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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELATE JURISDICTION
CRIMINAL APPEAL NO: 06 of 2013
DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
V
FARIYAD ALI
Respondent
Ms. S. Puamau for the Appellant
Mr. J. Singh for the Respondent
Dates of Hearing: 10 & 12 July 2013
Date of Judgment: 18 July 2013
JUDGMENT
(COPYRIGHT)
2. The Respondent faced two charges which were
Count 1
Statement of Offence
Dealing in infringing copy, contrary to section 121 (d) (I) (i) of the Copyright Act 1999.
Particulars of Offence.
Fariyad Ali trading as Coastal Trading, on the 14th day of September 2007, at the Queens Road, Nayawa, Sigatoka in the Western Division, in the course of business offered for sale 6 infringing copies of the musical works titled "Eagle Wings" being the copyright of Vere Bulamaibau, when Fariyad Ali knew or ought reasonably to have known that the same were infringing copies.
Count 2
Statement of Offence
Possession of Object to make infringing copy,
contrary to section 121 (2) (b) of the Copyright Act 1999
Particulars of Offence
Fariyad Ali trading as Coastal Trading, on the 29th day of May 2008 at Queens Road, Nayawa Sigatoka in the Western Division, possessed one computer Seagate 40GB model which was adapted for making infringing copies of particular work when Fariyad Ali trading as Coastal Trading knew or ought reasonably to have known that possession of the same was to be used to make infringing copies of CDs and DVDs in the course of business.
3. The D.P.P.'s grounds of appeal against acquittal filed on 09th May 2012 are:
1) That the Learned Magistrate failed to analyse all the elements of the offence in Count 1 and the facts that supported it which would have revealed that there was evidence to prove the case.
2) That the Learned Magistrate erred in law and in fact in stating that there was no evidence tendered to show that "Eagle Wings" was owned by Vere Bulamaibau when, in fact, Vere Bulamaibau gave evidence in the prosecution case.
3) That the Learned Magistrate failed to consider and analyze the evidence in relation to Count 2.
An additional ground of appeal filed on 22nd May 2012 prays that:
"the Resident Magistrate erred in law in allowing a vacation of the Respondents guilty plea in light of both the unequivocality of that plea and the conviction entered by the Magistrate's Court of Fiji in 22nd June 2009".
The Facts:
4. The brief facts of the case were that the Respondent owned and operated a store called Coastal Traders in Sigatoka. A sign outside advertised the sale of CDs and DVDs. It also sold grog and spices. The left hand side of the store displayed hundreds of titles of DVDs and CDs. One Copyright Specialist stopped at the store and asked for 6 copies of the "Eagle Wings Collection" a gospel compilation of musical works created by a Mr. Bulamaibau. Mr Bulamaibau had written the music and had produced it and marketed it himself.
5. After 30 minutes the Copyright Specialist was given the 6 copies of the "Eagle Wings" for $2.00 a copy with the title written on each in crude blue felt tip writing. A complaint was made to the Police in Sigatoka and the shop raided. As well as a large number of discs, a computer Seagale 4GB brand was seized from the premises. The computer was forensically examined by the Serious Fraud Office in Auckland, New Zealand. The examination disclosed that the computer had no capacity for normal communication or word processing use but had multiple forms of software installed for the copying and "burning" of CDs and DVDs. In an interview under caution the Respondent admitted selling CDs for $1.00 and $2.00 as a business venture; he "burned" these on the computer and he copies the music of local artists.
The Plea
6. The accused when charged initially entered pleas of guilty to the two charges and was convicted but in front of a different Magistrate on a subsequent date successfully applied to reverse his pleas. The Magistrate quashed the conviction and entered pleas of not guilty. The matter then proceeded to trial on divers dates between 15th October 2009 and 11th April 2012, when yet another Magistrate handed down a not guilty verdict and acquitted the Respondent.
7. The Magistrate's judgment is remarkable for its lack of reasoning, its failure to properly analyse the evidence given at trial and failure to address at all the evidence produced in respect of the second count.
The Evidence
8. The first prosecution witness (PW1) was a Mr. Joyce, a copyright consultant from New Zealand. After giving evidence of his expertise in the field of copyright and his knowledge of original Fijian performing artists, their music and their engineering and production of recordings of the music. He gave specific evidence as to his acquaintance with Mr. Bulamaibau and his music "Eagle Wings". He knew that Bulamaibau had written the music and had spent nearly $450,000.00 to record it in 6 albums. The artist was concerned about reported piracy of his music and identified Coastal Traders in Sigatoka as an outlet for the sale of the copies. PW1 went to that store and asked for 6 copies of "Eagle Wings" which was promised to him for $2.00 a copy. He waited 30minutes in which time he saw empty CD cartons. When given the copies crudely labelled, he was of the view that they had been produced without permission of Bulamaibau the author, so took them to Sigatoka Police Station and lodged a complaint. The Police accompanied PW1 back to the store when the sales person confirmed having sold the discs. The Police searched the premises pursuant to a search warrant. Drawers full of CDs and DVDs were found filed under a rather sophisticated filing system. A computer, suspected to be the copying medium, was seized. The computer and discs were taken back to the station and marked as Exhibits produced. PW1 photographed and produced photos of the store and of the exhibits seized. PW1 assisted the Police by taken the computer for forensic examination in Auckland and then returning it to Sigatoka with the forensic report.
9. PW2 was a Mr. Hudson, a computer forensic investigation and forensic accountant with the New Zealand Serious Fraud Office. He is a New Zealand Chartered Accountant. He has attended Software Forensic Courses in the USP run by Microsoft and has conducted Forensic training in New Zealand, Fiji and the Cook Islands. He had been with the New Zealand Serious Fraud Office for 16 years and had experience in investigating large financial crimes. He examined the computer seized from Coastal Traders. The computer had no capacity for programmes for email, for internet, for spreadsheets, nor educational software. The only programme loaded was "Nero" a programme for "burning" or copying CDs and DVDs. He wrote a report which he produced as evidence and concluded that the computer was not used for any other purposes other than to copy CDs or DVDs.
10. PW3, was the artist himself, Mr. Vere Bulamaibau. He is a musician and a businessman and said that he started writing the "Eagle Wings" compilation in 1994 and wrote ten songs over the next ten years producing the work, selling it and marketing it. He hired a studio to produce it at a total cost of $500,000.00. He marketed the finished work in New Zealand, Australia, USA, UK and the Middle East. He claimed to have three "rights" to the music, the composition right, the performing right and the production/fixation right. He had not given or sold these rights to any other person or entity. He had the intention to be solely responsible for the sale of his music so he could provide for his 8 children. He had been a member of the Fiji Performance Rights Association since 2004. He had in 2006 been alerted to the fact that Coastal Traders was selling his recording for $5.00 when he had been selling his own produced work for $25.00. He then met Mr. Joyce (PW1) in 2007 and asked him to help him stop what he regarded as pirate selling. He had never given Coastal Traders the rights to copy or sell his work.
11. After protracted arguments about disclosure of the offending discs the final witness for the Prosecution (PW4) was a Police Constable, the investigating officer. He produced 19 discs of copied works from Coastal Traders which had been seized and marked as Exhibits. He also recorded the Respondent's Interview under caution; and produced a copy of the interview at trial. He gave formal evidence of his compliance with procedures for handling and keeping of the Exhibits (including the computer). He viewed the original disc of Eagle Wings and viewed the 6 copies. He noted that the 6 copies were the same as the original.
The Defence submitted that there was no case to answer, a submission which did not find favour with the learned Magistrate and the Respondent was then put to his Defence.
12. In his interview under caution the respondent chose to be interviewed in English because he could not read or write in Hindi. He claimed to be educated to form seven level. He operates the business of Coastal Trading where he sells grog, spices, and CDs.
13. The Respondent gave sworn evidence at trial. He said he was a businessman selling grog and CDs. He "burned" movies from South Pacific Recording. When Police raided the shop, he was not there. His wife was present. He gave a statement to the Police. He had a computer at the shop which his children use for educational purposes after school. He made wedding videos and videos of religious ceremonies and burnt copies of those for customers. He did not sell "Eagle Wings" but sells "Hollywood" copies. He has never seen or heard the contents of the DVDs seized. He doesn't know what the Police wrote in the record of interview because he cannot read (despite being educated to form four). He has a licence from Sigatoka Town Council to sell videos and make copies. He buys blank CDs at $12.00 or $15.00 for 50 pieces. He does not sell artist items because he does not hold the rights. He does not know anything about the computer. The children use it. He sold CDs which he bought from a wholesaler and he also burnt CDs for customers on request. He used the computer only to burn CDs and the children also used it for their studies. He admitted to having one computer at Coastal Traders which he used to burn CDs.
The Magistrate's Judgment
14. In a written judgment dated 11th April 2012 the learned Magistrate first reproduced the offences section of the Copyright Act 1999 (s. 121) and then a procedural section (s.126) dealing with evidence by way of affidavit. He then reproduced sections from the Copyright (amendment) Decree 2009 which dealt with matters arising from copyright held in foreign countries. The Magistrate gave no reasons for reproducing these particular sections and apart from the offences section (s. 121) the matters he reproduces are of no relevance to the present charges or procedure. It can only be presumed that he wanted to add "padding" to his judgment.
15. Without analysing or even referring to the evidence given in these protracted proceedings, the Magistrate simply said this:
"In the present case no evidence given in Court to show that the Complainant had licensing rights over the alleged work that's being complained as of (sic) being copyrighted (sic). The onus was on the prosecution to prove that the accused offered for sale 6 infringing copies of the musical works titled "Eagle Wings" being the copyright of Vere Bulamaibau. No evidence was tendered to show that the copyright of "Eagle Wings" was held by Vere Bulamaibau.
The Court is also not satisfied beyond reasonable doubt that the prosecution has proven count one and two and for this reason the accused is acquitted. 28 days to appeal".
16. For a trial that had been proceeding for a period just short of three years, both parties deserved to have their efforts rewarded with more then 2 short misconceived paragraphs. A more detailed analysis of the evidence of both prosecution and defence to relevant sections in the Copyright Act 1999 ("The Act") might have enabled the Magistrate not only to apply a proper definition of Copyright to the works of Mr. Bulamaibau ("The Victim") but also to help him tell the difference between copying and copyright.
17. It is apparent that the finding of a case to answer and this particular verdict are in direct conflict with each other.
The Appeal
18. With the written consent of the DPP and in support of their initial two grounds of appeal the state relied on written submissions filed in this Court on 16th May 2013. They submitted that the respondent had never denied that he was the owner and operator of Coastal Trading, the small firm that sold the 6 DVDs to Mr. Joyce. The respondent went even further and admitted both in oral evidence and in his cautioned interview (which was evidence before the Court as EX. P.10) that he "burns" CDs and DVDs in his shop. He admitted that he did not have copyright in the items he sold in the store. The State submits that it was never disputed that Mr. Joyce had ordered 6 copies of "Eagles Wings" a local artist's musical compilation, and after 30 minutes had obtained those 6 copies crudely marked as "Eagle Wings" with blue felt tip pen. To that extent they say that the availability (or making available for sale) and sale of "Eagles Wings" by the respondent was proved beyond reasonable doubt.
19. In addition to this physical transaction the State submits that copyright of the work "Eagles Wings" remains vested in PW 3, the composer, author and original producer of the video and that copyright remains with him until alienated by licence or expiring by time (50 years after his death). Mr. Bulamaibau the composer had given clear viva voce evidence that he had composed the 10 songs himself and had paid a production company a sizeable amount of money to produce the video to accompany the gospel music and in addition he was adamant that he had never given licence to anybody to reproduce the works.
20. In respect of the second count, Counsel for the State submits that all the elements necessary to prove the charge were made out by the evidence. The respondent admitted owning the computer taken from the shop, he admitted having burnt CDs and DVDs on that computer; CDs and DVDs that were for sale in his shop. A forensic examination of the computer revealed that there was no programme in the computer which would enable use to be made of it for educational or research purposes, but the only use and main purpose was for "burning or copying CD/DVDs".
21. In support of its additional ground of appeal, the State submits that the learned Magistrate had no power to vacate the plea of guilty because the respondent had already been convicted and there was no evidence at all that the earlier plea was equivocal.
22. Counsel for the Respondent mounted a very spirited and ingenious defence to the State's appeal. He submits that because the "infringing discs" were never viewed in Court or identified by the purported copyright holder then the charges must fail for the reason that it cannot be shown beyond reasonable doubt that the discs in question which were provided to Mr. Joyce were indeed infringing copies.
23. Counsel for the respondent in an extension of his argument submits that if it cannot be proved that the discs were infringing copies, then the computer cannot be said to have been used to have made infringing copies to satisfy the elements necessary to prove the second change.
24. His ingenuity knowing no bounds, Counsel further adds that Mr. Joyce's ordering of the 6 copies of "Eagles Wings", and having to wait 30 minutes for the copies to be made, amounts to no more than entrapment and the charge should fail for that very reason.
Discussion:
25. The evidence produced before the Magistrate was quite clear in establishing that the composer (Mr. Vere Bulamaibau) had original copyright on the compilation (both audio and video) entitled "Eagles Wings". Mr. Vere gave explicit and unambiguous evidence of having composed the music and having produced (at his own expense) the DVD to accompany a performance of that work.
26. By the definition of "author" in section 5 of the Copyright Act 1999 ("The Act"), Mr. Vere is deemed to be the author on 2 counts. By s. 5 (2)(a) he created the work and by s.5(2)(b) he undertook the making of the audio visual work. That being so, by the terms of S.21 he being the author, he is the first owner of the copyright in the work, and unless alienated, he remains the owner of the copyright for his lifetime plus 50years.
27. Contrary to the submissions of the respondent, there is no provision in the act to "register" his copyright, that is to say his ownership of the rights in the music and the audio visual accompaniment. The evidence of his ownership of the copyright comes from the author himself and by the definition terms in the Act. The Learned Magistrate heard this evidence and was deemed to have knowledge of the provisions of the Act and as a consequence he fell into error by finding that there was "no evidence given in court to show that the complainant had licensing rights over the alleged (sic) work that is being complained as of (sic) being copyrighted (sic)". By this unhappily worded sentence, the Magistrate demonstrates that he has failed to understand the significance of more than two years' of evidence and submissions.
28. This Court finds that the author (PW3) who is not the complainant, but the victim, is clearly the author of the music and the audio visual accompaniment and as such is the copyright owner of the two entities.
29. Having made that finding, I then go on to decide whether in terms of the first charge the Respondent offered for sale six infringing copies of the musical work where he ought reasonably to have known that the same were infringing copies.
30. When the investigator, Mr. Joyce (PW1) entered the store, he asked; "do you have "Eagles Wings"?" which the lady staff (the Respondent's wife) answered "Yes; they are $2.00 each". He ordered 6 copies and was told to wait for 30 minutes after which time he was given the copies, crudely entitled "Eagle Wing".
31. The offence section of the act (s.121) sets out offences of making for sale or hire (s.121 1(a)), and offering or exposing for sale or hire (s.121 (1)(d)(i)) and does not create the offence of actual sale of the disc. That being so, the offence here present is completed when the staff of the shop offers to provide the 6 copies. If entrapment were a defence in Fiji (and there is no authority to say it is) it would certainly not be relevant in this case. All Mr. Joyce has done is to ask if the discs are available and receiving a reply in the affirmative, the offence of offering for sale is made out.
32. Mr. Singh for the Respondent submits that the purported infringing discs were neither disclosed to the defence nor viewed by the copyright owner (PW3) and therefore it cannot be said that the discs relied on by the Prosecution were in fact "infringing" DVDs.
33. This submission at first being quite attractive cannot succeed. As far as the audio visual copy by DVD is concerned, the author gave evidence that his original DVD had a floral design and his handwriting listed the songs and his contact details. The offending discs quite clearly did not carry those markings and by purporting to be copies of Eagles Wings, they must have been infringing copies. In any event, nothing was made of this point at trial. The Respondent was at all times after plea represented by Counsel and Counsel never once suggested to the tribunal that the discs in question were not offending discs. Counsel did at one point complain that the discs had not being disclosed to them but when in actuality they were (albeit at a late stage). The Respondent and his Counsel presumably viewed them because this issue was never again raised before the Court.
34. That being the situation in the proceedings below it cannot now be a defence to the charges that the discs were not infringing copies.
35. This argument of the defence raised a very nice and subtle point: and that is; does the offence of making infringing copies go to the actual work of the author or to the making of the DVD itself? In the present case, the copyright holder is able to say that is not my original disc because it doesn't have the floral designs and it doesn't have the authors contact details. It surely then becomes irrelevant as to what is actually recorded on the DVD. The offence is offering for sale an infringing copy of the work, which in the present case includes apart from the songs, the production DVD as well and it is quite clear that that DVD has been illegally copied.
36. Having proved the ownership of the copyright, and the creation of infringing copies, the last element to be proved in this case is that the Respondent knew or ought reasonably to have known that the copies made were infringing copies.
37. From the evidence in Court of the Respondent himself and by the evidence contained in his interview under caution it is quite clear that he was in the business of dealing in CDs and DVDs for 2½ years buying large numbers of DVDs and copying them on his computer. He even attested to having bought large quantities of CDs of local artists. He states he regularly copies or "burns" CDs and DVDs on his computer.
38. A businessman who is operating a CD/DVD sales or rental shop must know that copyright exists in most of the titles he deals in and he is deemed to know the law, in that it is an offence to copy and offer for sale such title. To that extent he ought reasonably to have known that the copies made of Eagles Wings were infringing copies.
39. All the elements of the offence having been proved beyond reasonable doubt to the satisfaction of this Court, then the appeal is allowed in respect of the first count and pursuant to section 256 (2)(a) of the Criminal Procedure Decree, I quash the order for acquittal made in the Court below and would order that the Respondent be found guilty of and convicted of the offence in count one.
40. The second count faced by the Respondent relates to the Computer seized from his shop being a device which he admitted to having copied DVDs and CDs on. The machine was examined in Auckland by experts and found to be adapted specifically for copying DVDs and CDs.
41. Mr Singh for the Respondent submits that the infringing copies were not shown to the Court and it cannot then be said that the computer was used to make infringing copies. This judgment has dealt with this submission in paragraphs 33 and 34 (supra) but in respect of this charge would go even further to say that it is irrelevant whether those particular copies, be they infringing or no, were made on the computer.
42. The offence of possession of an object (s.121 (2) (b)) is a very wide encompassing section indeed. All that has to proved to make out the offence, is that an accused possessed the object (in this case the computer) and that it is used or he is ought reasonably to know that it is used to make copies of copyright work.
43. Given that nearly every video store in Fiji would have such a device, then the owner should reasonably be deemed to know that it is to be used for making infringing copies for sale or hire in the course of his business. As a consequence nearly every video store owner is committing this serious offence. It's not necessary to prove who holds the copyright of any particular works in that store, because every work will have copyright and to have a device to make copies of those creates the offence.
44. The penalty of this possession offence is a fine of $50,000 and 12 months imprisonment and to that extent the legislature in 1999 regarded it as a very serious offence indeed.
45. Harsh though it may seem, the law must be applied.
46. Similarly I quash the order of acquittal on this Count 2 made below and substitute a finding of guilty and 1 convict the Respondent accordingly (again pursuant to s.256(2)(a) of the Criminal Procedure Decree 2009).
47. Before leaving this substantive judgement and before addressing the question of penalty, I turn to the late and additional ground of appeal filed by the State.
48. On the 22nd of June 2009, the respondent was called in the Court below to enter a plea to the two counts. He entered a plea of guilty to both counts but disputed the facts relating to the second count. For that reason, and quite properly the Magistrate vacated that guilty plea and entered a plea of not guilty on the second count. At the same time he convicted the Respondent on the first count.
49. On the 15th of October 2009 the Respondent, now represented by Counsel, made an application to change his plea on the first count. Despite the conviction, the Magistrate (by this time a different Magistrate) surprisingly allowed the application, reversed the plea and commenced the hearing on the first and the second counts.
50. Quite obviously the decision of the Magistrate to reverse the plea after conviction was "ultra vires" – he being functus officio. The State's appeal on this ground has to be allowed, but it falls away as redundant given this Court's findings in this appeal on the earlier grounds filed.
51. Mr. Singh submits that a guilty plea can be changed even after conviction and in support of his argument relies on the case of
Jagan Nath HAC 58 of 2012 a decision by Goundar J in Labasa. Mr Singh failed to provide the Court with a copy of that judgment, and had he done so it would have been seen immediately that the Nath case is not on point at all. Mr Nath had entered pleas of guilty to a murder but when asked to agree facts it was realized that a defence was available to him. Quite properly, the Learned Judge did not allow the plea to stand. Mr. Nath had never been convicted as a consequence of his plea.
Sentence
52. At the hearing of this appeal, Counsel for both parties were asked for submissions on sentence, if in the event the Court found favour with the State's appeal. The appeal having been allowed and the Respondent having been convicted on both counts, it is now for this Court to impose appropriate penalties.
53. The maximum penalty for the first count of offering for sale of infringing copies is a fine of $5,000 for each copy and imprisonment to 12 months; for the second offence a fine of $50,000 and imprisonment for 12 months. There has never been a prosecution for this offence before in Fiji, so there are no precedents to guide the Court.
54. Apart from the obvious seriousness that the Legislature applied to these offences, as displayed by the harsh maximum penalties imposed, the now common assumption of the rights of copyright holders is a problem doing damage to authors, composers and performing artists in our society. A businessman would quite properly be aggrieved should his stock or weekly takings be stolen and there is no reason why an artist or performer should not be aggrieved should the fruits of his or her artistic endeavours be also taken by another; for that is what infringement of copyright is; it is theft of another's property, be it intellectual property rather than tangible property.
55. In mitigation the respondent submits that he is a businessman with 3 children. He operates two shops in Sigatoka Town dealing with this same business of mixed spices and DVDs. He earns approximately $300. 00 per week from both shops. He owns his own home (subject to mortgage), a vehicle and his stock and assesses his net worth to be approximately $25,000.00 He has no previous convictions, nor matters pending and he cares for his parents and 3 teenage children.
56. Counsel for the Respondent submits that the fact that 6 copies were made is no worse than one copy being made because they are copies of the same work and in event they were not readily available and had to be generated while the purchaser waited. This Court does not agree with this submission. The legislation explicitly provides a penalty for each infringing copy and the fact that 6 copies were made on request is aggravating rather than mitigating. By not being "readily available" for sale the effort made to produce them also aggravates the offence.
57. The State in reply to Mr. Singh's plea in mitigation asks the Court to have regard to the fact that the copyright owner had 8
children that he was trying to provide for financially by way of his musical gifts and he had taken 10 years to "bring it together".
They submit that infringement of his copyright dilutes the availability of his income.
58. This Court must above all have regard to the intention of the legislation rather than to the ramifications to individual copyright
holders whose work is infringed. That intention is to protect the right of authors to reproduce and perform their work and to enjoy
the fruits of their artistic or literary talents: such rights protected from arrogation by greedy and unscrupulous businessmen.
59. For the first count of offering to sell infringing copies the Act envisages both a financial penalty and a term of imprisonment. For a first offender who infringes copyright in the way of a small one man business, a financial penalty rather than imprisonment is a far more suitable punishment. To spend a short time in custody serves no purpose. However should the miscreant reoffend or should he be dealing in infringing copies in a very large and organised manner, then of course a term of imprisonment in addition to the financial penalty would be more apposite.
60. The penalties for the offending reflected by the second count (possession of object to make infringing copies) are of course far more serious and again should the object be part of a large-scale and well organised reproduction scheme then a term of imprisonment would be germane. However in respect of this offence the legislature has seen fit to make the financial penalties ten times more than those for the first offence.
61. For the first offence the respondent now stands convicted of, I sentence him to a fine of $750.00 per infringing disc, making a total fine of $4,500. This is a modest fine for a businessman of modest means with a very small family operated outlet. In addition to the fine, I sentence him to a term of imprisonment of 4 months, a term which will be suspended for a period of 18 months from today.
62. The Court now explains the consequences of a suspended sentence and warns the respondent that re-offending apart from incurring the possibility of a charge of breach of suspended sentence will almost certainly lead to an immediate term of imprisonment.
63. For the second count, I sentence the respondent to a fine of $7,500 and a term of imprisonment of another four months, suspended for 18 months.
64. The two terms of imprisonment, although suspended, will be served concurrently, meaning that after 18 months from today he will be free of the threat of imprisonment but he will be liable to an immediate custodial term should he re-offend in a like manner.
65. The total fines of $12,000 are to be paid to the Registry of the Court by the 31st August 2013.
P. Madigan
Judge
At Lautoka
18th July, 2013
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