- Societal views on intellectual property
The societal views on intellectual property include both the positive criticisms and the negative criticisms of intellectual property.
Critics of the term "intellectual property" argue that the increased use of this terminology coincided with a more general shift away from thinking about things like copyright and patent law as specific legal instruments designed to promote the common good and towards a conception of ideas as inviolable property granted by natural law. The terminological shift coincides with the usage of pejorative terms for copyright infringement such as "piracy" and "theft".
Some critics of intellectual property, such as those in the free culture movement, characterize it as intellectual protectionism, intellectual monopoly or government-granted monopoly, and argue the public interest is harmed by protectionist legislation such as copyright extension, software patents and business method patents. A critique against the idea of intellectual property has been formulated by Eben Moglen in his dotCommunist Manifesto:Society confronts the simple fact that when everyone can possess every intellectual work of beauty and utility--reaping all the human value of every increase of knowledge--at the same cost that any one person can possess them, it is no longer moral to exclude. If Rome possessed the power to feed everyone amply at no greater cost than that of Caesar's own table, the people would sweep Caesar violently away if anyone were left to starve. But the bourgeois system of ownership demands that knowledge and culture be rationed by the ability to pay.
Some critics reject intellectual property altogether. Richard Stallman argues that "the term systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion.…[It] operates as a catch-all to lump together disparate laws…[which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues."  These critics advocate referring to copyrights, patents and trademarks separately, and warn against conflating disparate laws into a collective term.
In 2004 the WIPO was criticized in The Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development - not as an end in itself".
In common law jurisdictions, this was historically done to grant a boon to a king's favorite in the form of letters patent (with some positive advantages to the public, since often these grants were prerequisites before a merchant would undertake production). Jurisdictions with written constitutions generally vest the government with power to grant such monopolies or otherwise provide for the protection of intangible property. For example, Article I, Section 8, Clause 8 of the United States Constitution accords Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The use of the term "intellectual property" is often predicated on considerations such as the "free rider problem" or rationalized by problematizing the fact that owners of computers have the ability to produce and distribute perfect copies of digital works. Proponents of the term tend to address exclusive intellectual property rights policy by valorizing the incentives afforded to authors and inventors in granting them a right to exact a fee from those who wish to manufacture their inventions or publish their expressive works. The analysis associated with the term tend to overlook or even to attempt to defeat the fact that published information is intrinsically free and that in fact this is the whole point of such exclusive rights—to publish, to provide information to the public.
By an economic analysis, the incentives granted for patent rights have sometimes served the public benefit purpose (and promoted innovation) by ensuring that someone who devoted, say, ten years of penury while struggling to develop vulcanized rubber or a workable steamship, could recoup his investment of time and energy. Using monopoly power, the inventor could exact a fee from those who wanted to make copies of his invention. Set it too high, and others would simply try to make a competing invention, but set it low enough and one could make a good living from the fees.
In latter years, the public benefit idea has been downplayed in favor of the idea that the primary purpose of exclusive rights is to benefit the rightsholder, even to the detriment of society at large; and this development has attracted some opponents (Lawrence Lessig, James Boyle, William Patry). The formulation in the US Constitution (noted above) is specifically about public benefit.
Intellectual property rights have limitations, including term limits and other considerations (such as intersections with fundamental rights and the codified or statutory provisions for fair use for copyright works). Some analogize these considerations to public easements, since they grant the public certain rights which are considered essential. Different countries may have subtle or dramatic differences in the scope or protection and permitted uses of different types of intellectual property. A fair use in one jurisdiction can easily be an infringing use elsewhere.
Authors and inventors exercise specific rights, and the "property" referred to in "intellectual property" is the rights, not the intellectual work. A patent can be bought and sold, but the invention that it covers is not owned at all. This is one of many reasons that some believe the term intellectual property to be misleading. Using the term "intellectual monopoly" instead implies that so-called "intellectual property" is actually a government-granted monopoly on certain types of action. Others object to this usage, because this still encourages a natural rights notion rather than a recognition that the rights are purely statutory, and it only characterizes the "property" rather than eliminates the property presupposition. Another approach is simply to avoid a generic term, because of differences in the nature of copyright, patent and trademark law, and try to be specific about which they are talking about, or the term "exclusive rights", which reflects the U.S. Constitutional language.
The basic public policy rationale for intellectual property laws is that they, in some way, provide rights to the inventor or author. The rationale for patent law is that it grants the right to exclude others from making, using, offering for sale, selling, or importing the invention in(to) the country where it was patented. The public policy rationale for trademark rights are that they may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. The public policy rationale for copyright law is that it is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.
Many people believe that intellectual property provides a temporary monopoly that protects the use or exploitation of that good, supported by legal enforcement mechanisms. The United States Supreme Court frequently refers to a patent as providing a "limited monopoly." This is not, however, appropriate usage of the term monopoly in the economic sense. In fact, intellectual property protection cannot properly be thought of as providing an economic monopoly, at least in part, because a monopoly can only exist in the presence of a market and the ability of an actor to manipulate the market to a point where higher than competitive prices are able to be maintained, which is something that is rarely achievable by an owner of intellectual property.
There are also more specialized varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act in Canadian law, and in European Union law by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeders' rights, plant variety rights, industrial design rights, supplementary protection certificates for pharmaceutical products and database rights (in European law).
Copyright licenses grant permission to do something. A patent license is a declaration not to do some things, under certain conditions. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use. Many countries' legal systems afford compulsory licenses for particular activities, especially in the area of patent law.
Most exclusive rights are awarded by a government for a limited period of time. Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved. On the other hand, granting exclusive rights is by no means the only viable method to finance "intellectual property" production in a market system. "Intellectual property" law creates transaction costs that could in some circumstances outweigh these gains. Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented. Equally important, granting monopoly rights on production introduces a deadweight loss into the economy, and encourages rent seeking behavior.
What the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object's value, that that value is created by the originator of the idea and may not be used without his consent. Ayn Rand, founder of Objectivism, supported copyrights and patents, noting in Capitalism: The Unknown Ideal:
“ Patents and copyrights are the legal implementation of the base of all property rights: a man's right to the product of his mind. Every type of productive work involves a combination of mental and of physical effort: of thought and of physical action to translate that thought into a material form. The proportion of these two elements varies in different types of work. At the lowest end of the scale, the mental effort required to perform unskilled manual labor is minimal. At the other end, what the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind's contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property. ... Thus the law establishes the property right of a mind to that which it has brought in existence. ”
Although she argued that the term should be limited:
“ If it were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism. It would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them. Consider what would happen if, in producing an automobile, we had to pay royalties to the descendants of all the inventors involved, starting with the inventor of the wheel and on up. Apart from the impossibility of keeping such records, consider the accidental status of such descendants and the unreality of their unearned claims. ”
Expansion in nature and scope of intellectual property laws
In recent times there has been a general expansion in intellectual property laws. This can be seen in the extension of laws to new types of subject matter such as databases, in the regulation of new categories of activity in respect of subject matter already protected, in the increase of terms of protection, in the removal of restrictions and limitations on exclusive rights, and in an expansion of the definition of "author" to include corporations as the legitimate creators and owners of works. The concept of work for hire has also had the effect of treating a corporation or business owner as the legal author of works created by employees.
The American film industry helped to change the social construct of intellectual property by giving rise to a shrewd and well-funded trade organization, the Motion Picture Association of America. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA consistently advocated strong protection of intellectual-property rights. In framing its presentations, the association has capitalized on lawmakers' receptivity to labor-desert theory - that is that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property. This strategy has been highly effective; with remarkable frequency, the positions the association has supported have prevailed. These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority.
The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe, such that it is unclear when subsisting copyright protection will eventually expire.
The nature and scope of what constitutes "intellectual property" has also expanded. In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights. Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark. Under this definition, trademarks such as Microsoft's slogan "Where do you want to go today?" are generally considered registrable. Furthermore, as the essential function of a trademark is to exclusively identify the commercial origin of products or services, any sign which fulfills this purpose may be registrable as a trademark. However, as this concept converges with the increasing use of non-conventional trademarks in the marketplace, harmonisation may not amount to a fundamental expansion of the trademark concept.
In the context of patents, the grant of patents in some jurisdictions over certain life forms, software algorithms, and business models has led to ongoing controversy over the appropriate scope of patentable subject matter.
Some consider that the expansion of intellectual property laws upsets the balance between encouraging and facilitating creativity and innovation, and the dissemination of new ideas and creations into the public domain for the common good. They consider that as most new ideas are simply derived from other ideas, intellectual property laws tend to reduce the overall level of creative and scientific advancement in society. They argue that innovation and competition is in effect stifled by expanding IP laws, as litigious IP rights holders aggressively or frivolously seek to protect their portfolios. Peter Drahos notes that "Property rights confer authority over resources. When authority is granted to the few over resources on which many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedoms with in a society."
Opposition to expansion of intellectual property laws is strongly supported by the general economic arguments against monopolies. Others, e.g. Federal Judge and prolific legal scholar Richard Posner and Economist William Landes in the co-authored, The Economic Structure of Intellectual Property Law (Harvard Univ. Press 2003), argue that artists can get still ideas from copyrighted works as long as they don't plagiarise - that copyright only protects the expression of ideas and not the ideas themselves.
The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works. This can have the effect of limiting fair use provisions of copyright law and even make the exhaustion of exclusive distribution rights after the first sale of a product moot. This would allow, in essence, the creation of a book which would disintegrate after one reading. As individuals have proven adept at circumventing such measures in the past, many copyright holders have also successfully lobbied for laws such as the Digital Millennium Copyright Act, which uses criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC).
At the same time, the growth of the Internet, and particularly distributed search engines like Kazaa and Gnutella, represents a challenge for exclusive rights policy. The Recording Industry Association of America, in particular, has been on the front lines of the fight against what it terms "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster, and some people have been prosecuted for sharing files in violation of copyright. However, the increasingly decentralized nature of such networks makes legal action against distributed search engines more problematic.
Exclusive rights such as copyrights and patents secure their holder an exclusive right to sell, or license rights. As such, the holder is the only seller in the market for that particular item, and the holder is often described as having a monopoly for this reason.
However, it may be the case that there are other items of "intellectual property" that are close substitutes. For example, the holder of publishing rights for a book may be competing with various other authors to get a book published. This is one reason to prefer the term exclusive rights over monopoly rights. Of course, there may not be close substitutes in particular cases (for instance, a patent on the only known drug to treat a particular illness), making the term monopoly rights more appropriate.
The case for "intellectual property" in economic theory notes certain substantial differences from the case for tangible property. Consumption of tangible property is rivalrous. For example, once one person eats an apple, no one else can eat it; if one person uses a plot of land on which to build a home, that plot is unavailable for use by others. Without the right to exclude others from tangible resources, a tragedy of the commons can result.
The subjects of intellectual property do not share this feature of rivalness. For example, an indefinite number of copies can be made of a book without interfering with the use of the book by owners of other copies. When combined with a lack of exclusive intellectual property rights, this nonrivalrousness and nonexcludability combine to make them public goods and susceptible to the free rider problem. A rationale for "intellectual property" therefore rests on incentive effects to overcome the "free rider problem". This case asserts that without a subsidy that is afforded by exclusive rights, there is no direct financial incentive to create new inventions or works of authorship.
A more recent notion, proposing to expand the scope of exclusive rights to include databases, has been introduced by the EU in 1996. This is the idea of protecting the information contained in a database against re-utilisation and extraction of substantial parts. This would be an additional right predicated on a substantial investment, that would exist alongside the copyright in the database structure. This notion was opposed by the United States Supreme Court in 1991 in the Feist Publications, Inc., v. Rural Telephone Service Co. finding, which said that exclusive rights cannot cover the factual elements of any copyrighted work, that copyright does not derive from the effort expended in the production of the work, and that in the case of a collection of information, only the originality that may be found in the selection and arrangement of the information is governed by copyright. This case holds that the purpose of exclusive rights policy is to provide information to the public, and this consideration takes priority over concerns such as investment. A study[specify] has found that the introduction of exclusive rights to databases in the EU did not do any good to the economy.
The direct incentive beneficiaries of exclusive rights have an interest in expanding their rights and benefits: this is known in economic terms as rent-seeking, and is generally considered a bad thing by economists. Many beneficiaries pool their resources to form organizations that attempt this. Such examples include the Business Software Alliance (BSA), which purports to represent the interests of the commercial software industry or the Recording Industry Association of America (RIAA), which represents the interests of the commercial music publishing industry. As policy expands in accordance with the notion of "intellectual property", in the interests of those who benefit directly from its economic incentives, "intellectual property" tends to reduce the rights of its primary beneficiaries, the general public.
Under the notion of "intellectual property" the public is increasingly prevented by law from benefiting from the use of published information without complying with the conditions set by the rightsholder. The cost for this to the public is not easy to quantify. The cost is distributed widely and unequally based on the need for the product. Ironically the direct incentive beneficiary organizations are a good source for such data. The BSA reports a study that claims "while over $100 billion in software was installed on computers worldwide in 2006, only $65 billion was legally purchased". The BSA says "software pirates" avoided a cost of over $35 billion while the rest that obey the policy and do not purchase or make use of the work bear a real and substantial opportunity cost that is yet uncounted.
It is important to note that there are many other functioning, alternative economic models to the IP model in use, including the service model, the broadcast model, the advertising model, and the tariff model. As pointed out by Ram Samudrala, none of the alternative models abridge the freedom of copying, use, distribution, and modification of published information, but yet compensate and attribute authors. Ram Samudrala also emphasizes that the economic situation when copying intellectual property is unrestricted is analogous to a situation where exists a product X whose cost is $x, and a product another Y (very similar or identical to X) whose cost is $y, where $y << $x ($y is much less than $x). These situations occur frequently in the marketplace, and people marketing X routinely triumph (economically) over people marketing Y.
The term "intellectual property"
The term intellectual property has been criticized on the grounds that the rights conferred by exclusive rights laws are in some ways more limited than the legal rights associated with property interests in physical goods — chattels or land — real property. The inclusion of the word property in the term can be seen as favoring the position of proponents of the expansion of exclusive rights in intellectual products, by helping them draw on concepts associated with those older forms of property in support of their argument for removing limitations on rights when those limitations would be generally seen as inappropriate if applied to physical goods. For example, most nations grant copyrights for only limited terms; all limit the terms of patents. Additionally, the term is sometimes misunderstood to imply ownership of the copies themselves, or even the information contained in those copies. By contrast, physical property laws rarely restrict the sale or modification of physical copies of a work (something that many copyright laws do restrict).
A common argument against the term intellectual property is that information is fundamentally different from physical property in that there is no natural scarcity of a particular idea or information: once it exists at all, it can be re-used and duplicated indefinitely without such re-use diminishing the original. Stephan Kinsella, in his Journal of Libertarian Studies article "Against Intellectual Property", details his objection to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas. Other libertarians, such as Shaun Connell of the Rebirth of Freedom Foundation, argue that intellectual property doesn't exist on any level, and that no person has a "right" to all of the rewards of a concept, whether the person created it or not. Thus there is no direct analogue to "theft"; the closest analogue is to copy or use the information without permission, which does not affect the original possession (see the tragedy of the commons).
Another, more specific objection to the term, held by Richard Stallman, is that the term is confusing. Stallman argues that the term implies a non-existent similarity between copyrights, patents, trademarks, and other forms of exclusive rights, which makes clear thinking and discussion about various forms difficult. For example, those that pertain to intellectual content (copyrights and patents) have limited terms, hence differ from conventional property, whereas trademarks, which have unlimited terms, are merely signs and lack intellectual content. Furthermore, most legal systems, including that of the United States, hold that exclusive rights are a government grant, rather than a fundamental right held by citizens.
Though it is convenient for direct incentive beneficiaries to regard exclusive rights as akin to "property", items covered by exclusive rights are, by definition, not physical objects "ownable" in the traditional sense.
Law treats these rights differently than those involving physical property. To give three examples from US law, copyright infringement is not punishable by laws against theft or trespass, but rather by an entirely different set of laws with different penalties. Patent infringement is not a criminal offense although it may subject the infringer to civil liability. Willfully possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not. Furthermore, in the United States physical property laws are generally part of state law, while copyright law is primarily federal.
Likewise in other areas the term "property" is applied to legal rights and remedies of analogous kinds. For example, in some jurisdictions a lease of land (e.g. a flat or apartment) is regarded as intangible property in the same way that copyright is. In these cases too the law accepts that the property cannot be stolen — if someone moves into a flat and prevents the original residents from living there they are not regarded as 'thieves of the lease' but as 'squatters' and the law provides different remedies. Identity theft is another example of the adaptation of physical property laws to intangible items, though that term itself is seen as problematic by some. These examples, however, address the use of the term "property" in a technical legal context, not the meaning of the term as understood in public discourse.
In civil law jurisdictions, intellectual property has often been referred to as intellectual rights, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980s, as use of the term intellectual property has increased.
Alternative terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman — see below. The backronyms intellectual protectionism and intellectual poverty, whose initials are also IP, have found supporters as well, especially among those who have used the backronym digital restrictions management.
The argument that an intellectual property right should (in the interests of better balancing of relevant private and public interests) be termed an intellectual monopoly privilege (IMP) has been advanced by several academics including Birgitte Andersen and Thomas Alured Faunce.
One issue concerning such proposals is that if intellectual property exists there must be a parallel concept of intellectual capital — capital being the property that permits more property to be created. This, and the related term instructional capital that applies to the proper subset of patents and non-fiction copyright, are controversial notions that economists have no clear agreement on, so one refers to the "intellectual capital debate" rather than thinking of it as an actual capital asset. See more in the "Economic view" section below.
The fact that the three most common forms of intellectual property law concern different subject matter with different histories and purposes — copyright concerns (original) “works of authorship” such as literature and art, patent concerns new and useful inventions, and trademarks concerns signs which uniquely identify the commercial origin of products or services — is seen by some as countering what they consider to be the dogma of the United Nations' World Intellectual Property Organisation on intellectual property as the "creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce". These critics see this assertion as propaganda for a "property view", and suggest alternative terms such as individual capital, instructional capital and social capital over the term "intellectual capital", which has an ambiguous status, even among believers in neoclassical economics. Indeed, recent historical and econometric research has begun to "challenge the positive description of previous models and the normative conclusion that monopoly through copyright and patent is socially beneficial".
- Libertarianism and intellectual property
- Societal views on patents
- History of copyright law
- History of patent law
- ^ Doctorow, Cory (2008-02-21). ""Intellectual property" is a silly euphemism". The Guardian. http://www.guardian.co.uk/technology/2008/feb/21/intellectual.property. Retrieved 2008-02-23.
- ^ dotCommunist Manifesto
- ^ Richard Stallman (2008-10-31). "Did You Say "Intellectual Property"? It's a Seductive Mirage". Free Software Foundation. http://www.gnu.org/philosophy/not-ipr.xhtml. Retrieved 2006-10-22.
- ^ The Geneva Declaration on the Future of the World Intellectual Property Organization
- ^ http://hm-treasury.gov.uk/media/583/91/pbr06_gowers_report_755.pdf
- ^ Eugene R. Quinn, Jr., Debunking the Intellectual Property Monopoly Myth.
- ^ http://www.cepr.net/publications/intellectual_property_2004_09.htm
- ^ Dennis Wharton, "MPAA's Rebel With Cause Fights for Copyright Coin," Variety (August 3, 1992), Vol. 348, No. 2, p. 18.
- ^ William W. Fisher III, The Growth of Intellectual Property:A History of the Ownership of Ideas in the United States Eigentumskulturen im Vergleich (Vandenhoeck & Ruprecht, 1999)
- ^ Drahos with Brathwaite, Information Feudalism, New Press 2002, p12
- ^ BSA
- ^ Ram Samudrala on the Ethics of "Intellectual Property"
- ^ http://www.stephankinsella.com/publications.php#IP
- ^ http://mises.org/books/against.pdf
- ^ http://www.gnu.org/philosophy/words-to-avoid.html#IntellectualProperty
- ^ 
- ^ Birgitte Andersen. "'Intellectual Property Right' Or 'Intellectual Monopoly Privilege: Which One Should Patent Analysts Focus On?" CONFERÊNCIA INTERNACIONAL SOBRE SISTEMAS DE INOVAÇÃO E ESTRATÉGIAS DE DESENVOLVIMENTO PARA O TERCEIRO MILÊNIO. Nov 2003
- ^ Martin G, Sorenson C and Faunce TA. Balancing intellectual monopoly privileges and the need for essential medicines Globalization and Health 2007, 3:4doi:10.1186/1744-8603-3-4. http://www.globalizationandhealth.com/content/3/1/4 "Balancing the need to protect the intellectual property rights (IPRs) ("which the third author considers are more accurately described as intellectual monopoly privileges (IMPs)) of pharmaceutical companies, with the need to ensure access to essential medicines in developing countries is one of the most pressing challenges facing international policy makers today.")
- ^ http://www.wipo.org/about-ip/en/
- ^ http://minneapolisfed.org/research/sr/sr303.html
- Did You Say "Intellectual Property"? It's a Seductive Mirage (gnu.org)
- A primer on the ethics of "intellectual property" (ram.org)
- Against Intellectual Monopoly (Michele Boldrin and David K. Levine)
- Against Intellectual Property (Stephen Kinsella, mises.org)
Intellectual property activism Issues and debates Concepts Movements Organizations Documentaries
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