free Download by The Barnes Foundation

14 November 2017

From No Shelf Required:

The Barnes Foundation . . . has recently made available for free download in the public domain nearly 1500 items in high resolution,  including paintings by impressionist, post-impressionist, and early modern masters like Giorgio de Chirico, Henri Rousseau, Vincent Van Gogh, and Auguste Renoir.

Currently, digital images of more than 2,000 works of art in the Barnes Foundation’s collection are available to the public online. The Foundation encourages “use, enjoyment, and sharing of these images while respecting artists’ rights and copyright.” Each work is assigned a “rights statement” that helps communicate the Foundation’s assessment of the copyright status of the work (e.g., Public Domain, In Copyright, Copyright Undetermined).

Link to the rest at No Shelf Required and here’s a link to The Barnes Foundation

PG wishes more owners of images of all types would be as helpful as The Barnes Foundation in disclosing the copyright status of those images.

Here’s an image from Barnes of a Degas painting and the accompanying disclosure of copyright status:



Public Domain Mark 1.0

  • This work has been identified as being free of known restrictions under copyright law, including all related and neighboring rights.

    You can copy, modify, distribute and perform the work, even for commercial purposes, all without asking permission. See Other Information below.

  • Other Information
    • The work may not be free of known copyright restrictions in all jurisdictions.
    • Persons may have other rights in or related to the work, such as patent or trademark rights, and others may have rights in how the work is used, such as publicity or privacy rights.
    • In some jurisdictions moral rights of the author may persist beyond the term of copyright. These rights may include the right to be identified as the author and the right to object to derogatory treatments.
    • Unless expressly stated otherwise, the person who identified the work makes no warranties about the work, and disclaims liability for all uses of the work, to the fullest extent permitted by applicable law.
    • When using or citing the work, you should not imply endorsement by the author or the person who identified the work.

Digital age changes all the rules on intellectual property

11 November 2017

From The Hill:

The newest parts of copyright law are the most antiquated, and they are choking creativity and innovation. But that hasn’t stopped some internet companies that benefit from the status quo from calling for the Trump administration to export those laws in the North American Free Trade Agreement (NAFTA).

Those calls should be ignored. Moreover, Congress and the courts can and should do more to protect creativity and innovation in the digital age.

The DMCA reflects a distant digital past

The problem lies in the Digital Millennium Copyright Act (DMCA) of 1998’s notice and takedown system, which seemed well suited for the dawning internet age, but became outdated practically overnight and has not aged well.

. . . .

The burdens imposed on rights holders by this antiquated system are immense. For example, Google’s latest transparency report reveals that in 2016, Google alone received well over 900 million takedown requests.

The DMCA’s single file containment approach leads to an endless, futile game of whack-a-mole, where creators send the same takedown notice, for the same works, over and over and over.

. . . .

[C]ourts should more faithfully enforce the statutory conditions that must be met to qualify for the DCMA safe harbor protection. The courts should also stop ignoring and give effect to the DMCA provision that requires service providers to act to block infringements.

. . . .

[S]ervice providers should voluntarily implement systems ensuring that infringing materials are taken down and stay down.

Link to the rest at The Hill

PG suggests that legislation has a very difficult time keeping up with innovation in the technology world.

This does not mean he condones violation of the copyright laws, only that on a world-wide internet which is constantly sprouting new technologies, legislators can never keep up. Ditto for regulators.

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