Tuesday, 13 September 2016 11:16

Linking Indication to Development through GI

Written by 

A Case of Banaras Brocades & Saree

Abstract:

The Banaras Brocades & Saree is famous for its intricate designs & beautiful weaves. This unique hand-woven textile has been experiencing the problem of infringement in present globalised market scenario. The counterfeit textiles produced by power looms and mills are marketed as original for harvesting  premium price associated with it leading a loss to consumers and original weavers. The TRIPs agreement under the WTO and subsequent GI Act of India has helped weavers to protect this famous product in 2010. The article has tried to analyse the benefits, the product is expected to receive through containment of infringement and adopting post GI initiatives for these SMEs. It may also help in countries resolve to strengthen “Make in India” by linking these product to world market.

 

1.1 Introduction

         Banaras, the heritage city and religious capital of India is equally famous for one of the beautiful handwoven textiles of the world called Banaras Brocades & Saree. This unique textile is known for its intricate designs and beautiful motifs from time immemorial. The motifs bring liveliness in the product and the pattern & designs talks about socio-cultural ethos and religious affinity to the world in form of weaves. The weavers put forth their imagination in form of weaves in silk brocades, saris, ladies dress materials & made ups, which has been attracting the attention of both domestic and international consumers. The product also bears generational legacy as the technique of production passed on from generation to generation in the artisans’ family, which help in preserving this craft for thousands years. The centre is not only providing livelihood to thousands of artisans associated in the process of production but also supporting equal number of support service providers like traders, raw material suppliers, dyers, designers, loom makers, etc helping in  eastern part of  Uttar Pradesh.

 

2.1 Historical evolution

It is believed that Banaras hand-woven textile traced back to Vedic era, as India flourished as a major textile-producing centre during Rig-Vedic period. Even the Hindu deities  gold-coated clothes of different times appears to be prepared by zari and silk yarns is interpreted by historians as the earliest equivalent of the present day zari work or brocades of Banaras. The Jataka tales and other early Pali texts have  mentioned about weavers (tantuvidyas) and their techniques of weaving of textiles. In most of the historical writings, Banaras has prominently found a place as an outstanding textile manufacturing centre.The pali literature has also mentioned  about the city as a reputed centre of textile manufacture, famous for its Kasikuttama and Kasiya. The Majjhimanikaya known as a textile fabric with fine texture and the Kasika Suchivastra was probably some kind of embroidery prepared by the then artisans (Pali text) in this oldest city.

 

 

The patronage extended by emperor Akbar during Mugal era, made outstanding contribution to the versatility  this craft and  tried to integrate   persian designs & patterns to their weave. It gave rise to a new form of brocades bringing close integration of  hindu and Islamic cultural ethos in  their weaves. The depiction of cultural ethos of two major religions in the artistic work may be one of the important contributions of the weavers in form of religious tolerance and complementarily of  two art forms during that period. The presence of Persian masters like Ghias Naqshaband and others in the royal atelier of emperor Akbar may be one of the important factors for the influx of Persian motifs in this product. It is significant to note that in the sixteenth century, the old designs abruptly came to an end and contemporary paintings with personalized motifs were introduced keeping the preference of ruling classes in mind. During this period, more emphasis was given to floral designs than animals. At present, the influence of Buddhist culture in the weave is also equally visible. During post Mogul period, the industry also flourished uninterruptedly in lieu of popular preference of domestic consumers.  The first census of India has elaborately mentioned that “the  Zari and brocade weavers seem to have considerable in numbers as the number of their houses was about 580 at that time (1st Indian census).

 

At present, the production area has increased from Varanasi to adjacent districts like Azamgarh, Mirzapur, Bhadohi (Sant Ravidas Nagar), Chandoli. Being one of the oldest hand-woven textile centres of the country, it provides livelihood to more than 1.70 lakh weavers, who put forth their imagination in form of weaves  by employing about 86 thousand looms. It is pertinent to mention that majority of the weavers are covered under co-operative fold even if some weavers are pursuing activities on individual capacity. There are about 635 weaver co-operative societies in the cluster, of which 473 are active.  Out of total workforce engaged in the production process, male constitutes about 84% (1,44,000) and female about 16% (27,430) of  artisan workforce. Further, equal numbers of people are also associated with the supply and marketing chain activities. Hence, it plays a major role in creating livelihood opportunities in the eastern part of Uttar Pradesh and in socio-economic upliftment of producers. 

 

 

2.2 Production and Market Share

 

Banarasi saree is a household name in the country particularly in the north & east India and closely associated with marriage and other socio-cultural activities. Every Indian parents dreams to offer a true Banarasi Saree  during the marriage of their daughter. The sarees make up  of silk warp and  weft, on plain/satin ground base brocaded with extra weft patterns in different layouts introducing Buties, Bells, Creepers, Buttas in ground, border and anchal  are famous  for its glamorous look & quality. The human skill associated with  production process giving  rise to  intricacy and  wonderful pattern is one of unique characteristics of the product. A weaver takes 8 to 15   days to weave a saree, which is mostly concentrated in household based SMEs.  Hence, the unit size is very small and unorganised. The silk brocades produced in the centre are also equally famous. With the change in preference patterns, the weavers have also adopted product diversification by introducing products like home furnishing, silk dhotis, stole, scarf, muffler, mats, dress material, wall hanging, made ups like curtain, cushion cover, table cover, napkins, runners, etc. to cater   overseas and domestic markets. The turnover of the centre is about Rs. 7200 crores. The loom use pattern of the cluster indicates that more than 67 % of the looms are used for the production of sarees and another 28 % for brocade weaving leaving little room (5%) for the diversified products. Even if, the share of diversified products is less, still it is a healthy trend and may help in  successfully mitigating the challenges of globalisation to hand-woven textiles.

 

 

3.1   Key Constraints & Infringed Banaras Brocades & Saree 

The globalisation under the framework of WTO has brought about plethora of changes in the trend & structure of international trade. With the phasing out of quota in textiles trade   and substantial reduction of tariffs under the Doha Development (DDA) Round[i]  of WTO[ii] negotiation, the export of textiles has increased substantially. The major producing countries like India have increased their export of textiles to the world. India being a major producer of hand-woven textiles has also attracted the attention of the international buyers as well as new challenges arising out of globalisation.  The traditional hand woven textiles like Banaras Brocades and Saree have been attracting a premium price due to unique quality and intricate design. The premium price has thrown upon an important challenge to this age old traditional products in terms of counterfeit goods. During 90s, the higher premium price attracted the manufacturers of other region to copy the Banaras design & patterns and sell it in the name of Banaras Brocades & Saree. As these infringed products are weaved through power looms & mills, the price offered is far less than  original one giving rise to significant price advantage to counterfeits. Further, this dishonest business practice used the name Banaras  for marketing the counterfeits causing  severe injury to the original product. As a result, it threatened the livelihood of original weavers in one hand and deceive consumers on the other hand.  The original product  lost its niche market to  infringed ones leading to reduced  brand value and  less premium price  leading to low income for  the weavers. It not only threatened the very existence of this unique product but also undermined the export potential. It is estimated that the market size of Banaras Brocades & Saree is about Rs.10113 crores, out of which about Rs.4500 crores produced in power looms in and around Varanasi. On the other hand, handlooms contribute about Rs.2700 crores during 2012-13.

 

Tabl-1:Status of  Original & Infringed products in 2012-13

Product

 Products of Banaras

Total

Infringed Products

% of original

Handlooms

Power loom

Saree

1819.86

3033.06

4852.92

1980.15

40.80

Brocades

779.94

1299.88

2079.82

785.35

37.76

Furnishing

39.86

66.43

106.29

32.52

30.60

Diversified Products

55.09

91.82

146.91

25.25

17.19

Others

5.28

91.82

97.1

15.34

15.80

Total

2700.03

4500

7200.03

2838.61

39.42

Source: Author’s own calculations

 

 

 

 

 

 

 

The remaining Rs.2838 crores constitutes counterfeits produced in other part of India and in other countries and marketed in the name of  Banaras Brocades & Saree  Hence, about 1/3rd of the market is captured by the products, which are produced in other region and marketed in the name of original one. This dishonest business practices practised with a view to take away the premium price associated with this world famous textiles.

 

 

2.1.1 Source of Infringed Banaras Brocade & Saree

The trend and composition of the product indicates that the counterfeit goods are originating from both domestic as well as external markets. Hence, depending upon the origin and production of counterfeit Banaras Brocades & Sarees, the source  of infringement could be  (i) Infringed products manufactured in other part of India and sold in domestic market  (ii) Infringed products manufactured within the country and exported to  international market (iii) Infringed products manufactured in other countries and imported to India  and  (iv) Infringed products manufactured and exported/sold in market other than India.

 

The  source and marketing of counterfeit Banaras Brocades & Saree indicates that   infringed products are mostly originating  from other power loom production centres of the country, which are specialised in manufacturing art silks. Of late imported products from countries like China, Bangladesh, etc have also joined the race. It is pertinent to mention that the Banaras city is also flooded with low cost fabrics manufactured in other countries and sold in the name of original one. The same may be the case in export market.  Hence, Banaras is experiencing infringement from all   strata’s mentioned above leading to decline in the original product.

 

2.1.2 Effects of presence of Infringed products

 The hand weaving and design drawing pattern is very complex and time consuming. The cost of production is high, where as counterfeit fabrics are machine made and cost effective. Since the design and pattern of machine made low priced infringed products resembles with high priced original one, it became difficult for latter to compete in the market. Ultimately the original products are losing market and premium price to counterfeits. As a result, the wage rate has declined to about half of what they were earlier. The existing wage rate for skilled works like weaving and designs varies from Rs.150 to Rs. 200 per day after rendering more than 12 hours service per day, whereas for support services like sizing, dyeing, finishing and packing, wage rate varies from Rs.80 to Rs.160 in 2012. Due to low wage, the weavers are migrating to other occupations like Rickshaw pulling, etc. On the other hand, the moneylenders also charge exorbitant rate of interest for lending money to the poor weavers.

 

 

3.1 GI as a solution to infringement  

 The inclusion of Geographical Indication (GI) as a newest addition to the TRIPs[iii] Agreement under WTO has created a new hope for the problem of infringement to the traditional knowledge like banaras brocades & saree. GI as a newest addition to the families of IPR “identifies a good as originating in the territory of a member or a region or locality in the territory, where a give quality, reputation or other characteristics of the goods is essentially attributable to its geographical origin (article 22.1 of TRIPs)”.  It means, some geographical regions acquire reputation for origin of product with specific quality and uniqueness that distinguishes the product from other similar products.. When GI acquires such reputation, there may be attempts by others to utilise it for their own advantage. Such action by others harms both original producers and consumers of the products. The original producer looses a part of the market and the consumer gets counterfeit goods without original quality and uniqueness. Hence, it is harmful to both original producers and consumers.

 

The agreement stipulated absolute protection (art-23) for wine & spirit and general level protection (art-22) for other products. The additional protection provided to wines and spirits imposes an obligation on member countries to legislate for the protection of wines and spirits even if there is no risk of misleading or unfair competition. The discriminatory approach[iv] accepted in the TRIPs council may be the resultant of continuous effort by EU countries to protect unique blended wines and spirits originating from their countries. However, members have agreed for establishment of a multilateral system of notification and legislation of GIs (article 23.4) for further negotiation.. Further, the agreement stipulates that unless a GI is protected in the country of its origin, there is no obligation by the members to extend reciprocal protection (Art- 22) leading to implementation of national laws by member countries for protection of their products.

 

 

3.2 Geographical Indications (GI) Act’1999 of India

 

 Prior to TRIPs agreement, the products with uniqueness and originating from a particular geographical region are protected through some existing laws India i.e. (i) under consumer protection Act, (ii) through passing off actions in courts, and, (iii) through certification marks. Such legal provisions are not sufficient to protect GI designated products of India in the changing world scenario as innumerable foreign companies and traders are free ridings on goodwill and reputation associated with such renowned geographical names of Indian product. For example, the tea producers of Kenya can use world famous appellation of "Darjeeling" on the package of their tea with an aim of free riding on the renown associated with it, and encroach upon the existing market of Darjeeling tea. Ultimately, the producer of the Darjeeling tea will be the looser.

 

           

In compilation of the TRIPs agreement, India enacted the Geographical Indications (GI)[v] Act and rule. The act is administered by the Controller General of Patents, Designs and Trademarks, who is the Registrar of Geographical Indications. It is interesting to note that though Article 23 of TRIPs provides a higher level of protection to GIs relating to wines and spirits only, the corresponding provisions in the Indian Act does not restrict themselves to wines and spirits alone rather it is left to discretion of the central government to decide goods or classes of goods need to be granted such higher level of protection. This discretion has deliberately been maintained by Indian lawmakers with an aim of ensuring the 'absolute' protection of Article 23 for the GIs associated with products of India's export interest. As of August, 2015 more than 300 products[vi] have been successfully registered under the said Act.

 

 

3.3 Possible impact on GI designated Banaras Brocades & Saree  

In the weaving industry of Banaras, imitation is one of the major matters of concern. The product with a unique design, pattern and texture commands a high price but once the design come out from manufacturing centre, it is immediately copied by large manufacturers and power looms in the country. Further, the opening up of economy under the framework of globalisation has added new dimensions to this process of infringement as  manufacturers of other countries  are replicating and selling their products in the name of Banaras Brocades & Saree both in domestic and international market. As soon as the design is copied, the product gets devalued. The original producers have to bear this loss as  change of product invariably involves substantial investment and time. The effect is quite alarming. The exploitation in the sector has reached such serious proportions that the  skilled artisans are  shifting  their age old profession of  weaving  to  other occupation like making incense sticks, selling green chanas  (seasonal work), and the women have begun to do domestic labour in the homes of middle class families in their neighbourhood. In addition, weavers are leaving Varanasi and migrating to cities like Surat to work in powerloom industry, which produces art silk fabrics and saree.

 

In such a scenario, the protection under GI was sought by the producers of Banaras Brocades & Saree. The Textiles Committee[vii] in collaboration with state government facilitated GI registration of the product in 2010. The Intellectual Property Rights (IPR) protection of Banaras Brocades & Saree will provide much needed safeguards against counterfeit products originating from domestic as well as international market in the following ways:

 

 

· The mandate of the TRIPs agreement has included GI as one of the IPR for protection of unique hand-woven products of member countries (Article-22). As per the mandate, the member countries can seek protection for GI designated products in other member countries once it is registered in the domestic country. One of the interesting outcomes of the agreement is that until & unless the product is protected in the domestic country, the stakeholders of original product can’t claim/ take action against infringement in other countries. Hence, it is very much essential to register the product in own country to safeguard the product as per the mandate. Since the counterfeits are produced in other countries and exported to world market in the name of Banaras Saree or Brocades, the original producers can seek protection in other WTO member countries and initiate infringement action against this dishonest business practices. It will help in safeguarding the original Banaras weave in the international market and enhance its market share.

 

 

· Similarly, one of the major threats experienced by the weavers has been from domestic market. Most of the counterfeit sarees and brocades are originating from within the country. The power looms and mills beyond the designated region are weaving art silk fabrics & sarees and marketing in the name of Banaras. This trend has posed a serious threat to the existence of this unique product. The GI act stipulates that “subject to other provision of the act, the registration of a Geographical Indication shall if valid, give (a) to the register proprietor of a GI and the authorised user thereof the right to obtain relief in respect of infringement of the GI in the manner provided in the act (b) the authorised user that of the exclusive right to the use of GI in relation to the goods in respect of which the GI is registered (Ch-IV, Section 21(I)”. Further, the act prescribed punishment for falsification or infringement of designated GI in Section-39 of Chapter-VIII. The provision explains that any person, who falsify the GI shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakhs rupees (Sec-39)”. The stipulations  clearly spell out, how stringent the act is on infringers or on falsification of GI: Since majority of counterfeit Banaras Brocades & Sarees are produced in domestic market, the registration shall substantially help in containment of infringement. If 1/3rd of Counterfeit Banaras Brocades & Sarees are withdrawn from the market, it will help in increase in price of the original gods leading to increased income for thousands of weavers. It will also ensure enhanced brand value and market share of this IPR protected product.

 

 

·   One of the important controversial aspects of TRIPs agreement on GI is absolute protection to GI designated wines and spirits under Article-23 of the TRIPs agreement. Now the question arises that does the absolute protection for Banaras Brocades and Saree is necessary? To answer the question let us analyse the various components of the article-23. Article 23.1 stipulates that the members to provide legal means for interested parties to prevent  use of a geographical indication for products “…..not originates in the place indicated by  geographical indication in question, even where the true origin of the goods is indicated …” .In absence of such protection for the product, it would be possible for  producers of the other country say China to use the name Banaras Saree & Brocade for products originated from China, if it is not protected in the same country. Further, article 23.1 prohibits use of geographical indication if “… the geographical indication is used in translation…”.Lack of this protection  may pose a threat as the popular brand name may be used by the producers of other products  say food items. Hosiery products in case of lack of country specific registration and protection of the product. Article 23.1 prohibits the use of geographical indication “accompanied by expressions such as kind, type, style, imitation or the like”. As this is not applicable for  saree and brocades, it would be possible for example for the producers of China to put the words like  imitation of Banaras Saree & Brocades on its silk products but they can’t use the logo if protected in the respective country say China or stopped at the border. Similarly, article 23.2[viii] stipulates that the registration of the trademark for wines which contains or consists of a geographical indication identifying wines or spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex-officio if a members legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin”. These aspects may not be applicable for products like Banaras Saree and Brocades.

 

 

One important element of the TRIPs agreement is that the member countries will have to decide on mode of protection of geographical indication. As of now different countries are using different mode of protection for the purpose. These are (a) a Sui generic law (b) Certification or collects marks under trademark laws (c) under unfair competition or consumer protection laws.  In the countries which protect the GI designated products under Sui generic law/certification or collective marks under trademark laws, a logo could be more appropriate to protect the GI designated products. In this case the original producers can stop counterfeit goods only by proving that the infringed producers are not authorised to use logo, as they do not produce it in the region, which the GI logo stipulates. On the other hand, it is difficult to protect the GI designated products through logo in the countries, which applies unfair competition law or consumer protection law. In these countries the infringement of the products can be stopped in the court of law with the proof that the consumers are misled because consumers identify logo of GI designated products for originality. In case of non-use of logo as a protection of registration, it may be difficult to prove that the consumers are deceived due to presence of counterfeit goods in the market. Fortunately, the producers of Banaras have registered logo for protection under GI Act.  In the above analyses, it appears that the article-23 helps producers to prove the deception of consumers by counterfeit good in an easier ways than under article-22 of the agreement. Hence absolute protection appears a better mode for protecting designated Banaras Brocades & Saree. However, the Indian GI Act does not stipulate any dichotomy approach for protection of GI among the products. Hence, the registered Banaras Brocades & Saree can seek absolute protection in Indian market and adequate protection in other countries by registering the product in the respective countries under the provision of their law and through registered logo.

 

 

 

4.1 Road Ahead

The registration of Banaras Brocades & Saree is no doubt a boost to protection & promotion of product and safeguarding from dishonest business practices. But only registration may not serve the purpose. The containment of infringement through legal means as stipulated under the Act should be prioritised. A withdrawal of about Rs. 2700 crores of counterfeit Banaras Brocades & Saree may help the original weavers to realise more than 20 % more premium price. The realisation of better premium price will ultimately help weavers to enhance their disposable income and initiate process of inclusion of younger generation to this occupation. At the same time, the integration of supply chain to the original weavers through brand promotion and market linkage in form of Post-GI initiatives[ix] could also be helpful in realising true potential of the product both in domestic as well as in world market.

 

4.0 Conclusion:

 

Banaras has acquired reputation for origin of this world renewed hand-woven textiles. It is the quality or reputation that distinguishes product from similar products across the globe. When GI acquires such reputation, there is always an attempt by dishonest business practices to take away the premium price associated with it leading to infringement. As a result, the original producer looses a part of the market share of his product and the consumer gets counterfeit goods without original quality and uniqueness. Hence, the registration of the product is a right step in right direction for protecting this unique product from infringement.

 

 

Further, the GI designated products bears the legacy of make in India[x]”  as it  has originated in the country and  creates employment opportunities  particularly in the rural India. The IPR protection and strengthening its supply chain through Post-GI initiatives will help in boosting the manufacturing activities in rural based SMEs and help in realising India as a major manufacturing & exporting hub in the world besides protecting IP interest of the country. It may also help in countries resolve to strengthen “Make in India” programme of present government.

 

Notes



T K Rout (This email address is being protected from spambots. You need JavaScript enabled to view it. ) working as Deputy Director (Market Research)  in Textiles Committee, Ministry of Textiles,  Government of India,Mumbai



[i] The Doha Round is the latest round of trade negotiations among the WTO member countries. Its aim is to achieve major reform of   international trading system through the introduction of lower trade barriers and revised trade rules. The Round was officially launched at the WTO’s Fourth Ministerial Conference in Doha, Qatar, in November 2001.The Round is also  known as the Doha Development Agenda as a fundamental objective is to improve the trading prospects of developing countries. The Doha Ministerial Declaration provided the mandate for the negotiations, including on agriculture, services and an intellectual property rights, which began earlier.

 

[ii] World Trade Organization (WTO) is an intergovernmental organization  officially commenced on 1 January 1995 under the Marrakech Agreement, signed by 123 nations on 15 April 1994 replacing the General Agreement on Tariffs and Trade (GATT).  It deals with the global rules of trade between nations. Its main function is to ensure that trade flows as smoothly, predictably and freely as possible.

 

 

[iii]Article 22 to 24 of Part II, Section I  the Trade Related intellectual Property Rights (TRIPs) agreement defined the nature and scope of protection of the geographical indications.The TRIPs agreement was signed in 1994 among the WTO members. India is also a founding member and signatory to the agreement.

 

 

[iv] Even though the member countries have accepted the TRIPs council mandate on absolute protection in letter and spirit, majority of the countries are also insisting for same level of protection for all products. the discussion over the extension of protection to products other than wines and spirits started in the year 2000, as a group of countries including Bangladesh, Bulgaria, Cuba, Cyprus, Pakistan, India and  others opposed discriminatory  nature additional protection and demanded similar protection for other products. However, their argument was negated citing the clause of Article 24.1, which stipulates negotiations for enhanced protection for wines and spirits only. Whereas the promoters of this thought are of the view that this article refers to the products other than wines and spirits.

 

[v]Geographical Indications (GI) Act (Registration and Protection) Act 1999, and implemented in the year 2003. Under this act, the Central Government has established a "Geographical Indications Registry" with all India jurisdictions at Chennai, where the right-holders can register their respective GIs.

 

[vi]The products registered mostly belong to handloom, handicraft, agriculture and natural goods. The first product registered in India under GI Act is Darjeeling tea in 2003 followed by pochampally Ikat, a unique handloom product of Andhra Pradesh.

 

[vii]Textiles Committee is a statutory body under the Ministry of Textiles working for the development of Textile & clothing sector of the country and promoting GI registration.

 

[viii]Article-23.3 deals with homonymous geographical indications and provides that “In the case of homonymous geographical indication for wines, protection shall be accorded to each indication”. Homonymous geographical indication may not be a problem for almost all GIs coming out of India. Article 23.3 talks that “….. The establishment of multilateral system of notification and registration of geographical indication for wines eligible for protection in those members participating in the system”. In the present circumstances a legally enforceable multilateral system could be the only benefit for extension of article -23 protections to other products like Banaras Saree & Brocades.   

 

[ix] The Textiles Committee has prepared a model for Post-GI initiatives for converting IPR protection into tangible benefits for the producers of GI designated products.

 

[x] Make In India is the  national program designed to transform India into a global manufacturing  and export hub. It contains a raft of proposals designed to urge companies both local and foreign to invest in India and make the country a manufacturing powerhouse.

 

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Heritage of India authors fabric by Sukla Das in the year 1992 published by Shakti Malik Abhinav.

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Geographical Indication Jurnal,Issue no-1-14, Published by Geographical Indication Registry, Govt. of India, Chennai.

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Banarasi Brocades, Edited by Ajit Mukherjee, Crafts Museum, New Delhi

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www.textilescommittee.gov.in

 

 

 

 

 

 

 

 

 

 

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