Sunday, January 30, 2011
Last Friday (January 28) I was a judge at the Central Region Chicago Public Schools Science Fair. This was the first time that I was a science fair judge. I went to the science fairs at my children’s elementary school, but not to the high school ones. Sometimes one hears about some outstanding science fair projects that were award winning, but I was sure most of the projects would be unexciting.
I have seen many CPS graduates as students, who needed help with high school level English and math skills when they enrolled at Wright College. Before Friday I wondered what high school students really know. My daughter’s science fair project was carefully prepared, researched and written up, but she did not win a place in a regional fair. One part of science fair projects is a literature review. The student must not only learn about the scientific method, but also read what others have written on the subject. As a librarian I am always careful about citations of materials and how these sources are used as a basis for the student’s project. While the citations only accounted for 2 out of 99 points, those who had a weak review of the literature had experiments that were not solid. I pointed out some problem areas in the research and frequently the students didn’t understand why I questioned their methodology or hypotheses. For example one project concerned what liquids would dissolve an allergy pill better. I asked why this was important or worthy of investigation. The student said that she has allergies and wanted to know the best liquid to drink with the pills. She could not adequately explain why it was important to dissolve a pill faster. She did not concern herself with how stomach acids would dissolve a pill or even if it was a good idea to dissolve faster. She did not mention time release pill or the fact the same medicine could be in pills, capsules, liquids, etc. Indeed this type of investigation was not well conceived and did not have any indication that the problem was understood. If the real question was, “What is the best way to take allergy medication?” this would be beyond the ability of a high school student to measure and test.
Another project concerned measuring the sugar content of carbonated soft drinks (Experimenter called it “soda pop”). The experimenter carefully weighed 10 ml of distilled water and then made standard solutions of 5%, 10% and 15% as made of chart of their weights as base to compare the soft drinks. The experimenter could not explain why 10 ml of distilled water weighed 9.9 grams  or 10 ml of diet soda weighed 8.9 grams. He should have measured the 10 ml of water several time to determine why there was a 0.1 gram error. The diet soda could have been less dense than water due to the dissolved carbon dioxide. These two measurements should have triggered additional investigation and a revision to the experiment. He should have also measured plain carbonated water and compared that weight to distilled water, diet soda and sugared soda. My high school aged daughter picked up this error immediately. I had not asked the experimenter why plain carbonated water was not measured. The bibliography to this project consisted of: Google, Wikipedia, and Glencoe Science. No exact source was mentioned. I gave no points for the review of literature or citations. I can’t believe a teacher signed off on this project. While the student did a lot of work, it was not done under the guidance of a skilled teacher-scientist.
I discussed my experience with a fellow librarian, who was planning to judge the science fair, but was unable to make it. She wanted to ask every single exhibitor what library resources were used in preparation for their project. I didn't think of asking everyone this question, but I wish I did. None of the projects I judged seem have used the library or its resources. Is that saying teachers aren't guiding the students to the library? I know that Chicago Public Schools have subscriptions to library data bases, but do teachers and students know how to use them?
The projects were judged on rubric with points awarded for each element of the rubric. They were not in direct competition with each other. Any project could obtain a perfect score or no score at all. For a librarian this event just confirmed what I knew about teachers not knowing how to search for reliable sources, incorporate research in the learning process, and how to cite sources. However, it was a worthwhile learning experience for me.
1.A milliliter of distilled water at room temperature should weigh exactly one gram. Since the experimenter used an electronic scale this error was not due to imprecise reading of a dial.
Friday, January 21, 2011
In the current issue of Entertainment Weekly (Jan. 28, 2011 #1139) on the last page titled “The Bullseye” [sic] is a picture of two pairs of people with similar hair styles the text asks “Are hairstyles protected by copyright laws?” This page is not inline and I can’t reproduce it here. This is another case study written as follow up to part 4 of my “What is Copyright?” series.
Does hairstyle pass the test of what can be protected by copyright?
Since hairstyle is not a government document it does not fall under that exemption. Even if the owners of the hair were government employees and their hair was cut and styled in connection with their job, I don’t think anyone would confuse hair with a government document.
Hairstyling is a creative act when based on a plan or idea. One pair of pictures, the styles looks as it were based on a plan and other it looks as if the people just rolled out of bed. For the later they can be no copyright because there is no creative act. For copyright protection a creative act must be followed with a fixed form. For example when one writes the words of thoughts, the writing is the fixed form. Since everyone’s head of hair is slightly different, I don’t think any hairstyle can have a fixed form. If someone claimed to work on the creation of a hairstyle, time spent is not a criterion for setting a fixed form.
If the hairstyle was created for a stage or film production, it may possibly be eligible for copyright protection based on the fact that the photograph of a character is a fixed form and can be protected. Also if the hairstyle is an important part of the character, if can be protected as part of the whole character.
Even if protection was claimed for the hairstyle, it would be hard to know exactly where the line is drawn for derivative, imitative, or parody styles which are allowed. Hair moves constantly and has no fixed form. One would have a hard time figuring out what is the fixed form. Would one hair in another place or a slightly different hair color qualify as a new work? There is no way to measure if the hair infringes on the first person’s claim.
Clowns can register a trademark for their face and hair and receive protection. See http://www.stuff4clowns.com/registry.html for more information.
To summarize – hairstyling is a creative act, but has no fixed form. Copyright protection can’t be claimed. This is only my opinion and I am not a lawyer.
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Wednesday, January 19, 2011
Do library users have an expectation of privacy?
"We can protect privacy, even in light of all the collection, dissemination, and use of our information. And it is something we must do if we want to protect our freedom and intellectual activity in the future." Daniel J. Solove
What about other areas of privacy? Is the library allowed to discuss what is revealed in a reference query? If a patron revels something during a reference interview is there an expectation of privacy?
The library is a public place even in a private school. In a public place conversations may be overheard by people nearby. Two people talking in the library have no expectation of privacy. Common courtesy dictates that conversations should be quiet enough to not disturb anyone, however, courtesy and privacy are not the same issue. There is no mention of privacy in the faculty handbook.
Using computers is also not private; anyone can see what is on the screen. Library users are not always careful to close the screen after reading sensitive e-mails or web sites displaying their private financial records. Printouts of a personal or sensitive nature are routinely left at public printers.
Copyright laws are an example of how we limit the use of information, but limits have nothing to do with privacy. Health information given to care providers is strictly regulated by law for privacy reasons.
For an effective reference interview I need only information relevant to the search. Today a lady, old enough to be the grandmother of most traditional post high school students, came to the desk. She told me her age, her grades on all her sociology quizzes in the first semester, her difficulties learning algebra, how much she paid for two books at a book store, and much more about her life that I didn't know. I felt that I was her therapist because she did need help. While I commend her on the desire to learn and earn a degree, as a librarian I had no ability to give her the help she needed. She needed help to navigate the rules and regulations for math placement tests and graduation requirements. I sent her to student support services because I the library can't advise on those topics. The session took more than 20 minutes. I shared a story of an uncle, who went to community college for 35 years and because he never took algebra, he didn't graduate. She thanked me for listening and went on her way.
There are no records of reference interviews, but does this mean someone couldn't ask me about this person? In my opinion if a patron does not request privacy or confidentiality, there is no expectation of privacy. While I can't think of any reason why anyone would care about the information this lady told me, I feel no requirement to keep it confidential. However, putting a person's name after a face-to-face contact, who is not a public figure name and has not given me permission, is a breach of privacy. If the remark has already appeared in print or another public media, there is no expectation of privacy. While we always have to act with professionalism, friendliness, and courtesy, when someone reveals more than we want to know while at the library, there is no expectation of privacy.
Balas, Janet L. "Should There Be an Expectation of Privacy in the library?" Computers in Libraries v. 25:6 June 2005.
Solove, Daniel J. "The future of privacy - With privacy under attack from all quarters, many wonder whether it's an outdated expectation" American Libraries vol. 39:8, September 2008.
1. ALA Q&A on the Confidentiality and Privacy of Library Records http://www.ala.org/ala/issuesadvocacy/advocacy/federallegislation/theusapatriotact/questionsonprivacy/index.cfm
The Patriot Act (Public Law 109-177) is set to expire on February 28, 2011, however, legislation (Public Law 109-177; 50 U.S.C. 1805 note, 50 U.S.C. 1861 note, and 50 U.S.C. 1862 note) has been introduced to extend it one more year.
Tuesday, January 11, 2011
Not all sources on copyright are well written. Since I don't want to embarrass an author who is a professor at a Midwestern state university, I won't give the source of this quote. "... courts have ruled that consumers are allowed to make copies of compact disks for use in their tape players..." It is not not physically possible fit a CD into a cassette tape player. The author may be referring to boom boxes that used to have both a tape cassette player and a CD player, but today boom boxes generally only play CDs. However, I would like to see the original court ruling on this question.
The copyright law in section 107 allows use of materials "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The limits of "fair use" are subjective. Generally if the copies don't effect the potential market for the whole work, there is no problem. Systematic copying, copies of whole works, and the selling of anthologies consisting of copies from other works need the proper permissions from the copyright owners. Acknowledging or citing the source of the copyrighted material does not substitute for obtaining permission.
Fair use is defined in a the 1961 report, Register's Report on the General Revision of the U.S. Copyright Law (1961) Section B Special Rights
The general scope of fair use can be indicated by the following examples of the kinds of uses that may be permitted under that concept:
- Quotation of excerpts in a review or criticism for purposes of illustration or comment.
- Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations.
- Use in a parody of some of the content of the work parodied.
- Summary of an address or article, with brief quotations, in a news report.
- Reproduction by a library of a portion of a work to replace part of a damaged copy.
Fair use is supposed to allow students, scholars and others to quote works. Scholarship would grind to a halt if every short quote required the author to seek permission from the copyright owner.
Plagiarism is the copying of another person's work and claiming it as your own. Plagiarism is not against the law. It is an ethical, academic, or professional indiscretion. One can not turn to the court system for remedy. It is up to a teacher, professional group, editor, etc. to make sure all quotes are correctly cited and the author is really the author. Plagiarism is often confused with copyright or contract violation. Ideas are not protected by law but may be protected by contract. If you discuss an idea for a movie with an associate and later without your permission he makes a movie similar to your pitch, you have no recourse under law unless you have a contract to protect your ideas.
An example of the protection of ideas is the 1990 breach of contract lawsuit case of Art Buchwald v. Paramount Studio. (For fuller details see Wikipedia "Buchwald_v._Paramount" and O'Donnell, Pierce; McDougal, Dennis. Fatal Subtraction: How Hollywood Really Does Business: the inside story of Buchwald V. Paramount. New York: Doubleday, 1992.) In 1982, Art Buchwald wrote a screen treatment that was pitched to Paramount. Paramount optioned the treatment in early 1983. Since the preparation of a suitable script was not successful, Paramount abandoned the project in March 1985.
In 1988 the movie Coming to America was released by Paramount. Eddie Murphy was given sole story credit. Buchwald was not paid or credited as co-writer. Buchwald sued Paramount for breach of his contract with Paramount which stated that he would be paid if his treatment were made into a film. California Superior Court decided in 1990 that Buchwald was correct and should be compensated. The parties settled and there was no appeal.
While the case has implications in many areas of intellectual property and how Hollywood studios do business, I'm only concerned with the copyright issues. The case would not exist without a contract. A contract can modify the rights of the author beyond what the law states. Copyright law does not cover ideas, but contracts may. Paramount and Eddie Murphy did not violate copyright law and perhaps they didn't plagiarize. A copyright violation suit would have been very hard for Buchwald to win. The case got considerable media coverage at the time and was mentioned in the New York Times obituary for Buchwald (Art Buchwald, Whose Humor Poked the Powerful, Dies at 81 / By Richard Severo. January 19, 2007 http://www.nytimes.com/2007/01/19/obituaries/19buchwald.html?_r=1 )
Copyright law allows a limited monopoly for exclusive rights to sell, publish, perform, translate, derive, record, etc. works that are fixed in a tangible form. Theoretically the public policy behind the law is to balance the interests of authors, publishers, and consumers/readers. Over time the copyright law seems to favor one group over the other. The first laws seem to favor the publishers as a system to protect a commercial enterprise. Since the publishers invested the money, they have a right to earn a fair return. In the 19th century the laws seem to favor the author. The readers and customers, who actually pay the bills, seem to have fewest rights.
The word "rights" is problematic because we connect it to the inalienable rights from the Declaration of Independence. or the Bill of Rights. We should use a term that indicates intellectual privileges granted to authors, creators and their partners. Copyright law should be a partnership between the creators and consumers. In exchange for a limited monopoly, the publishers and creators of books and non-print materials agree to spread the ideas, stories, analysis, data, facts, and graphics for the public's entertainment and education. The privileges granted by law are supposed to be an incentive to create, explore and share the results with the world.
1. While Art Buchwald won the suit, both Paramount and Buckwald lost money. Buchwald won a $150,000 settlement, but spent $200,000 in legal fees. Paramount's defense cost almost $3 million.
Tuesday, January 4, 2011
What can you protect under copyright law?
In the last blog entry I left you with the question -- You are wondering in the Judea Dessert and you find a scroll that turns out to be the work of a previously unknown prophet. What are the copyright issues?
This is the story of the Dead Sea Scrolls. But I am only discussing copyright issues here and what can be protected. 
The US Constitution gives Congress the obligation to create laws to protect intellectual property. “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,”  This, however, creates two competing social needs –1) The right of the public to use and learn from the knowledge of the past and present; and 2) The right of the authors and publishers to benefit from the fruits of their labor and capital investment. Public policy is at the heart of copyright legislation and common law.
Since the Constitution clearly mentions “authors” and “inventors” examination of what is an author is worthwhile.  An “author” of a work is the creator of the work. Authorship can be shared by individuals or corporate bodies. “Creation” implies that the work shows some creativity. For some works “authorship” is very obvious. If an individual writes a book and the publisher puts the name under a by line on the title page, the author is obvious and indisputable. Well, perhaps not? The Hardy Boys and Nancy Drew books were attributed to Franklin W. Dixon  and Carolyn Keene , respectively. These were series books written from character and plot outlines provided by the Stratemeyer Syndicate. The publishers even prevailed on Library of Congress not to reveal the names of the individual authors. The actual creators sold the stories for as little as $125 per book. The publishers retained the copyright. Creators are allowed to sell or assign their copyrights to other persons or corporate bodies. A person can choose to write a work under a pseudonym for any of several reasons. That does not detract from their part in the creation of the work.
Corporate bodies can also be authors. An organization, government agency, business, etc. can prepare a publication. The work is prepared by many individuals who may or may not be named. A name is very important for a person and for cataloging works that will be included library catalogs. The rules for library cataloging (AACR2) devote two chapters to help librarians assign proper headings for personal and corporate names.
Peter Jaszi claims that authorship is one of the fundamental concepts of copyright doctrine.  He says that the concept of “author” in the 18th century was associated with the Romantic movement in art and literature. The concept and value of the self was gaining importance. The American Revolution and Construction were part of the results of important of self determination and inalienable rights.
Before printing the idea of authorship is somewhat limited. Many of the Psalms are attributed to King David. Other books of the Bible are attributed to authors, but this does not mean they were the individual authors as we call authors today. Was Homer, Aristotle, or Plato the name or an individual who wrote books? Homer dates of existence are not certain and vary by as much as 300 years. The dates for works attributed to him also vary by hundreds of years. The Greeks considered his their teacher and attributed works to him. He was a collector of stories and traditions.
Aristotle was a poet, philosopher theoretician. Plato was his teacher. Their philosophy was known to the rabbis of the Talmud. Greek literature had no concept of “fiction” or work of imagination. They had philosophy, “wisdom” and “authoritative knowledge.”
Betzalel was the artisan commanded by God to build the tabernacle. His skill and genius was highly respected, but he only carried out orders. He is not a creator of an original work.
At one time photographs were not considered works of art and could not be protected with a copyright. The law was changed to recognize photographers as creators.
The word “science” today refers to fields such as chemistry, physics and biology that are different from the fields of literature, history, philosophy that are the “humanities.” In the time of the Constitution, “natural philosophy” was used for what we call the above sciences. If we take the meaning of the Constitution into 21st century usage, “science” refers to the domain of technology and process while “art” refers to works that are recorded, written, sounded, printed, or displayed. They have some physical manifestation including computer codes and visual displays.
The threshold for copyright is low when compared to patents. Both are legislated monopolies protecting intellectual property and the investment of time and capital to sell and distribute the works. Patents have to prove they are innovative; copyright has no such requirement. The work does need creativity and originally. Betzalel and other builders with all their skill and time are not considered creative or original. They can not hold a copyright on their buildings.
If one copies a geometric form or a computer program creates a geometric form lacks originality. A simple drawing of a circle lacks creativity. However, a figure with five circles, each a different color is the Olympic symbol and is protected by trademark law.
Consider the following cases
1. Inspiration. Michael Neuman loves archeology and is inspired on a visit to Masada and Qumron to write a story based on the events of time when the scroll MMT was created. He invents all of the characters and dialog.
2. New Psalm. In his epic novel based on the life and times of King David, Ya’akov Bar-Nof writes a poem in the style of the Biblical Psalm.
3. New Translation. Rabbi Yosef Klein does like the exact translation of the MMT he read in Biblical Archeology Review. Going back to the original Hebrew, he creates his own translation and includes notes explaining the translation.
All of these works, a story, a psalm within a novel, and translation are protected by copyright from the moment they are in fixed form. Assuming satisfaction of any legal requirements, they are entitled to the full term of protection. Authorship of these works is clear.
The following cases are revised from David Nimmer’s article mention in note 1.
4. The fountain. In Almodovar del Rio, Spain a fountain was unable to be used from 1492 until 2010. After the Moslem and Jewish subjects were expelled no one was left who could understand the complex machinery. In 2010 M.C.A Wassermann succeeded in restarting the fountain. Does Wasserman have a copyright to a flowing fountain?
6. The phone book. A local phone company decides to make the phone directory that takes into account rules of library name authority. The company has references to take care of alternative spellings, hyphenated names, foreign names and other surname variants that no phone company ever listed. The names are in alphabetical order according to library rules, not computer rules. The company calls the directory “a work of art.” Is this a work of art? Does it deserve copyright protection?
7. The skeleton. A gifted paleontologist excavates a complete skeleton of an Apatosaurus. She assembles the skeleton in a way that was not the same as previous skeletons. Casts were made of each bone. A rival paleontologist assembles the bones in a slightly different way. Can the first paleontologist claim copyright and sue the second?
8. Composite work. An artist takes two pictures from the motion picture, The Wizard of Oz and combines them into a single image that never existed in the motion picture. Is the result protected? Can the artist be considered the author?
Commentary on the Cases
In Case 4 Wasserman used considerable expertise and ingenuity in the fields of hydrology, architecture, history and archeology to repair the fountain. While he succeeded where others had failed and he restored someone else’s creation, he is not the creator and not entitled to copyright protection.
Case 5. Rutherford, who was awarded the Nobel Prize in Chemistry 1908, clearly made original and valuable contributions to the understanding of atom. He could secure a copyright protection over drawing the contained shading or coloring of an atom claiming it is graphic art. Another person could make another representation of atomic structure with spheres and orbits that does not infringe on his copyright. One can make a photograph, drawing or other graphic and copyright the artistic features, but not the structure itself. Two people could take pictures of the same sunset. They could both claim copyright protection only on their work, not the underlying landscape. The Rutherford case is moot, because any his works are now in the public domain.
Case 6 is similar to Feist Publication, Inc v. Rural Telephone Service Co.  Justice Sandra O’Connor, writing for a unanimous U.S. Supreme Court held that while a telephone director could contain introductions and other copyrightable materials, the alphabetical arrangement of names and numbers is not entitled to protection because a listing does not meet any requirement of originality. It is admirable that a phone company pays attentions to some of the concepts of name authority. This effort should appreciated by those using the directory, but it is not subjective or creative. Likewise making a directory of anything using objective criteria is not copyrightable, but using subjective criteria is protectable. For example a list of all businesses on Main Street is not creative, but a list of your favorite restaurants can be protected.
Justice O’Connor further stated, “The “sweat of the brow” doctrine had numerous flaws.” Copyright protection is only granted to material beyond the arrangement of information.
A shopping list of things you need from the store is neither creative nor original.  But if a list is part of your novel, it is protected.
Case 7. Although sculptures are protected by copyright, reconstructions are objective based on her knowledge of bones and anatomy. Her reconstruction could be challenged by another scholar. She did not choose materials or shapes. Since no subjective decisions were made, there is no copyright protection.
Case 8. This is the case of Gracen v. Bradford Exchange  Jorie Gracen created a painting of Dorothy superimposed over the Yellow Brick Road. The Court ruled her painting was derivative, lacked originality; therefore her copyright registration was invalid. The right to use images from The Wizard of Oz was not disputed as Gracen was authorized. The Court ruled that for a valid copyright, “a derivative work must be substantially different from the underlying work to be copyrightable.”
We have two criteria for copyright creativity and originality and the need for an author. The lack of one or the other would invalidate a copyright registration. Returning to the Dead Sea Scrolls—can a reconstruction be protected? Can a commentary or translation of the texts be protected?
Similar to the cases of the reconstructed fountain and Betzalel making the Tabernacle, the act of construction, repair or reconstruction is not a copyrightable event. No matter how long or what skills are required, the repair person has not met the criteria of authorship or creativity. They are trying to return the object to what someone else wrote, created, or designed. Translations and commentary are original and can be protected.
If you find an ancient text you can study it, translate it and comment on it and receive protection for your creative work. However, the text represents some challenges. Before 1978 works that were not published were protected by common law copyright. Once published, they needed to follow the law for protection that includes registration and a copyright claim in the work. Since the authors are long dead and the descendants are unknown, no one is going to claim to own the copyright on the text.
There are still more questions to be answered concerning authorship and public domain, but that is material for another column.
1. For the full story read David Nimmer, “Copyright in the Dead Sea Scrolls (Houston Law Review 38:1 2001) and the articles by Hershel Shanks in Biblical Archeology Review, such as “60 Years with the Dead Sea Scrolls” (May/Jun2007, Vol. 33 Issue 3), Shanks also covers the topic in chapter 4 “Freeing the scrolls” in his book, The mystery and meaning of the Dead Sea Scrolls (New York : Vintage Books, 1998)
Shanks lost his suit against Elisha Qimron, but he won in the court of public opinion. Shanks published reconstructions of a document from the Dead Sea Scrolls known as 4QMMT. (4Q is the fourth cave in Qumran. MMT is the abbreviation usually used. It means Miqsat Ma’ase ha-Torah or Some Precepts of the Law. It is also referred to as the Halakhic letter. )
For the responses to Nimmer’s article see: “The Dead Sea Scrolls: a live copyright controversy” / Jams L. Oakes. http://www.houstonlawreview.org/archive/downloads/38-1_pdf/HLR38P219.pdf and “Response to David Nimmer / Martha Woodmansee http://www.houstonlawreview.org/archive/downloads/38-1_pdf/HLR38P231.pdf Both are from the Houston Law Review 38 2001.
2. U.S. Constitution Article I, Section 8. Capitalization is from the original.
3. The idea of authorship under law is not the same under all jurisdictions. American law and Jewish law are very close in their understanding while French and German laws take a different philosophical view. That discussion is a topic for another paper.
4. Leslie McFarlane (1902-1977) wrote many of the books as works for hire. For more information see “Who wrote the Hardy Boys? : secrets from the [Stratemeyer] Syndicate files revealed” by James D. Keeline http://www.keeline.com/Hardy_Boys.pdf
5. Millie Benson, 1906-2002, write 23 of the first 30 books. http://articles.cnn.com/2002-05-29/entertainment/obit.benson_1_millie-benson-carolyn-keene-original-nancy-drew?_s=PM:SHOWBIZ
6. “Toward a theory of copyright: the metamorphoses of “authorship”” in Duke Law Journal 455 1991.
7. 499 U.S. 340 (1991) http://www.law.cornell.edu/copyright/cases/499_US_340.htm This case overturned a lower court decision.
8. In Copyright’s highway by Paul Goldstein (Stanford University Press, 2003) on page 13 Professor Goldstein disagrees with me and David Nimmer. He is mistaken.
9. 698 F.2d 300 (7th Cir. 1983) http://www.tabberone.com/Trademarks/CourtCases/7thCircuitCOA/GracenVsBradfordExchange.shtml Jorie Gracen won a contest for the best painting of Judy Garland as Dorothy in The Wizard of Oz. She sued the Bradford Exchange for using the likeness on porcelain plates.