State Council publishes new Copyright Law Revision Draft

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On 6 June, the State Council Legal Affairs Office published a new draft to revise the Copyright Law (h/t China IPR). This is the third draft that has been published, reviving an process that had fallen someway out of the spotlight during the turbulent first year of the Xi administration. The State Council is accepting responses and opinions concerning this draft until 5 July. After this, it will conceivably be sent to the National People’s Congress for further reading. I am currently comparing the new version with the second revision draft, published by the National Copyright Administration in 2012, and will publish a full translation and comment in due course. In the mean time, the State Council’s accompanying explanatory document is translated below.

Explanation of the “Copyright Law of the People’s Republic of China” (Submission Version of the Revision Draft)

In order to smoothly carry out the revision work of the Copyright Law, the National Copyright Association has established a special “National Copyright Administration Leading Group for Copyright Law Revision Work” and a “National Copyright Administration Expert Committee for Copyright Law Revision Work”, these broadly solicited opinions and suggestions from all walks of society concerning work to revise the law, and have entrusted three education and research work units that are relatively influential domestically in the area of copyright to draft separate expert suggestion drafts for the revision of the Copyright Law. After the first versions of the Copyright Law Revision Drafts were created, the National Copyright Administration solicited opinions respectively from the social public, legislative, judicial and administrative departments, as well as corresponding social organizations, through its official website and special letters, it organized or participated in specific conferences directed at soliciting opinions in specific areas, specific sectors of specific departments, and heard suggestions and opinions in face-to-face meetings with relevant interested subjects. More than a year ago, on the basis of broadly listening to the opinions of the social public and domestic and foreign relevant organs, and through repeated research, analysis and argumentation, it created the “Copyright Law of the People’s Republic of China” (Submission Version of the Revision Draft) (hereafter simply named Submission Version”). Hereby, the relevant content from the Submission Version is explained as follows:

Concerning the necessity of the revision

Copyright law is an important component part of the Socialist legal system with Chinese characteristics, it is the basic norm to regulate property and personal relationships in the process of creation, dissemination and use. Since our country’s current Copyright Law took effect on 1 June 1991, it has had a positive role in encouraging intellectual creation, protecting the rights of authors, stimulating the development of the cultural industries and satisfying the spiritual and cultural demands of the popular masses, generally speaking, it is a good law.

However, in the 22 years since the Copyright Law took effect, the international and domestic circumstances in which our country finds itself have seen profound change, first that our country successfully realized an economic transformation and a social change of tracks, it established the Socialist market economy system, a pluralized structure of social interests has been basically created, and copyright has become more respected; second, global science and technology has developed swiftly, the rapid development and broad use of digital and online technology has changed the ways in which works are created and disseminated, and traditional copyright protection systems face new challenges; third, economic globalization has further deepened, and intellectual property rights – including copyright – have become important vehicles of international trade, as a member of the World Trade Organization, in handling international trading affairs, copyright protection has become an unavoidable and important issue; fourth, since reform and opened up, and especially since entering the new century, our country’s development concepts have seen profound change, strategic policy decisions have been made, such as persisting in the scientific development view, building an innovative country and moving the grand development and grand flourishing of culture forward, the role of intellectual property rights – including copyright – in transforming economic development methods, raising the country’s core competitiveness and stimulating the grand flourishing and development of culture has become more prominent every day. In the face of new trends, new circumstances and new changes, even though the current Copyright Law has been revised twice in 2001 and 2010, it is constrained by its passivity and departmentality, it has not been able to completely reflect and embody the profound changes in our country’s economy and society, the current copyright law “insufficiently protects copyright law, it is difficult to effectively restrain acts of infringement, it insufficiently stimulates the vigour of creators; copyright licensing mechanisms and trading rules are not smooth, it is difficult to guarantee that users are able to gain authorization lawfully, conveniently and effectively, and to disseminate and use works”, these two main contradictions have not been effectively resolved. Because of this, in order to respond to the new trends, new circumstances and new changes of our country’s economic development, technological progress, cultural flourishing, deepening of reform and opening up, and our enhanced intentional position, it is urgently necessary to carry out an active and comprehensive revision of the current Copyright Law.

II, Concerning the main content of the revision

In this revision of the Copyright Law, we have based ourselves on the basic national condition of being in the primary stage of Socialism, upheld the idea of “broadly pooling wisdom and resolving problems”, followed by the principles of independence, balance and internationalization, strived to resolve prominent problems that exist in the reality of copyright protection in our country, and persisted in creating the draft under conditions of openness and transparency.

The Submission Version will revise the current six chapters and 61 articles of the Copyright Law into eight chapters and 81 articles. The main content revisions include:

(1) Encouraging creation, integrating the rights system.

In order to resolve the problem of copyright definitions in practice, the Submission Version has revised aspects such as the objects of rights, the content of rights, the ownership of rights, the protection period of rights, etc., which are mainly manifested as:

1. Concerning the objects of rights. The Submission Version upgrades the definition of works in the “Implementation Regulations of the Copyright Law” into legal provisions; it changes the term “cinematographic works or works that are created in a way similar t cinematography” into “audiovisual works”, and deletes the provisions concerning the object “audio works”, computer files are protected as written works.

2. Concerning the content of rights. The Submission version re-integrates the content of rights, first, it simplifies the items listed under “personal rights” and “property rights”, but does not reduce their powers and functions, it even slightly enhances them, second, it redefines the boundaries of rights by starting from practice. The main revisions include: first, the seventeen types of rights in the current Copyright Law are re-integrated into thirteen types, the four types of right to revision, right to screen, right to produce films and right to compilation are abolished, their powers and functions are covered respectively by the right to protect the integrity of the work, the right of performance, the right to alter and the right of duplication; second, the right of pursuit is added (the wording ‘right of pursuit’ is not present in the Submission Version), at the same time, in consideration of the fact that its essence is the right to demand remuneration, and is different from the basic rights in copyright, it has been listed as an individual clause; third, the right of broadcast is revised into a right of transmission, which applies to the dissemination of works through non-interactive means, in order to resolve questions in practice about fixed-time transmission online, live transmission, etc., fourth, performers’ right to rental as well as a right to remuneration in their audiovisual performances are added, increasing the right to remuneration that recording creators have over other persons’ use of their recorded works by way of performance or transmission, the rights that radio and television stations enjoy are changed from a “right of prohibition” to a “right to licence”, etc.

3. Concerning the ownership of rights. The Submission Version reflects the principle of parties’ “autonomy of will”, the main revisions are: first, the statutory ownership of rights in audiovisual works in the current Copyright Law belongs to producers, this is adjusted to giving priority to agreements between the parties, at the same time, mechanisms are added for the producers of audiovisual work to enjoy their interests; second, the principle of priority for agreement between parties on the ownership of rights in works created in the course of a profession is established, and at the same time, rights for counterparts have been created in view of different statutory circumstances; third, in order to resolve the problem that, under the specific condition where an original copy is the only carrier of the work, the destruction of the original copy may influence the exercise of copyright, provisions for copyright protection of fine art works that are unique carriers have been added.

4. Concerning the term of protection for works. On the basis of the demands of related domestic organizations and related international treaties, the Submission Version changes the period of protection of photographic works to life plus fifty years.

5. Concerning the limitations of rights. According to international provisions, the scope of limitations of rights is suitably adjusted, and principle-based standards are added to limit rights.

(2) Stimulating use, adjusting authorization mechanisms and market transaction rules.

The consistency between protecting copyright holders’ rights and stimulating the broad dissemination of works has been maintained, and scientific, rational and standardized copyright authorization mechanisms and transaction rules have been established, changing the difficulty that on the one hand, copyright holders in our country cannot gain due respect for their rights, and on the other hand, users cannot obtain authorization to a large amounts of works through lawful channels, this is a focus content of this revision, the main revisions include:

1. On the basis of the social practice of copyright transactions in our country over more than two decades and international experience, provisions concerning the registration of copyrights and related rights have been added, in order to provide institutional guarantees to reduce copyright transaction risk and avoid disputes about ownership.

2. In order to effectively resolve the problem that “one right is sold twice” in the process of copyright law transactions, and realistically protect the lawful rights and interests of the counterparts in contracts, provisions on registration of rights in the process of concluding exclusive license contracts and contracts to transfer possession have been added, guaranteeing security in copyright transactions.

3. On the basis of related international treaties and opinions from various walks of society, the five kinds of statutory copyright licensing in the current Copyright Law are adjusted, the statutory licence for reprinting textbooks, newspapers and periodicals is maintained, the two statutory licenses for radio and television stations are merged into one, and the statutory licence for recordings is abolished. At the same time, provisions concerning the application of statutory licenses, and the legal liability for violating statutory obligations have been clarified.

4. In order to respond to the demands of the vast use of works in the digital network environment, and in order to resolve the reality that under specific circumstances, searching for copyright holders is fruitless but works still need to be used, corresponding provisions were added that permit users to use works in digital form after applying with relevant bodies and posting a use fee.

5. In order to fully give rein to the role of collective copyright managing institutions, and to protect the rights and interests of broad rights holders who are the greatest in number but “do not have a consciousness of protecting rights, do not have legislative discourse, and do not have the capacity to protect their rights”, as well as to eliminate the difficulty that users “are willing to respect the law, are willing to gain authorization for works through lawful channels, and are willing to pay remuneration”, but cannot obtain authorization for a vast amount of works from the hands of rights holders who are “broadly scattered and great in number”, the Submission Version has optimized the design of collective copyright management institutions, and strengthened social supervision and government management.

(3) Strengthening protection, perfecting relief measures.

Striving to strengthen copyright protection strength and effectively preventing acts of infringements are focus points of this revision, the main revisions include:

1. Civil infringement elements are changed from an enumerative form in the current Copyright Law into a descriptive form, expanding the scope for copyright holders to defend their rights.

2. In order to clarify the civil legal liability of network service providers in practice, on the basis of the corresponding provisions of the “Tort Liability Law”, provisions on the civil liability of Internet service providers have been added.

3. The procedural provisions in the current Copyright Law concerning defining compensation amounts are revised into selective [provisions], which permits rights holders to choose between real damage, unlawful income of the infringer, a reasonable multiple of the rights transaction fees or an amount of 1 million Yuan or less. At the same time, compensation amounts have been increased, punitive damages have been added, and the evidentiary burden of infringers have been appropriately enhanced.

4. In the area of administrative legal liability, on the basis of the demands of administrative copyright law enforcement practice, the value of fines have been raised on the basis of the provisions of the “Implementation Regulations of the Copyright Law”, the multiplier of fines has raised from three to five times the illegal business volume and from 100.000 Yuan to 250.000 Yuan, on the other hand, administrative copyright management law department law enforcement measures have been added, in particular the powers to seal up [premises] and detain [goods].

5. Other revisions: the provisions in the current Copyright Law concerning the fact that a good will holder of computer software may continue to use the programme after the payment of a reasonable use fee are changed into an obligation for them to again obtain authorization before usage may continue; this broadens the scope to infer fault with the user of works; in order to mitigate the problems that copyright cases are many in number, rapid in speed and great in pressure in practice, and fully give rein to the superiority of administrative copyright management departments’ specialization, efficiency and convenience, provisions concerning administrative copyright dispute mediation are added.

(4) Scientific standards, perfecting layout and structure.

On the basis of considering our country’s other intellectual property laws and in view of the legislative outline of other countries and regions, the Submission Version carried out an adjustment and perfection of the structure and layout of the current Copyright Law, the main revisions are:

1. Adding chapters and sectors. For instance, two chapters on “limitations of rights” and “technological protection measures and rights management information” were added, as well as a section on “collective copyright management”. Among these, the “limitations of rights” were upgraded from a section in the current Copyright Law to a chapter, the chapter on “technological protection measures and rights management information” and the section on “collective copyright management” were added.

2. Revision of the names of some chapters and sections. “Publications, performances, audiovisual and broadcasts” is renamed into “related rights”, and the titles of the corresponding section are changed from “acts” into “subjects”, for instance, “the publication of books and periodicals” is changed into “publishers”; “copyright licensing, use and transfer” is revised into “the exercise of rights”; “legal liability and law enforcement measures” is changed into “the protection of rights.”

3. Adjustment of the sequence of chapters and sections. In terms of the arrangement of chapters and sections, the Submission Version adopts an order in which rights (copyrights and related rights) come firs, then come the limitations of rights, the exercise of rights, technological protection measures and rights management information, and finally the protection of rights, this structure conforms more to the system and logic of the law.

4. Clear provisions have been made concerning linkages to other laws, these are mainly aimed at the criminal punishment of infringing acts, parties applying for pre-trial injunctions, preservation of assets, preservation of evidence as well as the judicial recognition of mediations and agreements, correspondingly, linking provisions have been provided concerning the application of administrative redress, administrative litigation and other such laws.

5. In view of the fact that the main content of the “Computer Software Protection Regulations” and the “Regulations on Implementing International Copyright Treaties” have been absorbed in the Submission Version, it is planned to abolish the “Computer Software Protection Regulations” and the “Regulations on Implementing International Copyright Treaties”.

III, Concerning the situation of opinion solicitation.

In this revision of the Copyright Law, the National Copyright Administration has persisted in legislating with open doors throughout, it has continued the legislative spirit of “scientific legislation, democratic legislation, concentrating the intelligence of the people, reflecting the popular will, and concentrating a consensus”, the entire legislative revision work has been carried out in the sunlight, with a rather high degree of social participation. In the process of creating the Submission Version, we have passed through two rounds of online solicitation of opinions from all walks of society, and have passed two rounds of solicitation of opinions of relevant legislative, judicial and administrative departments and related organizations in written form. At the same time as the second open solicitation of opinion from society, the National Copyright Organization organized or participated in more than 20 dedicated conferences oriented toward opinion solicitation aimed at specific areas, specific sectors and specific departments, and has head the opinions and suggestions of the State Administration of Press, Publications, Radio, Film and Television, the Ministry of Industry and Information Technology, the Chinese Federation of Cultural Circles, the All-China News Workers’ Association, the China Periodical Association, the China Film Directors’ Association, the Internet Society of China, the China Film Company, software companies and other such interested subjects and controlling departments. In the entire process of opinion solicitation, more than 1800 opinions of all kinds were received from at home and abroad.

 
关于《中华人民共和国著作权法》
(修订草案送审稿)的说明

为顺利推进著作权法修订工作,国家版权局专门成立了“国家版权局著作权法修订工作领导小组”和“国家版权局著作权法修订工作专家委员会”,广泛征求社会各界对修法工作的意见和建议,委托国内著作权领域影响较大的三家教学科研单位分别起草著作权法修订专家建议稿。著作权法修订草案初稿形成后,国家版权局通过官方网站和专函方式,分别向社会公众和立法、司法、行政部门以及相关社会团体征求意见,组织或参与了针对特定领域、特定行业和特定部门的定向征求意见专题会议,面对面听取相关利益主体的意见和建议。一年多来,在广泛听取社会公众和国内外有关机构意见基础上,经过反复研究和分析论证,形成了《中华人民共和国著作权法》(修订草案送审稿)(以下简称“送审稿”)。现就送审稿的有关内容说明如下:
一、关于修订的必要性
著作权法是中国特色社会主义法律体系的重要组成部分,是调整作品创作、传播和使用过程中财产关系和人身关系的基本规范。我国现行著作权法自1991年6月1日起施行以来,对鼓励智力创作、保护作者权利、促进文化产业的发展、满足人民群众的精神文化需求发挥了积极作用,总的来看是一部好的法律。
但是,著作权法实施二十二年来,我国所处的国际国内形势发生了深刻变化,一是我国成功实现经济转型社会转轨,确立了社会主义市场经济制度,社会利益多元化格局基本形成,著作权得到进一步尊重;二是全球科学技术迅猛发展,数字和网络技术的快速发展和广泛运用,改变了作品创作和传播方式,著作权传统保护制度面临新的挑战;三是经济全球化进一步深入,包括著作权在内的知识产权已经成为国际贸易的重要载体,我国作为世界贸易组织的成员,在处理国际经贸关系中,著作权保护已经成为不可回避的重要问题;四是改革开放以来,特别进入新世纪以来,我国的发展理念发生了根本改变,作出了坚持科学发展观、建设创新型国家和推进文化大发展大繁荣等战略决策,包括著作权在内的知识产权在转变经济发展方式、提高国家的核心竞争力、促进文化繁荣发展的作用日益凸显。面对新形势、新情况和新变化,现行著作权法虽然分别于2001年和2010年进行过两次修改,但都囿于其被动性和局部性,没能完全反映和体现我国经济社会发生的深刻变化,现行著作权法“对著作权的保护不够,难以有效遏制侵权行为,不足以激励创作者的积极性;著作权授权机制和交易规则不畅,难以保障使用者合法、便捷、有效地取得授权和传播使用作品”这两大主要矛盾没有得到有效解决。因此,为适应我国经济发展、科技进步、文化繁荣、改革开放深入、国际地位提升的新形势、新情况和新要求,亟须对现行著作权法进行主动、全面的修订。
二、关于修订的主要内容
本次修订著作权法,我们立足社会主义初级阶段的基本国情,坚持“集思广益、解决问题”的理念,遵循独立性、平衡性和国际性的原则,着力解决我国著作权保护实际中存在的突出问题,坚持在公开透明的条件下形成草案。
送审稿将现行著作权法的六章六十一条修订为八章,九十条。其主要修改内容有:
(一)鼓励创作,整合权利体系。
为解决实践中著作权的确定性问题,送审稿对著作权保护的权利客体、权利内容、权利归属和权利保护期等方面进行了修改,主要表现在:
1.关于权利客体。送审稿将《著作权法实施条例》中关于作品的定义上升为法律规定;将“电影作品和以类似摄制电影的方法创作的作品”更名为“视听作品”,取消相关权客体“录像制品”的规定;增加“实用艺术作品”,赋予其二十五年的保护期;将“计算机软件”修改为“计算机程序”,以文字作品保护计算机文档。
2.关于权利内容。送审稿对权利内容进行了重新整合,一是简化“人身权”和“财产权”的权项,但其权能没有减少,且略有增加,二是从实践出发重新界定权利的边界。主要修改有:一是将现行著作权法规定的十七项权利重新整合为十三项,取消修改权、放映权、摄制权、汇编权等四项权利,其权能分别由保护作品完整权、表演权、改编权和复制权涵盖;二是增加追续权(送审稿中未出现追续权字样),同时考虑到其本质属于报酬请求权,有别于著作权的基本权利,因此单列条款规定;三是将广播权修改为播放权,适用于非交互式传播作品,以解决实践中网络的定时播放和直播等问题,将信息网络传播权适用于交互式传播作品;四是相关权部分,增加表演者的出租权以及其对视听表演的获酬权,增加录音制作者对他人以表演和播放的方式使用其录音制品的获酬权 ,将广播电台电视台享有的权利由“禁止权”修改为“许可权”等。
3.关于权利归属。送审稿体现了当事人“意思自治”原则,主要修改有:一是将现行著作权法关于视听作品的权利法定归属制片者调整为当事人约定优先,同时增加了视听作品作者的利益分享机制;二是确立职务作品的权利归属当事人约定优先的原则,同时针对不同的法定情形规定了相对方的权利;三是为解决在原件是作品的唯一载体的特定情况下,原件的灭失将影响著作权行使的问题,增加关于载体唯一性的美术作品的著作权保护规定。
4.关于权利保护期限。根据国内相关团体的要求和相关国际公约的规定,送审稿将摄影作品的保护期修改为作者终身及死后五十年。
5.关于权利限制。参照国际规则,适当调整权利限制的范围,并增加关于权利限制的原则性标准的规定。
(二)促进运用,调整授权机制和市场交易规则。
保持保护著作权人权利与促进作品广泛传播的一致性,建立科学、合理、规范的著作权授权机制和交易规则,改变当前我国一方面著作权人的权利得不到应有尊重、另一方面使用者无法通过合法途径获得海量作品授权的困境,是本次修法的重点内容,主要修改有:
1.根据我国二十多年的著作权交易的社会实践和国际经验,增加关于著作权和相关权登记的规定,为降低版权交易风险、避免权属争议提供制度保障。
2.为有效解决著作权交易过程中“一权二卖”的问题,切实保护合同相对方的合法权益,增加关于专有许可合同与转让合同缔约过程中权利登记的规定,确保著作权交易安全。
3.根据相关国际公约和社会各界意见,将现行著作权法五类著作权法定许可进行调整,保留教科书和报刊转载法定许可,将广播电台电视台的两项法定许可合并为一项,取消录音法定许可。同时明确规定法定许可的适用条件以及违反法定义务的法律责任。
4.为适应数字网络环境下海量使用作品的需要,为解决特定情况下,著作权人查找无果但仍需使用作品的实际,增加相关规定,允许使用者在向有关机构申请并提存使用费后以数字化形式使用作品。
5.为充分发挥著作权集体管理制度的作用,既最大限度地保护数量最大但自身却又“无维权意识、无立法话语权、无维权能力”的广大著作权人权利,又破解使用者“愿意遵守法律、愿意通过合法途径获得作品授权、愿意承担付酬义务”但又不可能从“分布广、数量大”的权利人手中获得海量作品授权的困境,送审稿优化了著作权集体管理制度的设计,强化了社会监督和政府监管。
(三)强化保护,完善救济措施。
着力强化著作权保护力度、有效防范侵权行为是本次修法的重点内容之一,主要修改有:
1.将民事侵权情形由现行著作权法的列举式修改为概括式,扩大了权利人主张权利的范围。
2.为明确实践中网络服务提供商的民事法律责任,根据《侵权责任法》的相关规定,增加网络服务提供商民事责任的规定。
3.将现行著作权法关于确定损害赔偿数额的顺序性规定修改为选择性,即允许权利人在实际损失、侵权人违法所得、权利交易费用的合理倍数以及一百万元以下的数额之中进行选择。同时提高了法定赔偿数额、增加惩罚性赔偿的规定、适当增加了侵权人的举证责任。
4.在行政法律责任方面,根据著作权行政执法的实践需要,一方面在《著作权法实施条例》规定的基础上提高了罚款的数额,将罚款的倍数由非法经营额的3倍提高为5倍,将10万元提高为25万元,另一方面增加了著作权行政管理部门的执法手段,特别是查封扣押权。
5.其他修改:将现行著作权法关于计算机程序的善意持有者可以支付合理使用费后继续使用该程序的规定修改为其必须重新获得授权后才能继续使用;扩大了作品使用者过错推定的范围;为缓解司法实践中著作权案件数量多、增长快、压力大的问题,充分发挥著作权行政管理部门专业、高效、便捷的优势,增加关于著作权纠纷行政调解的规定。
(四)科学规范,完善体例结构。
在参考我国其他知识产权法律、借鉴其他国家和地区著作权立法体例的基础上,送审稿对现行著作权法的体例结构进行了调整和完善,主要修改有:
1.增加章节内容。增加“权利的限制”和“技术保护措施和权利管理信息”两章,以及“著作权集体管理”一节。其中“权利的限制”由现行著作权法一节提升为一章,新增“技术保护措施和权利管理信息”一章及“著作权集体管理”一节。
2.修改部分章节名称。将“出版、表演、录音录像、播放”修改为“相关权”,并将其相关节的称谓由“行为”修改为“主体”,如将“图书、报刊出版”修改为“出版者”;将“著作权许可使用和转让”修改为“权利的行使”;将“法律责任和执法措施”修改为“权利的保护”。
3.调整章节顺序。送审稿在章节安排上采取先权利(著作权和相关权)、再权利的限制、权利的行使、技术保护措施和权利管理信息,最后权利的保护的顺序,体例结构更加符合法律的体系化和逻辑性。
4.对与其他法律的衔接作出明确规定,主要针对侵权行为的刑事制裁,当事人申请诉前禁令、财产保全、证据保全以及调解协议司法确认,行政复议和行政诉讼等法律适用作出相应的衔接性规定。
5.鉴于《计算机软件保护条例》和《实施国际著作权条约的规定》的主要内容已经被送审稿吸收,拟废止《计算机软件保护条例》和《实施国际著作权条约的规定》。
三、关于征求意见的情况
本次修订著作权法,国家版权局始终坚持开门立法,秉承“科学立法、民主立法、集中民智、反映民意、凝聚共识”的立法精神,整个修法工作在阳光下进行,社会参与度较高。在送审稿形成过程中,我们先后两次通过网络公开征求社会各界意见,两次通过书面形式征求有关立法、司法、行政部门和相关社团的意见。在第二次公开向社会各界征求意见的同时,国家版权局组织或者参与了20多场针对特定领域、特定行业和特定部门的定向征求意见专题会议,面对面听取广电总局、工信部、中国文联、中华全国新闻工作者协会、中国期刊协会、中国电影导演协会、中国互联网协会、电影公司、软件公司等利益相关主体和主管部门的意见和建议。在整个征求意见过程中,共收集国内外各类意见1800余份。

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