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Who owns photo copyright


COPYRIGHT ACT 1968 - SECT 10

Interpretation

             (1)  In this Act, unless the contrary intention appears:

"access control technological protection measure" means a , product, technology or component (including a ) that:

                     (a)  is used in or a :

                              (i)  by, with the permission of, or on behalf of, the owner or the exclusive licensee of the in a or other subject-matter; and

                             (ii)  in connection with the exercise of the ; and

                     (b)  in the normal course of its operation, controls access to the or other subject-matter;

but does not include such a , product, technology or component to the extent that it:

                     (c)  if the or other subject-matter is a or (including a computer game)--controls geographic market segmentation by preventing the playback in of a of the or other subject-matter acquired outside ; or

                     (d)  if the is a that is a machine or --restricts the use of goods (other than the ) or services in relation to the machine or .

For the purposes of this , has the same meaning as in section 47AB.

"accessory" , in relation to an , means one or more of the following:

                     (a)  a label affixed to, displayed on, incorporated into the surface of, or accompanying, the ;

                     (b)  the packaging or container in which the is packaged or contained;

                     (c)  a label affixed to, displayed on, incorporated into the surface of, or accompanying, the packaging or container in which the is packaged or contained;

                     (d)  a written instruction, warranty or other information provided with the ;

                     (e)  a an instructional , or a of an instructional , provided with the ;

but does not include any label, packaging or container on which the olympic symbol (within the meaning of the ) is reproduced.

Note:          See also section 10AD for an expanded meaning of in relation to certain imported .

"adaptation" means:

                     (a)  in relation to a in a non - dramatic form a version of the (whether in its original language or in a different language) in a dramatic form;

                     (b)  in relation to a in a dramatic form a version of the (whether in its original language or in a different language) in a non - dramatic form;

                   (ba)  in relation to a being a --a version of the (whether or not in the language, code or notation in which the was originally expressed) not being a reproduction of the ;

                     (c)  in relation to a (whether in a non - dramatic form or in a dramatic form):

                              (i)  a translation of the ; or

                             (ii)  a version of the in which a story or is conveyed solely or principally by means of pictures; and

                     (d)  in relation to a --an arrangement or transcription of the .

"alternative dispute resolution processes" means procedures and services for the resolution of disputes, and includes:

                     (a)  conferencing; and

                     (b)  mediation; and

                     (c)  neutral evaluation; and

                     (d)  case appraisal; and

                     (e)  conciliation; and

                      (f)  procedures or services specified in the regulations;

but does not include:

                     (g)  arbitration; or

                     (h)  court procedures or services.

 (b) to (f) of this do not limit  (a) of this .

"approved label" means a label approved under:

                     (a)  Part 2 of the Agvet Code of a State or of the Northern Territory; or

                     (b)  Part 2 of the Agvet Code of the participating Territories within the meaning of the .

"archives" means:

                     (a)  archival material in the custody of:

                              (i)  the National of ; or

                             (ii)  the Office of New South Wales established by the Archives Act 1960 of the State of New South Wales; or

                            (iii)  the Public Office established by the Public Ac t 1973 of the State of Victoria; or

                            (iv)  the Office of Tasmania established by the Archives Act 1965 of the State of Tasmania; or

                    (aa)  archival material in the custody of a person (other than the National of ) in accordance with an arrangement referred to in of the ; or

                     (b)  a collection of documents or other material to which this applies by virtue of subsection (4).

"artistic work" means:

                     (a)  a painting, , , or , whether the is of artistic quality or not;

                     (b)  a or a model of a , whether the or model is of artistic quality or not; or

                     (c)  a of artistic craftsmanship whether or not mentioned in  (a) or (b);

but does not include a circuit layout within the meaning of the .

"Australia" includes the external Territories.

"author" , in relation to a , means the person who took the .

"authorized officer" , in relation to a library or , means the of that library or or a person by that officer to act on his or her behalf.

"available online" , in relation to , has the meaning given by section 195CF.

"body administering" :

                     (a)  an --means:

                              (i)  if the is a body corporate--the ; or

                             (ii)  otherwise--the body or person (including ) having ultimate responsibility for administering the ; or

                     (b)  a library or --means:

                              (i)  if the library or is an covered by  (aa) of the of --the person having the custody of the in accordance with the relevant arrangement mentioned in that ; or

                             (ii)  otherwise--the body (whether incorporated or not) or person (including ) having ultimate responsibility for administering the library or .

"broadcast" means a communication by a service within the meaning of the . For the purposes of the application of this to a service provided under a , assume that there is no conditional access system that relates to the service.

Note:          A service does not include the following:

(a)    a service (including a teletext service) that provides only data or only text (with or without associated images); or

(b)    a service that makes programs available on demand on a point-to-point basis, including a dial-up service.

"broadcasts collecting society" means the body declared to be a by a declaration that is in force under section 113V and to which subparagraph 113V(4)(a)(ii) applies.

"building" includes a structure of any kind.

"carriage service provider" has the same meaning as in the .

"carrier" has the same meaning as in the .

"chemical product" has the same meaning as in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 .

"cinematograph film" means the aggregate of the visual images an or thing so as to be capable by the use of that or thing:

                     (a)  of being shown as a moving picture; or

                     (b)  of being another or thing by the use of which it can be so shown;

and includes the aggregate of the sounds a sound - track associated with such visual images.

"circumvention device" for a means a , component or product (including a ) that:

                     (a)  is promoted, advertised or marketed as having the purpose or use of circumventing the ; or

                     (b)  has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the ; or

                     (c)  is primarily or solely designed or produced to enable or facilitate the circumvention of the .

For the purposes of this , has the same meaning as in section 47AB.

"circumvention service" for a means a service that:

                     (a)  is promoted, advertised or marketed as having the purpose or use of circumventing the ; or

                     (b)  has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the ; or

                     (c)  is primarily or solely designed or produced to enable or facilitate the circumvention of the .

"collecting society" means:

                     (a)  a ; or

                     (b)  the ; or

                     (c)  a body that a declaration in force under section 135ZZT declares to be a for the purposes of Part VC; or

                     (d)  a body that a declaration in force under section 135ZZZO declares to be a for the purposes of Part VD; or

                     (e)  a company that a declaration in force under section 153F declares to be a for the purposes of Division 2 of Part VII.

"communicate" means make or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a or other subject-matter, including a or within the meaning of this Act.

"computer program" means a set of statements or instructions to be used or in a computer in to bring about a certain result.

"construction includes erection, and reconstruction" has a corresponding meaning.

"controls access" : a , product, technology or component (including a ) controls access to a or other subject-matter if it requires the application of information or a process, with the permission of the owner or exclusive licensee of the in the or other subject-matter, to gain access to the or other subject-matter.

"copy" :

                     (a)  of a --means a reproduction; or

                     (b)  of a --means a the , or a substantial part of the , derived or from a produced on the making of the ; or

Note:       See also  (6).

                     (c)  of a --means any or thing in which the visual images or sounds comprising the film are embodied; or

Note:       See also  (5).

                     (d)  of a --includes:

                              (i)  a a of the whole or a part of the ; or

                             (ii)  a of a of the whole or a part of the .

"copyright material" means anything in which subsists.

Note:          This does not apply in Subdivision E of Division 3 of Part VI or Division 2 of Part VII (use of for ): see sections 153DF and 182B.

"delivery period" has the meaning given by  195CD(2).

"device" includes a plate.

"dramatic work" includes:

                     (a)  a choreographic show or other dumb show; and

                     (b)  a scenario or script for a ;

but does not include a as distinct from the scenario or script for a .

"drawing" includes a diagram, map, chart or plan.

"educational institution" means:

                    (aa)  an at which education is provided at pre - school or kindergarten standard; or

                     (a)  a school or similar at which full - time primary education or full - time secondary education is provided or both full - time primary education and full - time secondary education are provided; or

                     (b)  a university, a college of advanced education or a technical and further education ; or

                     (c)  an that conducts courses of primary, secondary or tertiary education by correspondence or on an external study basis; or

                     (d)  a school of nursing; or

                     (e)  an undertaking within a hospital, if the undertaking conducts courses of study or training in the provision of:

                              (i)  medical services; or

                             (ii)  services incidental to the provision of medical services; or

                      (f)  a teacher education centre; or

                     (g)  an with the principal function of providing courses of study or training for any of the following purposes:

                              (i)  general education;

                             (ii)  the preparation of people for a particular occupation or profession;

                            (iii)  the continuing education of people engaged in a particular occupation or profession;

                            (iv)  the teaching of English to people whose first language is not English; or

                     (h)  an undertaking within a an , if:

                              (i)  the is of a kind referred to in a preceding of this ; and

                             (ii)  the principal function, or one of the principal functions, of the undertaking is the provision of teacher training to people engaged as instructors in of a kind mentioned in a preceding of this , or of 2 or more such kinds; or

                      (i)  an , or an undertaking within a an of a kind referred to in a preceding of this , if:

                              (i)  the principal function, or one of the principal functions, of the , or undertaking, is the providing of material to of a kind referred to in a preceding of this , or 2 or more such kinds; and

                             (ii)  that activity is undertaken for the purpose of helping those in their teaching purposes.

"electronic literary or music item" means:

                     (a)  a book in electronic form; or

                     (b)  a periodical publication in electronic form; or

                     (c)  sheet music in electronic form;

regardless of whether there is a printed form.

"electronic rights management information" , in relation to a or other subject-matter, means information that:

                     (a)  is electronic; and

                     (b)  either:

                              (i)  is or was attached to, or is or was , a of the or subject-matter; or

                             (ii)  appears or appeared in connection with a communication, or the making available, of the or subject-matter; and

                     (c)  either:

                              (i)  identifies the or subject-matter, and its or owner (including such information represented as numbers or codes); or

                             (ii)  identifies or indicates some or all of the terms and conditions on which the or subject-matter may be used, or indicates that the use of the or subject-matter is subject to terms or conditions (including such information represented as numbers or codes).

"eligible rights holder" has the meaning given by  113V(9).

"engraving" includes an etching, lithograph, product of photogravure, woodcut, print or similar , not being a .

"exclusive licence means a in writing, signed by or on behalf of the owner or of , the licensee, to the exclusion of all other persons, to do an act that, by virtue of this Act, the owner of the would, but for the , have the exclusive right to do, and exclusive licensee" has a corresponding meaning.

"free-to-air broadcast" means:

                     (a)  a by a national service, commercial service or community service within the meaning of the ; or

                     (b)  a by a service within the meaning of the that does no more than transmit program material supplied by National Indigenous TV Limited.

"future copyright" means to come into existence at a future time or upon the happening of a future event.

"government" has the meaning given by  182B(1).

"government copy" has the meaning given by  182B(1).

"infringing copy" means:

                     (a)  in relation to a --a reproduction of the , or of an of the , not being a of a of the or ;

                     (b)  in relation to a --a of the not being a associated with visual images forming part of a ;

                     (c)  in relation to a --a of the film;

                     (d)  in relation to a or a --a of a of the or a a of the ; and

                     (e)  in relation to a published edition of a --a facsimile of the edition;

being an (which may be an electronic reproduction or of the , , film, or edition) the making of which constituted an infringement of the in the , , film, or edition or, in the case of an imported without the of the owner of the , would have constituted an infringement of that if the had been made in by the importer, but does not include:

                      (f)  a whose importation does not constitute an infringement of that ; or

                     (g)  a whose importation does not constitute an infringement of that ; or

                     (h)  a of a whose importation does not infringe that ; or

                      (i)  a of a whose importation does not infringe that ; or

                      (j)  a of an whose importation does not infringe that .

"institution" includes an .

"international agreement" means:

                     (a)  a convention to which is a party; or

                     (b)  an agreement or arrangement between and a foreign country, including an agreement, arrangement or understanding between a Minister and an official or of a foreign country.

"international organization to which this Act applies" means an that is declared by regulations made for the purposes of section 186 to be an , and includes:

                     (a)  an organ of, or office within, an that is so declared; and

                     (b)  a commission, council or other body established by such an or organ.

"judicial proceeding" means a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath.

"key cultural institution" has the meaning given by section 113L.

"law of the Commonwealth" includes a law of a Territory.

"licensed copying or communicating" has the meaning given by  113Q(2).

"literary work" includes:

                     (a)  a table, or compilation, expressed in words, figures or symbols; and

                     (b)  a or compilation of .

"manuscript" , in relation to a literary, dramatic or , means the document embodying the as initially prepared by the , whether the document is in hardcopy form, electronic form or any other form.

"material form" , in relation to a or an of a , includes any form (whether visible or not) of storage of the or , or a substantial part of the or , (whether or not the or , or a substantial part of the or , can be reproduced).

"National Library material" has the meaning given by section 195CE.

"National Library Minister" means the Minister administering the National Library Act 1960 .

"non-infringing accessory" means an made in:

                     (a)  a country that is a party to the International Convention for the Protection of Literary and concluded at Berne on 9 September 1886 as revised from time to time; or

                     (b)  a country that is a of the World Trade and has a law that provides consistently with the for:

                              (i)  the ownership and duration of or a related right in , and ; and

                             (ii)  the owner of the or related right to have rights relating to the reproduction of the , or ;

where:

                     (c)  the making of any of a , or any reproduction of a published edition of a , that is, or is on, or is , the ; or

                     (d)  the making of any a , or any of a , that is the ;

was by the owner of the in that country in the , edition, or film, as the case may be.

"non-infringing book" means a book made (otherwise than under a compulsory ) in a country specified in regulations made for the purposes of  184(1), being a book whose making did not constitute an infringement of any subsisting in a , or in a published edition of a , under a law of that country.

"non-infringing copy" :

                     (a)  in relation to a , has the meaning given by section 10AA; and

                     (b)  in relation to a , has the meaning given by section 10AB; and

                     (c)  in relation to an , has the meaning given by section 10AC.

"officer in charge" means:

                     (a)  in relation to --the archivist or other person having, for the time being, immediate care and control of the collection comprising the ; and

                     (c)  in relation to a library--the librarian or other person having, for the time being, immediate care and control of the collection comprising the library.

"organisation assisting persons with a disability" means:

                     (a)  an ; or

                     (b)  a not-for-profit organisation with a principal function of providing assistance to persons with a disability (whether or not the organisation has other principal functions).

"original form" : a library or holds in if the material is held in the collection comprising the library or in a form that embodies the material as initially prepared by the or of the material.

Example:    A of a literary, dramatic or .

Note:          This does not apply in Division 6 of Part III: see  54(6).

"Parliament" : see section 12.

"person with a disability" means a that causes the person difficulty in reading, viewing, hearing or comprehending in a particular form.

"photograph means a product of or of a process similar to , other than an or thing in which visual images forming part of a have been embodied, and includes a product of xerography, and " has a corresponding meaning.

"plate" includes a stereotype, stone, block, mould, matrix, transfer, negative or other similar appliance.

"private and domestic use" means on or off domestic premises.

"prospective owner" means:

                     (a)  in relation to a that is not the subject of an agreement of a kind referred to in  19(1)--the person who be the owner of the on its coming into existence; or

                     (b)  in relation to a that is the subject of such an agreement--the person in whom, by virtue of that , the vest on its coming into existence.

"qualifying country" means:

                     (a)  a country that is a party to the International Convention for the Protection of Literary and concluded at Berne on 9 September 1886 as revised from time to time; or

                     (b)  a country that is a of the World Trade and has a law that provides consistently with the for:

                              (i)  the ownership and duration of or a related right in , and ; and

                             (ii)  the owner of the or related right to have rights relating to the reproduction of the , or .

"reception equipment" means equipment whose operation, either alone or together with other equipment, enables people to hear or see a or other subject-matter that is .

"record" includes a disc, tape, paper, electronic file or other in which sounds are embodied.

"record embodying" a means:

                     (a)  a produced upon the making of the ; or

                     (b)  a that:

                              (i)  embodies the ; and

                             (ii)  is derived or from a produced upon the making of the .

"registered charity" means an entity that is registered under the as the type of entity mentioned in column 1 of item 1 of the table in  25-5(5) of that Act.

"Registrar" means the of the Tribunal provided for by section 170.

"remuneration notice" means:

                     (a)  a notice mentioned in section 113Q; or

                     (b)  a notice mentioned in section 135ZZL; or

                     (c)  a notice mentioned in section 135ZZZJ.

"retransmission" , in relation to a , means a of the , where:

                     (a)  the content of the is unaltered (even if the technique used to achieve is different to the technique used to achieve the original transmission); and

                     (b)  either:

                              (i)  in any case--the is simultaneous with the original transmission; or

                             (ii)  if the is in an area that has, wholly or partly, different local time to the area of the original transmission--the is delayed until no later than the equivalent local time.

"rules" , of a , means the constitution of the society.

"satellite BSA licence" means a allocated under section 38C of the .

"satellite BSA licensee" means the licensee of a .

"sculpture" includes a cast or model made for purposes of .

"simulcasting" means simultaneously a service in both analog and digital form in accordance with the requirements of the or of any prescribed legislative provisions relating to digital .

"sound broadcast" means sounds otherwise than as part of a .

"sound recording" means the aggregate of the sounds a .

"sound-track" , in relation to visual images forming part of a , means:

                     (a)  the part of any or thing, being an or thing in which those visual images are embodied, in which sounds are embodied; or

                     (b)  a disc, tape or other in which sounds are embodied and which is made available by the of the film for use in conjunction with the or thing in which those visual images are embodied.

"sufficient acknowledgement" , in relation to a , means an acknowledgement identifying the by its title or other description and, unless the is anonymous or pseudonymous or the has previously agreed or that an acknowledgement of his or her is not to be made, also identifying the .

"technological protection measure" means:

                     (a)  an ; or

                     (b)  a , product, technology or component (including a ) that:

                              (i)  is used in or a by, with the permission of, or on behalf of, the owner or the exclusive licensee of the in a or other subject-matter; and

                             (ii)  in the normal course of its operation, prevents, inhibits or restricts the doing of an act comprised in the ;

                            but does not include such a , product, technology or component to the extent that it:

                            (iii)  if the or other subject-matter is a or (including a computer game)--controls geographic market segmentation by preventing the playback in of a of the or other subject-matter acquired outside ; or

                            (iv)  if the is a that is a machine or --restricts the use of goods (other than the ) or services in relation to the machine or .

For the purposes of this , has the same meaning as in section 47AB.

"television broadcast" means visual images by way of television, together with any sounds for reception along with those images.

"the Australian Broadcasting Commission" means that was established under the Broadcasting and Television Act 1942 .

"the Australian Broadcasting Corporation" means established under the .

"the Commonwealth" includes the Administration of a Territory.

the Copyright Act, 1911 means the Imperial Act known as the Copyright Act, 1911.

"the Copyright Tribunal or the Tribunal" means the Tribunal of provided for by Part VI, and includes a of that Tribunal exercising powers of that Tribunal.

"the Crown" includes in right of a State and in right of the Capital Territory and the Northern Territory and also includes the Administration of a Territory other than the Capital Territory or the Northern Territory.

"the National Library" means established under the National Library Act 1960-1967 .

"the Special Broadcasting Service" means that was referred to in of the .

"the Special Broadcasting Service Corporation" means the body corporate preserved and continued in existence as under of the .

"to the public" means within or outside .

"TRIPS Agreement" means the Agreement on Trade-Related Aspects of Intellectual Property Rights set out in Annex 1C to the Marrakesh Agreement establishing the World Trade , done at Marrakesh on 15 April 1994.

Note:          The English text of the Marrakesh Agreement establishing the World Trade is set out in Treaty Series 1995 No. 8.

"will" includes a codicil.

"work" means a literary, dramatic, musical or .

"work of joint authorship" means a that has been produced by the collaboration of two or more and in which the contribution of each is not separate from the contribution of the other or the contributions of the other .

"works collecting society" means a body declared to be a by a declaration that is in force under section 113V and to which subparagraph 113V(4)(a)(i) applies.

"writing means a mode of representing or reproducing words, figures or symbols in a visible form, and written" has a corresponding meaning.

          (1A)  Without limiting the meaning of the expression educational purposes in this Act, a of the whole or a part of a or other subject-matter shall be taken, for the purposes of the provision in which the expression appears, to have been made, used or retained, as the case may be, for the educational purposes of an if:

                     (a)  it is made or retained for use, or is used, in connection with a particular course of instruction provided by the ; or

                     (b)  it is made or retained for inclusion, or is included, in the collection of a library of the .

             (2)  Without limiting the meaning of the expression reasonable portion in this Act, where a literary, dramatic or (other than a ) is contained in a published edition of that , being an edition of not less than 10 pages, a of part of that , as it appears in that edition, shall be taken to contain only a reasonable portion of that if the pages that are copied in the edition:

                     (a)  do not exceed, in the aggregate, 10% of the number of pages in that edition; or

                     (b)  in a case where the is divided into chapters exceed, in the aggregate, 10% of the number of pages in that edition but contain only the whole or part of a single chapter of the .

          (2A)  Without limiting the meaning of the expression reasonable portion in this Act, if a person makes a reproduction of a part of:

                     (a)  a published (other than a or an electronic compilation, such as a database); or

                     (b)  a published ;

being a that is in electronic form, the reproduction is taken to contain only a reasonable portion of the if:

                     (c)  the number of words copied does not exceed, in the aggregate, 10% of the number of words in the ; or

                     (d)  if the is divided into chapters--the number of words copied exceeds, in the aggregate, 10% of the number of words in the , but the reproduction contains only the whole or part of a single chapter of the .

          (2B)  If a published literary or is contained in a published edition of the and is separately available in electronic form, a reproduction of a part of the is taken to contain only a reasonable portion of the if it is taken to do so either under  (2) or (2A), whether or not it does so under both of them.

          (2C)  If:

                     (a)  a person makes a reproduction of a part of a published literary or ; and

                     (b)  the reproduction is taken to contain only a reasonable portion of the under  (2) or (2A);

 (2) or (2A) does not apply in relation to any subsequent reproduction made by the person of any other part of the same .

             (3)  In this Act, unless the contrary intention appears:

                     (e)  a reference to in right of a State shall be read as including a reference to in right of the Capital Territory and the Northern Territory; and

                     (g)  a reference to the making, by reprographic reproduction, of a of a document, or of the whole or a part of a , shall be read as a reference to the making of a facsimile of the document or the whole or that part of the , being a facsimile of any size or form; and

                      (j)  a reference to a microform of the whole or a part of a shall be read as a reference to a of the whole or a part of the produced by miniaturizing the graphic symbols of which the is composed; and

                     (k)  a reference to a periodical publication shall be read as a reference to an issue of a periodical publication and a reference to contained in the same periodical publication shall be read as a reference to contained in the same issue of that periodical publication; and

                  (ma)  a reference to a relevant declaration, in relation to the making, in reliance on section 49, of a of the whole or a part of a , shall be read as a reference to:

                              (i)  in a case where the is made in reliance on  49(2)--a declaration of the kind referred to in  49(1) that is furnished in relation to the making of the ; or

                             (ii)  in a case where the is made in reliance on  49(2C)--a declaration of the kind referred to in  49(2C)(b) that is made in relation to the making of the ; or

                            (iii)  in any case--a declaration of the kind referred to in  49(5) that is made in relation to the making of the ; and

                     (n)  a reference to a State shall be read as including a reference to the Capital Territory and the Northern Territory and Norfolk Island and a reference to a Territory shall be read as not including a reference to the Capital Territory or the Northern Territory or Norfolk Island.

          (3A)  For the purposes of this Act, something held in, or forming part of, the collection of any covered by  (aa) of the of in  (1) is taken not to be held in, and not to form part of, the collection of the National of .

Note:           (aa) of the of covers archival material in the custody of a person other than the National of under an arrangement referred to in of the .

             (4)  Where:

                     (a)  a collection of documents or other material of historical significance or public interest that is in the custody of a body, whether incorporated or unincorporated, is being maintained by the body for the purpose of conserving and preserving those documents or other material; and

                     (b)  the body does not maintain and operate the collection for the purpose of deriving a ;

 (b) of the of in  (1) applies to that collection.

Example:    Museums and galleries are examples of bodies that could have collections covered by  (b) of the of .

             (5)  A reference to a of a includes a reference to any form (whether visible or not) of storage of a , or a substantial part of a , (whether or not the of the film, or a substantial part of the film, can be reproduced).

             (6)  A reference to a of a includes a reference to any form (whether visible or not) of storage of the , or a substantial part of the , (whether or not the of the , or a substantial part of the , can be reproduced).



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