Copyright law of Canada

Copyright law of Canada

The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921. Current copyright law was established by the Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. All powers to legislate copyright law are in the jurisdiction of the federal government by virtue of section 91(23) of the Constitution Act 1867.



Colonial copyright law

It is unclear to what extent British copyright law, or imperial law, starting with the 1709 Statute of Anne, applied to then colonies including Canada. The first Canadian colonial copyright statute was the 1832 Copyright Act, long title “An Act for the Protection of Copy Rights”, passed by the Parliament of the Province of Lower Canada, granting copyright to residents of the province. The 1832 Copyright Act was short, and declared ambitions to encourage emergence of a literary and artistic nation and to encourage literature, bookshops and the local press. After the Provinces of Upper and Lower Canada (Ontario and Quebec) were reunified to form the Province of Canada, the 1832 Copyright Act was repealed and with minor changes enacted as the 1841 Copyright Act, long title “An Act for the Protection of Copy Right in this Province”.[1]

The 1841 Copyright Act only granted copyright in books, maps, charts, musical compositions, prints, cuts and engravings. Copyright was only awarded if it was registered and a copy of the work deposited in the office of the registrar of the province before publication. The author or creator was required to be resident in the province in order to obtain copyright under the Act, though the Act was unclear on whether the work needed to have been first published in the Province. The objective of the colonial copyright statutes was to encourage the printing of books in Canada, though this was not made explicit to avoid conflict with imperial copyright law, which was primarily designed to protect English publishers. Britain forcefully demanded guarantees that British and Irish subjects were eligible for protection under Canadian colonial copyright law in the same way residence of the Canadian colony were.[2]

One year after Canada passed its colonial law on copyright, the UK Parliament passed a new imperial statute on copyright, the Copyright Act 1842. The statute explicitly applied to “all Parts of the United Kingdom of Great Britain and Ireland, the Islands of Jersey and Guernsey, all Parts of the East and West India, and all the Colonies, Settlements, and Possessions of the Crown which now are or thereafter may be acquired”. Any book published in London would therefore be protected by copyright law in the entire British Empire, including Canada, which was a young British colony.[1] The imperial Copyright Act 1842 had an immediate impact on Canada and became infamous because it effectively prohibited the importation and sale of reprints of any book under British copyright printed in other countries. Previously Canada had mostly imported books from the United States, but it was now unlawful for Canadian merchants to engage in this trade. Instead merchants were required to import books under British copyright from printers in Britain, though British market prices were unaffordable for most residents of Canada. As British publishers systematically refused to license books for printing to Canadian printers, the Canadian Government questioned the responsible self-government arrangement.[3] In a provocative move Canada passed “An Act to extend the Provincial Copyright Act to Persons Resident in the United Kingdom” in 1847, granting British authors protection only if their works had been printed and published in the Province of Canada. The 1841 and 1847 statutes were subject to minor revision in 1859 and the requirement for the works to be printed in Canada, buried in the text, was later noticed and denounced by the imperial British Government.[2]

Article published in The New York Times June 1897 - "Music Pirates in Canada: American Publishers Say They Are Suffering by Copyright Violations There – Steps Taken for Redress. "Canadian pirates” is what the music dealers call publishing houses across the line who are flooding this country, they say, with spurious editions of the latest copyrighted popular songs. They use the mails to reach purchasers, so members of the American Music Publishers’ Association assert, and as a result the legitimate music publishing business of the United States has fallen off 50 per cent in the past twelve months.”

The British North America Act 1867 became Canada’s first constitution and granted the Federal Government power to legislate on matters such as copyright and patents. In 1868 the Canadian Federal Parliament passed “An Act respecting Copyrights” re-establishing the publication requirements of the 1847 statute, prompting demand from the British Government that Canada should revise its laws so as to respect imperial copyright law.[4] Under imperial copyright London printers had a monopoly and attracted most authors from the colonies to first publish with them because imperial copyright law granted protection in all colonies. London printers refused Canadian printers the license to print books first published in London and authors had little incentive to first publish in Canada, as colonial copyright law only granted protection in Canada. The Canadian Federal Government thought to further strengthen the Canadian print industry with a 1872 bill that would have introduced a projected licensing scheme that allowed for a reprinting of books under foreign copyright in exchange for a fixed royalty. The British Government opposed the bill and it never received Royal Assent.[5] In order to encourage the local printing and publishing industry Canada made a number of diplomatic and legislative efforts to limit the effects of the imperial Copyright Act 1842. In a compromise arrangement Canada passed the Copyright Act 1875 granting British authors protection under Canadian copyright law if they reprinted or republished their works in Canada. It received Royal Assent the same year and was subsequently amended in 1889, 1890, 1891, 1895, 1900 and 1906. The requirement of reprint and republication was always maintained. The Copyright Act 1921 eventually removed copyright from control of the UK Parliament.[6]

The Copyright Act of Canada

The first Copyright Act of Canada was passed in 1922 which came into force in 1924. Though Canada was no longer subject to imperial copyright law, it was closely modelled on the UK Copyright Act 1911. Until 1988 the Copyright Act of Canada saw only minor amendments while the Federal Government engaged in a number of studies on copyright reform. New technological developments and the emergence of computers, photocopiers and recording devices led to a recognition that copyright law needed to be updated. Between 1954 and 1960 the Royal Commission on Patents, Copyright, and Industrial Design, known as the Ilsley Commission, published a series of reports. Its brief was "to enquire as to whether federal legislation relating in any way to patents of invention, industrial designs, copyright and trade-marks affords reasonable incentive to invention and research, to the development of literary and artistic talents, to creativeness, and to making available to the Canadian public scientific, technical, literary and artistic creations and other adaptations, applications and uses, in a manner and on terms adequately safeguarding the paramount public interest."[7][8]

In 1977 the Canadian department of Consumer and Corporate Affairs (now Industry Canada) published the Keyes-Brunet Report, a working paper with the full title "Copyright in Canada: Proposals for Revision of the Law". In 1984 the Federal Government published "From Gutenberg to Telidon: A White Paper on Copyright" and in 1985 the House of Commons' Standing Committee on Communications and Culture published "A Charter of Rights for Creators - Report of the Subcommittee on the Revision of Copyright".[7]

Reform: Phase one 1988

Eventually a copyright reform process was initiated in two phases: Phase one was started in 1988 and saw several amendments to the original Copyright Act of Canada of 1922. Computer programs were included as works protected under copyright, the extent of moral rights was clarified, the provision for a compulsory license for the reproduction of musical works was removed, new licensing arrangements were established for orphan works in cases where the copyright owner could, and rules were enacted on the formation of copyright collecting societies and their supervision by a reformed Copyright Board of Canada.[7]

Reform: Phase two 1997

Phase two of the reform took place in 1997 and saw the Copyright Act of Canada amended with a new remuneration right for producers and performers of sound recordings when their work was broadcast or publicly performed by radio stations and public places such as bars. A levy was introduced on blank audio tapes used for private copying and exclusive book distributors were granted protection in Canada. New copyright exceptions were introduced for non profit educational institutions, libraries, museums, broadcasters, and people with disability, allowing them to copy copyrighted works in specific circumstances without the permission of the copyright owner or the need to pay royalties. Damages payable for copyright infringement and the power to grant injunctions were increased, and the 1997 reforms introduced a mandatory review of the Copyright Act of Canada.[7]

Bills to amend the Copyright Act

After becoming a signatory country of World Intellectual Property Organization Internet Treaties in 1996, Canada has yet to implement its terms. Three bills were introduced from 2005 to 2010 in an attempt to implement the treaty. Some of the ideas discussed in the bills include a notice-and-notice system, an exception for mash-ups, an exception for making special-formats of works by non-profit organizations for the benefit of people with disabilities.[9]

In June 2005, the government introduced Bill C-60 to amend the Copyright Act. The bill was never passed into law as Parliament was dissolved after a motion of non-confidence was passed in November 2005. In Summer 2008, the government introduced Bill C-61 in their continuing effort to update the Copyright Act, with many similarities to the previous Bill C-60 and the American DMCA. The bill died before it passed into law when the Conservative government called an election in September 2008. On June 2, 2010, Bill C-32 was tabled, but like the two previous bills it was similarly pushed aside during the election in May 2011. [10] Bill C-11, The Copyright Modernization Act: An Act to Amend the Copyright Act, was tabled on September 29, 2011. [11] [12] Introduced by Industry Minister Christian Paradis, Bill C-11 is largely unchanged from Bill C-32. Similar to Bill C-32, Bill C-11 focuses on digital lock provisions, the protection of authors' rights, and the public's rights concerning the copying of legally obtained materials. [13]

Sources of law

Like most other common law countries there are no inherent rights to works, performances, or sound recording at the common law.[clarification needed] Copyright exists solely in statute. According to section 91(23) of the Constitution Act, 1867 the federal government is granted exclusive power to enact laws related to copyright. The evolution of copyright in Canada has been guided by international treaties signed by Canada that try to unify copyright laws across the globe.

Canada is a party to the Berne Convention for the Protection of Literary and Artistic Works of 1986 and has signed but not yet ratified both the WIPO Copyright Treaty of 1996 and the WIPO Performances and Phonograms Treaty of 1996.

Protected Works

A work must be original and can include literary, dramatic, musical and artistic works or compilations. Copyright is granted the moment the work is created and does not distinguish work of a professional or that of an amateur. There is also no distinction between for profit or commercial use or for hobby purposes. Literary work includes anything that is written, such speeches, essays and books and may be in any form. However, a short string of words or spontaneous speech is not covered. Dramatic works include the characters, scenes, choreography, cinematography, relationship between characters, dialogue and dramatic expression. Artistic works include sculptures, paintings, photographs, charts and engravings. Musical works include any musical compositions with or without words. Unexpressed ideas are not protected work.[14]

Rights Conferred


Copyright includes the right to first publish, reproduce, perform, transmit and show in in public. Additionally, other subsidiary rights such as abridgment a translation is also conferred. [15]

Moral Rights

The concept of moral rights refers to the idea that an author has a separate right over their works, in addition to copyright. Despite any assignment or sale of copyright, the author retains their moral rights, a form of personal attachment to the works. Moral rights can only be waived. There are three attributes of moral rights: attribution, integrity and association. Moral rights were originally raised in the Berne Convention and was later incorporated into the Copyright Act. Moral rights allows the author of the work to determine how the work is being used and what the work is being associated to.[16]

Neighbouring Rights

Neighbouring rights do not relate to the creative works themselves, but to the performance, transmission and reproduction. Neighbouring rights is a series or rights relating to one piece of work. Neighbouring rights are generally discussed in the music industry (e.g. performer's rights, recording rights). Neighbouring rights arose in the Rome Convention and was later adopted into the Copyright Act.[17]


Copyright Board

The Copyright Board of Canada is a federal economic regulatory board that has three primary functions: (1) to establish royalties users must pay for copyrighted works when the collection of such royalties is facilitated by a collective, and to oversee the agreements between users and licensing bodies, and (3) to grant users licenses for works when the copyright owner cannot be located.[18]

Canadian Intellectual Property Office (CIPO)

CIPO is an agency associated with Industry Canada. It's duty is to administer intellectual property include the registration of patents, trade-marks, copyrights, industrial designs and integrated circuit topographies.[19]


Collection of royalties and enforcement of copyright is often too costly and difficult for Individual owners of works. Therefore, collectives are formed to facilitate the collection of fees.[20] Collectives may file proposed tariff with the Copyright Board or enter into agreements with users.

Society of Composers, Authors and Music Publishers in Canada (SOCAN)

Canadian composers and lyricist assign performance and communication rights to the Society of Composers, Authors and Music Publishers in Canada (SOCAN), which then sells blanket licenses of its repertoire. The licensing fees collected is distributed back to Canadian composers and lyricists.[21]

Canadian Private Copying Collective (CPCC)

To cope with the large number of private copying of audio recordings, in 1997 provisions requiring the collection of levies on blank audio recording media was implemented. The collected proceeds, though distributed to Canadian and foreign composers, only Canadian recording makers and performers may enforce the levies.[22]

The private copying levies are collected by the Canadian Private Copying Collective. As of 2011, the levy imposed for private copying is 29¢ for each CD-R, CD-RW, CD-R Audio or CD-RW Audio.[23]

Access Copyright

Access Copyright is the collective of English publications. The tariff proposed by Access Copyright was approved in 2009 and it replaces the former Canadian Schools/Cancopy License Agreement. Recent focus of Access Copyright has been towards the education and government sectors. Since 2009, Access Copyright has increased its tariffs significantly from year to year. For 2010-2012, Access Copyright sought to increase its tariff to compensate for digital copying of works and the copying of sheet music. The 2010-2012 tariffs proposed by Access Copyright is $15.00 per student per year, $24.00 per civil servant. For 2011-2013, Access Copyright proposes to increase the tariff to $45.00 per student per year. The Copyright Board's adoption of the tariffs was judicially reviewed by the Federal Court of Appeal in 2009 the decision of the court was released in 2010. [24]

Issues Surrounding Canadian Copyright

Technology circumvention

The latest proposed bill, C-32, introduces a new subsection 41.22, which would allow owners to seek remedies against any one who removes or alters rights management information from a work. Remedies are available regardless whether or not the person removing it had knowledge that removal may facilitate infringement or may affect the owner's right to remuneration. It has been argued by those opposed to this section that this restriction is overly broad and beyond Canada's WIPO obligations. Furthermore, it is questionable how this provision will affect the fair dealing exception, which permits a person to copy copyrighted material for the purpose of making a parody or for educational purposes.[25]

The technological aspect of the proposed bill has led to many groups stating publicly their opposition to the digital lock specifications within the proposed C-11. A wide swath of Canadian arts and education groups have objected to these provisions, arguing principally that such measures infringe on legitimate usage of copyright holding.

The Canadian Federation for the Humanities and Social Sciences has also expressed concern about the effect such provisions will have on legitimate research. Technical Protection Measures (TPMs; often referred to as “digital locks”) are proposed in the bill and may have repercussions on both access and the permanency of digital collections. They argue that the mandate of libraries, museums and archives should enable them to retain intermediate copies of digital material for the purposes of maintenance and preservation. [26]

Fair Dealing

Unauthorized copying of works can be permissible under the fair dealing exemption. In 2004, the Supreme Court of Canada in its decision CCH Canada v. Law Society of Upper Canada made a number of comments regarding fair dealing. Fair dealing is to be examined on a case-by-case basis. The purpose of the dealing, character of the dealing, amount of the dealing, alternatives of the dealing, nature of the work and effect of the dealing are factors that can contribute to fair dealing. Those favouring a broad interpretation of fair dealing argue there ought to be reasonable unauthorized reproduction of works because it facilitates creativity and free expression. They also argue that fair dealing provides reasonable access to existing knowledge. Those arguing that fair dealing ought to be more restrictive and specific state that fair dealing will reduce revenue to those creating works. They also argue the reproduction of works and sends a wrong message to the public that works are free as long as it falls under this banner. Their economic argument is that fair dealing should not compensate for the market's inability to meet the demand for public knowledge.[27]

Legal approaches to copyright

The governing principles of the Copyright Act relate to the creator obtaining both an economic and moral right to their work. “The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)[28].” There is an argument however that copyright allows the user to prevent the public disclosure of knowledge and ideas. Similarly there is another argument that there is no evidence that copyright law encourages the creation of ideas since creative work and ideas have flourished throughout the world long before any law came into effect. Originally, copyright laws were developed to encourage culture.

Traditional perspective

A traditional perspective on copyright law focuses on a balance between the creator and the user. “We must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded[29]”. Copyright should encourage further innovation creating an expectation of lower prices, better service and greater public choice. Copyright laws should not enable oppression or extortion nor hinder competition. Copyright is about the regulation of expression. No longer is there an author bias rather an author/user equality of rights. Economic and moral principles aid in determining the balance between the author/user that help shape copyright laws.

Economic perspective

From an economic point of view, copyrights are said to encourage the disclosure of work to the public and increase society`s pool of ideas and knowledge. The utilitarian view is the strongest proponent of the economic argument: ‘without such rights, much research and creativity would not be carried on or would not be financed by capitalists.[30]’ Such rights however cannot be too far in favour of the author. Binnie J in Theberge adds: “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization[31].” Copyright law can also allow the author to prevent the public release and disclosure of ideas and knowledge. Originally, copyright laws were developed to encourage culture. Today however copyright is a mechanism to support profit maximizing practices that are somewhat anti-competitive; price discrimination, immigration controls on goods, aftermarket repair and rental, and bans on product substitution[32].

Moral perspective

A moral perspective on copyright law focuses on crediting the author for their work and the maintenance of their reputation through that work. [33]. The author has a right to reap the benefit of what they create. However once that benefit has been received the law generally grants the user control. Once the interest is transferred only a moral right remains. As Binnie J in Theberge explains: “They treat the artist's oeuvre as an extension of his or her personality, possessing a dignity which is deserving of protection. They focus on the artist's right (which by s. 14.1(2) is not assignable, though it may be waived[34]) to protect throughout the duration of the economic rights (even where these have been assigned elsewhere) both the integrity of the work and his or her authorship of it (or anonymity, as the author wishes)[35].”

Common law perspective

The Théberge case is a significant Canadian copyright case that offers an insight into the common law perspective of copyright law. The facts of the case involve an artist concerned with a user altering his work from poster form to a canvas. The ink was removed from the poster so the work was not copied. As Binnie J explains: “If modification of these posters were to give rise to any legitimate objection on the part of the artist, it must be as a result of violation of his "moral" right to the integrity of his work[36].” Although Canadian law has traditionally focused on the economic perspective, this case strongly advocates the need for a moral right. The important feature of moral rights in the present statute is that the integrity of the work is infringed only if the work is modified to the prejudice of the honour or reputation of the author[37]. Binnie J further stresses the balance between the author and the user: the purpose is to encourage society to embellish creative innovation for the long term interests of society[38]. At the same time, the author must be compensated for their initial work. This case discusses finding the right balance whilst recognizing the moral right the author maintains even when the copyright of the work may have passed.

Comparison to the United States

The US case of Feist[39] is another significant case in the area. In US copyright law, the primary objective is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts[40]." O’Connor J supports this principle, known as the idea/expression or fact/expression dichotomy. It applies to all works of authorship with little recognition of a moral right remaining with the author. Feist acknowledges are far less balanced approach to copyright law when compared to the majority in the Canadian Case of Théberge. The dissenting judgment of Gonthier J in Théberge explains a precedent that is far more aligned to Feist: "The purpose of copyright is not to protect the ideas or opinions expressed by the creator, but rather the various means and forms by which those ideas are communicated[41]" These perspectives are geared toward the innovation of the idea itself. There is no acknowledgment of the author’s moral right and the perspective is balanced in favour of the user.

See also


  1. ^ a b Gendrequ, Ysolde (2008). An emerging intellectual property paradigm: perspectives from Canada. Edward Elgar. pp. 110–111. ISBN 9781847205971. 
  2. ^ a b Gendrequ, Ysolde (2008). An emerging intellectual property paradigm: perspectives from Canada. Edward Elgar. pp. 111–112. ISBN 9781847205971. 
  3. ^ Gendrequ, Ysolde (2008). An emerging intellectual property paradigm: perspectives from Canada. Edward Elgar. pp. 108. ISBN 9781847205971. 
  4. ^ Gendrequ, Ysolde (2008). An emerging intellectual property paradigm: perspectives from Canada. Edward Elgar. pp. 113–114. ISBN 9781847205971. 
  5. ^ Gendrequ, Ysolde (2008). An emerging intellectual property paradigm: perspectives from Canada. Edward Elgar. pp. 114. ISBN 9781847205971. 
  6. ^ Gendrequ, Ysolde (2008). An emerging intellectual property paradigm: perspectives from Canada. Edward Elgar. pp. 114–115. ISBN 9781847205971. 
  7. ^ a b c d Makarenko, Jay (13 March 2009). "Copyright Law in Canada: An Introduction to the Canadian Copyright Act". Judicial System & Legal Issues. Mapleleafweb. Retrieved 15 August 2010. 
  8. ^ "Patents, Copyright and Industrial Designs, Royal Commission on". The Canadian Encyclopedi. Retrieved 15 August 2010. 
  9. ^ Geist, Michael. From "Radical Extremism" to "Balanced Copyright" Canadian Copyright and the Digital Agenda. Irwin Law. 2010 p.17-44
  10. ^,_2011
  11. ^ Parliament of Canada: Bill C-11 Table of Contents.
  12. ^ Geist, Michael.
  13. ^ Dobby, Christine. Retrieved 23 October 2011.
  14. ^ Vaver, David. Intellectual property law : copyright, patents, trade-marks. Irwin Law. 2011
  15. ^ Vaver, David. Intellectual property law : copyright, patents, trade-marks. Irwin Law. 2011
  16. ^ Vaver, David. Intellectual property law : copyright, patents, trade-marks. Irwin Law. 2011
  17. ^ Vaver, David. Intellectual property law : copyright, patents, trade-marks. Irwin Law. 2011
  18. ^ Copyright Board. "Our Mandate." Last modified July 7, 2001.
  19. ^ Canadian Intellectual Property Office. "What is CIPO." Last modified August 8, 2011.
  20. ^ Vaver, David. Copyright Law, Irwin Law. 2000 p. 221-216
  21. ^ Vaver, David. Copyright Law, Irwin Law. 2000 p. 221-216
  22. ^ Vaver, David. Copyright Law, Irwin Law. 2000 p. 221-216
  23. ^ Tariff of Levies to Be Collected by CPCC in 2011 on the Sale, in Canada, of Blank Audio Recording Media, C.Gaz. 2010 I.
  24. ^ Geist, Michael. From "Radical Extremism" to "Balanced Copyright" Canadian Copyright and the Digital Agenda. Irwin Law. 2010 p.503-540
  25. ^ Shukla, Ravi. "Copyright reform", Current hot topics in corporate law. Ontario Bar Association. 2011.
  26. ^ Canadian Federation for Humanities and Social Sciences: Responding to Bill C-32: An Act to Amend the Copyright Act, Submitted November 2010.
  27. ^ Geist, Michael. From "Radical Extremism" to "Balanced Copyright" Canadian Copyright and the Digital Agenda. Irwin Law. 2010 p.90-120
  28. ^ Théberge v. Galerie d'Art du Petit Champlain inc. [2002] 2 S.C.R. 336
  29. ^ Sayre v Moore (1785), 1 East. 361n, 102 E.R. 139n
  30. ^ David Vaver, Intellectual Property Law: Copyright|Patents|Trade-marks, 2d ed (Toronto: Irwin Law Inc., 2011)
  31. ^ Théberge v. Galerie d'Art du Petit Champlain inc. [2002] 2 S.C.R. 336
  32. ^ David Vaver, Intellectual Property Law: Copyright|Patents|Trade-marks, 2d ed (Toronto: Irwin Law Inc., 2011)
  33. ^ Copyright Act, RS 1985, c C-42, s 28.2(1)
  34. ^ Copyright Act, RS 1985, c C-42, s 14.1(2)
  35. ^ Théberge v. Galerie d'Art du Petit Champlain inc. [2002] 2 S.C.R. 336
  36. ^ Théberge v. Galerie d'Art du Petit Champlain inc. [2002] 2 S.C.R. 336
  37. ^ Copyright Act, RS 1985, c C-42, s 28.2(1)
  38. ^ Théberge v. Galerie d'Art du Petit Champlain inc. [2002] 2 S.C.R. 336
  39. ^ FEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340 (1991
  40. ^ Art. I, 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)
  41. ^ (J. S. McKeown, Fox Canadian Law of Copyright and Industrial Designs (3rd ed. 2000), at p. 60; Cartwright v. Wharton (1912), 25 O.L.R. 357 (H.C.)

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