Inke Arns on Sun, 27 Jul 2008 19:57:01 +0200 (CEST)

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<nettime> Use = Sue (Art in the Age of Intellectual Property)

Dear Nettimers,

last weekend the exhibition "Anna Kournikova 
Deleted By Memeright Trusted System - Art in the 
Age of Intellectual Property" opened its doors at 
the PHOENIX Halle in Dortmund, Germany. PHOENIX 
Halle until 1998 used to be part of the gigantic 
steelworks of Phoenix-West and since 2003 is used 
by Hartware MedienKunstVerein as a venue for 
media art exhibitions.

The exhibition which will be on view until 19 
October 2008 was curated by Francis Hunger and 
myself and features 26 projects by

AGENCY (BE), Daniel Garcia And?jar (ES), Walter 
Benjamin (US), Pierre Bismuth (FR), Christian von 
Borries (DE), Christophe Bruno (FR), Claire 
Chanel & Scary Sherman (US), Lloyd Dunn (US/CZ), 
Fred Froehlich (DE), Nate Harrison (US), John 
Heartfield (DE), Michael Iber (DE), Laibach/Novi 
kolektivizem (SI), Kembrew McLeod (US), Sebastian 
L?tgert (DE), Monochrom (AT), Negativland and Tim 
Maloney (US), Der Plan (DE), Ramon & Pedro (CH), 
David Rice (US), Ines Schaber (DE), Alexei 
Shulgin & Aristarkh Chernyshev (Electroboutique, 
RU), Cornelia Sollfrank (DE), Stay Free (US), 
Jason Torchinsky (US), UBERMORGEN.COM & 
Alessandro Ludovico & Paolo Cirio (CH/AT/IT), a.o.

Check out for detailed information.

I wrote the following text for the exhibition 
catalogue which will be published in early 
September 2008.

A timely coincidence with Florian's recent 
posting on the "museum of the stealing of souls" 



Inke Arns

Use = Sue
On the Freedom of Art in the Age of 'Intellectual Property'

You can't use it without my permission ... I'm gonna sue your ass!
(Negativland & Tim Maloney, Gimme the Mermaid, music video, 4:45 min., 2000)

The words above are yelled by Disney's Little 
Mermaid in the furious voice of a copyright 
lawyer in the music video Gimme the Mermaid1 by 
the band Negativland and the Disney animated 
filmmaker Tim Maloney. Made for Black Flag's song 
Gimme Gimme Gimme, this video shot in the early 
1980s aesthetic is deliberately sited - as a 
quasi-political aesthetic statement that also 
diametrically opposes the prevailing Zeitgeist - 
at the start of the exhibition Anna Kournikova 
Deleted By Memeright Trusted System - Art in the 
Age of Intellectual Property.

1970s/1990s: Plunderphonics

Negativland is a Californian 'plunderphonics' 
band that was founded in the late 1970s and works 
with collage and sampling techniques. In 1991 it 
released the non-commercial single U2, which 
included samples from the U2 song I Still Haven't 
Found What I'm Looking For, and led to copyright 
litigation by the Island Records label on behalf 
of the rock band U2. Although Negativland tried 
to describe their usage of the samples as 'fair 
use', they were obliged to recall and destroy the 
entire pressing. The costs of the trial brought 
the band to the brink of financial ruin.

'Plunderphonics', a term coined by the Canadian 
musician Jon Oswald at a Toronto conference in 
1985, is used to describe music consisting 
exclusively of samples of other music.2 For 
Oswald, 'plunderphonics' are conceptual pieces of 
music made up exclusively - in contrast to 
current sampling methods - of samples of a single 
artist, for instance material (typically vocals 
or rhythms) by James Brown. Oswald's 
non-commercial album Plunderphonics of 1989 
contained twenty-five tracks 'compressed' in this 
way, each one consisting of material by a 
different artist. Among other songs, Michael 
Jackson's Bad had been broken down into the 
smallest musical units and re-assembled under the 
title Dab. Oswald minutely listed every sample on 
the cover of his album. The cover of Dab was a 
'revealing' montage of the cover of Michael 
Jackson's album Bad. After the Canadian Recording 
Industry Association threatened Jon Oswald with 
uncompromising litigation (and, as a consequence, 
financial problems) for copyright infringement, 
he was forced to destroy all the records not yet 
in circulation.3

1960s: Cut-Up

The 'Cut-Up' technique served as important 
inspiration to Oswald's concept of 
plunderphonics. Brion Gysin and William 
Burroughs, whose book Naked Lunch had just 
appeared, invented Cut-Up in the Beat Hotel in 
Paris on 1 October 1959. The technique involves 
randomly cutting up found written and audio 
material then re-assembling it according to 
chance.4 Some of the resultant sentences contain 
amusing nonsense, while others appear to have an 
encrypted meaning. Gysin and Burroughs also used 
tape recorders, and dragged the recording tape 
across the recording heads manually, with the 
result that entirely different sounds and words 
were suddenly to be heard. 'It was as if a virus 
was driving the word material from one mutation 
to the next',5 and Burroughs found it appropriate 
to use in his first text collages a report on the 
state of virus research.

1950s/1980s: D?tournement, Plagiarism

A further historical strand - that of 
Situationist d?tournement (reversal, turning) and 
Neoist plagiarism - stretches back to the French 
poet Comte de Lautr?amont (Isidore Ducasse, 
1846-70). In his Po?sies (1870), he wrote: 
'Plagiarism is necessary. It is implied in the 
idea of progress. It clasps the author's sentence 
tight, uses his expressions, eliminates a false 
idea, replaces it with the right idea.'6 Florian 
Cramer points out that Lautr?amont's concept of 
plagiarism became the Situationist d?tournement 
in the 1950s and then, thirty years later, was 
retranslated into 'plagiarism' by the alternative 
anti-copyright cultures.7 The 'Festivals of 
Plagiarism' staged in 1988 and the subsequent 
year defined plagiarism as the 'conscious 
manipulation of pre-existing elements in the 
creation of "aesthetic" works. Plagiarism is 
inherent in all "artistic" activity, since both 
pictorial and literary "arts" function with an 
inherited language (...) Plagiarism enriches 
human language.'8 The analogue media such as 
photocopiers, printed T-shirts, VHS and audio 
cassettes used at the Festivals of Plagiarism 
(which for their own part plagiarised the Fluxus 
festivals and the Neoist Apartment festivals) 
resemble those of Mail Art, which worked with 
collages and photocopies. This movement, in which 
amateur artists interested in Dada and Fluxus 
were networked, emerged from Ray Johnson's New 
York Correspondence School in the 1960s. While 
Mail Art, and in particular Neoism, sought to 
undermine the concept of originality by the act 
of deliberate repetition, it was astonishingly 
the case that 'none of the participants reflected 
upon the unlimited capability to copy and 
plagiarise digital information.'9

A Broad Culture of Appropriation

The late 1980s were possibly too early still for 
such a step to be taken. The examples described 
above (which were, admittedly, obscure to the 
larger public) represent a broad culture of 
appropriation in the twentieth century that using 
images, texts, recordings and other fragments of 
culture speaks about precisely the same culture - 
almost in the sense of a 'close reading'. The 
most prominent representative of this culture of 
appropriation is Pop Art, which was founded in 
the late-1950s by Richard Hamilton in Great 
Britain and by Andy Warhol, among others, in the 
USA. This artistic movement, which counts as a 
precursor of the postmodern, deployed and 
appropriated images of the Western world of 
consumerism and merchandise. In the Soviet Union, 
the 1970s saw the analogous development of 
so-called Sots Art that made use of the visual 
arsenal offered by the world of Communist 
merchandise and propaganda. The protagonists of 
the US-American 'Appropriation Art' of the 1970s 
and '80s produced deliberate and strategically 
considered copies of works by other artists (for 
instance, Sherrie Levine's After Walker Evans, 
1971) in order to undermine concepts like 
originality and authenticity. 'Found footage', 
for its part, describes works of film that 
incorporate and manipulate existing film material 
(examples include work by Martin Arnold, Douglas 
Gordon, Oliver Pietsch). Radical concepts of 
appropriation are formulated in the early stories 
of Jorge Luis Borges as well as in the 
poststructuralist theory of intertextuality, 
published in 1966, of the literary theorist Julia 
Kristeva: 'Any text is constructed as a mosaic of 
quotations; any text is the absorption and 
transformation of another.'10 Both explicit 
intertexuality (that is, chosen as conscious 
strategy) and implicit intertextuality subvert 
the nineteenth-century Romantic concept of the 
artist-genius autonomously creating from within, 
and replace this notion with a more contemporary 
concept for which the reception (and processing 
of the existing) is more important than the 
production of what is genuinely new.

Intellectual Property as the 'Oil of the Twenty-First Century'

In a post-industrial society production is no 
longer confined to material goods (such as steel 
and coal) but increasingly extends to immaterial 
goods. However, a significant difference exists 
between the two: immaterial goods like knowledge 
and information can be reproduced without 
impairment, which is not the case with material 
goods. But in order to be able to function within 
a value chain, the distribution of these 
immaterial goods must be restricted - namely with 
the aid of patent, copyright and trademark law. 
All these instruments are forms of 'intellectual 
property'.Mark Getty, the founder of Getty 
Images, which as the world's leading provider of 
stock images (alongside Corbis) owns over seventy 
million digitised images, therefore aptly 
described 'intellectual property' as the 'oil of 
the twenty-first century'.

As a 'hotly contested factor in our economy as a 
whole',11 copyright law is in the process of 
becoming the market-regulating instrument of 
post-industrial society. The consequences of this 
development are considerable: 'The expansion of 
copyright law is leading to an unparalleled 
concentration of resources in the hands of 
globally active quasi-monopolists in the media 
and IT markets.'12 The philosopher Eberhard 
Ortland therefore compares the question of future 
access to 'intellectual property' with the issue 
of access to water, a resource necessary to life. 
'The question of who controls access to the 
immaterial goods and data streams - and to which 
conditions access in a particular case is linked 
- will become one of the central questions of 
power in the twenty-first century. It is not just 
a matter of vast sums of money; elementary civil 
liberties are also at stake - such as the right 
to inform oneself without hindrance in the 
framework of the knowledge available, and the 
right to communicate this information to 
others.'13 An outlook on the unparalleled 
privatisation of intellectual property is given 
in the exhibition Anna Kournikova Deleted By 
Memeright Trusted System by Kembrew McLeod's 
project Freedom of Expression(tm), for which the 
American university professor trademarked14  the 
term 'freedom of expression', and threatened with 
legal action anybody who used his trademark 
without the express authority of the owner. 
Already in 1997, the Spanish artist Daniel Garc?a 
And?jar collected for his project Language 
(Property)15 vast numbers of sentences that are 
now registered trademarks and therefore the 
property of their (corporate) owner. Examples 
include 'Where do you want to go today? (tm)' 
(Microsoft) or 'What you never thought 
possible(tm)' (Motorola). The overriding motto of 
And?jar's work was consistent: 'Remember, 
language is not free(tm)'.

Asymmetrical Expansion of Copyright to the Advantage of Exploiters

'The past ten years have witnessed a progressive 
expansion of copyright - but by no means in the 
interest of creative activity, and even less so 
with reference to the common good.'16 The lawyer 
Reto Hilty, director of the Max-Planck-Institut 
fuer Geistiges Eigentum, Wettbewerbs- und 
Steuerrecht, talks of a 'dangerous fiction to 
which we succumb almost passionately - but 
without reflecting - namely the notion that 
copyright protects the author.'17 It is necessary 
to distinguish between three agents whose 
interests copyright law must take into 
consideration: authors (creators), consumers, and 
the 'copyright industries' (Hilty), in other 
words: the exploiters. Hilty points out that the 
last-named group is 'incredibly skilled at being 
perceived under the title of "author"' by using 
the generic term 'owner of the rights' that 
conceals however the fact that author and 
exploiter 'by no means pursue the same 
interests'.18 That the exploiters desire to 
extend the copyright protection is 
understandable. 'The usual formula "more 
protection = more creativity" is highly 
acceptable, being terribly easy to understand.'19 
However, it is for the most part the case that 
nobody notices that the hands of precisely the 
authors - the actual creative forces - are being 
bound at the same time. Not just since the 
beginning of the twenty-first century has 
creativity often been - as described above - 
're-creativity' from authors reliant upon open 
access to knowledge and cultural artefacts. This 
aspect is confirmed by Hilty: 'As we know, nobody 
is in a position to create something new without 
taking recourse to the pre-existing. And in 
consequence we should not be allowed to advance 
copyright to the point that the production of new 
works is hindered by, of all things, copyright 
law. But we are well on the way ... to doing 
precisely that.'20

'Digital Dilemma': Tension Between Participation and Exploitation

The above situation is exacerbated by the 
so-called digital dilemma. At the very moment 
when digitalisation and the possibility of 
worldwide access to knowledge could exercise a 
positive influence on the availability of 
content, considerable constraints are being 
placed - paradoxically - upon access, with the 
result that digitalisation is leading to a 
regular scarcity. The reason for this development 
is to be found in the sharp reaction of the 
rights industry to the ability of digital works 
to be copied and distributed with no impairment 
of quality. Since 1990, the exploiters have been 
pressing for the introduction of technical 
protection measures (Digital Rights Management, 
DRM). However, not only do these technical 
barriers prevent the mass copying of digital data 
in, for instance, Internet exchange forums, they 
also make it impossible to carry out actions that 
are guaranteed by existing copyright law, for 
instance, the right to make a copy for private 
use.21 In 1996 the World Intellectual Property 
Organisation (WIPO) passed two agreements 
relating to the internet that place under penalty 
any 'cracking' of this protection.22 Furthermore, 
the right to re-sell digital works was 
abolished.23 Now that DRM has proved not to 
function, however, the rights industry (in 
particular, the International Federation of the 
Performing Industry IFPI) is currently targeting 
the infrastructure level of the Internet Service 
Providers (ISPs) with demands for internet 
filtering and barring those who repeatedly 
infringe copyright from using the internet. By 
means of the multilateral Anti Counterfeiting 
Trade Agreement (ACTA), the US-American, 
European, and Japanese rights industries are at 
present trying to enforce these and other 
measures worldwide in the course of clandestine 
negotiations that bypass the national parliaments 
and the appropriate UNO agencies, the WIPO and 
the World Trade Organisation (WTO). Any 
discussion in the framework of these bodies would 
entail publicity - something that would not be 
beneficial to the cause of the exploiters.

Let us return, however, to the paradoxical 
situation presented by the ' digital dilemma' 
that Hilty, too, describes as highly problematic: 
'The greater the number of works available 
online, the wider the theoretical range of 
possibilities of usage; yet in practical terms 
this usage is proving to be increasingly 
difficult the less traditional - that is, 
physical - copies of works are being produced.'24 
For if works can only be used online, users are 
at the mercy of the conditions drawn up by the 
owners of the rights, and as mentioned above the 
rights are generally owned not by the authors but 
by the exploiting parties who favour the 
expansion of copyrights, digital rights 
management (DRM) and controlled access to the 
internet - a de facto ban on copying (and more 
besides). The copyright law currently in force, 
which has yet to be adequately adjusted to the 
digital age, therefore affects 'access to 
knowledge on the net in a much more far-reaching 
and fundamental manner,' according to Jeanette 
Hofmann, 'than is the case in the analogue 
world.'25 Hofmann describes the digital dilemma 
as follows: 'In the much-quoted information 
society the possession of and the access rights 
to knowledge of all kinds are developing equally 
into a pre-defined breaking point for democracy 
as well as into a growth-intensive value-added 
chain. In the relation of tension between claims 
to democratic participation and economic 
exploitation interests lies (...) the core of the 
digital dilemma. The manner in which exclusive 
exploitation rights and public entitlement to 
usage of knowledge, or knowledge wares, are 
brought into balance in the future is a political 
matter likely to become of the central 
distributive questions in the new economy.'26

On the Future of Art in the Age of 'Intellectual Property'

'Copyright law pursues the goal of safeguarding 
the generation of knowledge by furnishing the 
producers with control over the usage and 
distribution of their works. At the same time, 
however, it follows the intention of safeguarding 
public access to this knowledge - not just 
because the generation of knowledge is recognised 
to be a process involving a division of labour, 
but obviously also because all those who generate 
or distribute knowledge by necessity themselves 
take recourse to existing stocks of knowledge.'27

The expansion of copyright that at present 
amounts to a de facto expansion of exploiters' 
rights is bringing about an 'increase in the 
opportunities to deliberately or negligently 
violate third-party copyrights as well as an 
increase in the risk of being falsely accused of 
violating third-party copyrights (...) 
particularly in those cases in which collage or 
sampling techniques are deployed, or in 
conceptual art.'28 That is why the ranks of 
critics of the expansion of intellectual property 
rights are swelling - particularly in areas where 
'intellectual property' in its present form 
'turns against freedom in art (and science) and 
threatens to obstruct the production of new 

In view of these developments, the exhibition 
Anna Kournikova Deleted By Memeright Trusted 
System - Art in the Age of Intellectual Property 
mounted on the 2,200 square metres of floor space 
in the PHOENIX Halle on the former site of 
Phoenix-West steelworks in Dortmund inquires into 
the implications for art and music that 
appropriates, samples and cites existing material 
in an era of copyright (or intellectual property) 
law increasingly favouring exclusive exploitation 
rights as opposed to public entitlement to usage. 
In contrast to the assertion of the copyrights 
industry that the expansion of copyright (for 
whom?) signifies more creativity, the exhibition 
posits the thesis that creativity is, and 
continues to be, possible only if artists are in 
a position to create new work with recourse to 
existing material. Appropriating art that speaks 
about culture by referring to cultural artefacts 
and deploying found aesthetic material will only 
be able to continue to come into being if in the 
future too it is assured that sufficient 
allowance is made for the democratic rights of 
participation (of consumers, but of originators, 
too!) alongside the justified economic interests 
of the originators and exploiters.

If the development of copyright and other 
intellectual property rights continues along the 
present lines, it will become questionable 
whether sufficient consideration is given to 
general participation. Tightened up in the 
interest of the exploiting parties, copyright law 
would turn against the freedom of art and 
degenerate into an effective instrument for 
suppressing innovation. It would become 
increasingly difficult to talk about culture by 
using images, logos or sound fragments of 
precisely that culture. A foretaste of such a 
development is already given by the vast 
reduction in the usage of sampling in hip hop 
since the legal departments of major labels have 
started to aggressively pursue the unlicensed 
usage of samples by musicians signed to other 
labels. In this sense, it would be possible to 
ask in regard to the works featured in this 
exhibition: What would happen to, for instance, 
Fred Fr?hlich's digital animation Volume 1 that, 
made up of over ten thousand 'stock photographs', 
represents a heightened form of 'plunderphonics' 
or found footage? This work speaks, just as does 
Der Plan's karaoke music video Hohe Kante (2004), 
explicitly and critically about our times - using 
images of our times' everyday culture.

Happy Birthday To You

The fictitious newspaper announcement of the 
death in 2067 of the ex-professional tennis 
player and model Anna Kournikova referred to in 
the exhibition title Anna Kournikova Deleted By 
Memeright Trusted System describes not only a 
distant future but to some degree the reality of 
the present day. The unpleasantly formulated 
notice briefly reports that Kournikova, who 
copyrighted her appearance, or her 'trademark', 
against illegal lookalikes, was identified as an 
illicit copy of her own self while on a 
non-registered trip in the Asian-Pacific region, 
and was deleted by the high-power laser beam of a 
satellite operated by the Memeright Trusted 

However, a similar scenario might play at your 
next birthday party if such a system were to be 
installed. Did you know that the song Happy 
Birthday To You30 is owned by Time Warner, the 
world's largest company in the field of 
entertainment? Every time you sing the song 
without the owner's permission you are guilty of 
copyright infringement. To this extent, the 
equation of 'use' and 'sue' is more than just a 
play on words. Bear that in mind next time you 
throw a party, and obediently pay your licence 
fees. The alternative? Don't sing the song.

(Translated by Tom Morrison)

1 Music video for the song of the same title, 
published on the Negativland CD Fair Use: The 
Story of the Letter U and the Numeral 2, 2000.
2 Jon Oswald, 'Plunderphonics, or Audio Piracy as 
a Compositional Prerogative' in Wired Society 
Electro-Acoustic Conference (Toronto, 1985),
3 The court proceedings against Negativland were 
accompanied in 1993 by the appearance of the CVS 
Bulletin ('Copyright Violation Squad Bulletin'), 
a kind of manifesto of Plunderphonics. See
4 As purely poetical methods of generating 
unusual images, 'cut-up' and 'fold-in' had 
numerous forerunners among the Dadaists and 
Surrealists, among the Lettrists and Concrete 
poets of the 1950s, in the 'cross-column 
readings' that became fashionable as a parlour 
game in England around 1770, as well as in the 
'ars combinatoria' of the European Mannerists, 
who used combination tables to generate generated 
so-called opposition metaphors in the sixteenth 
and seventeenth centuries.
5 Carl Weissner, 'Das Burroughs-Experiment' in 
Burroughs, eine Bild-Biographie (Berlin, Dirk 
Niehsen Verlag, 1994), p. 62.
6 'Le plagiat est n?cessaire. Le progr?s 
l'implique. Il serre de pr?s la phrase d'un 
auteur, se sert de ses expressions, efface une 
id?e fausse, la remplace par l'id?e juste.' 
(Isidore Ducasse, Po?sies, 1870, available at
7 On this, see the panel held on 'Art as 
Anticopyright Activism', Wizards of OS 3, Berlin, 
8 'Plagiarism', Festival of Plagiarism, London, January-February 1988.
9 Florian Cramer, Anti-Copyright in 
k?nstlerischen Subkulturen, lecture held on 22 
September 2000,
10 Julia Kristeva, 'Word, dialogue and novel' in 
The Kristeva Reader, ed. Toril Moi (Oxford 
University Press,
1986), p. 37.
11 Reto M. Hilty, 'Suendenbock Urheberrecht?' in 
Geistiges Eigentum und Gemeinfreiheit, eds. 
Ansgar Ohly und Diethelm Klippel (Tuebingen, Mohr 
Siebeck, 2007), pp. 107-44; here p. 111.
12 Eberhard Ortland, 'Die Schluesselrolle der 
Kunst fuer das Urheberrecht' in Urheberrecht im 
Alltag. Kopieren, bearbeiten, selber machen /, eds. V. Djordjevic et al. (Bonn, 
Bundeszentrale f?r politische Bildung, 2008), pp. 
311-15; here p. 311.
13 Ibid., p. 312.
14 Words can be trademarked but not copyrighted.
15 Shown by HMKV as part of the 2006 exhibition 
The Wonderful World of
16 Hilty 2007, p. 144.
17 Ibid., p. 113.
18 Ibid., p.114.
19 Ibid., p. 137. The same assertion was made in 
the open letter addressed to Federal Chancellor 
Merkel by the Federal Association of the German 
Music Industry on 'Intellectual Property Day' 
(printed in Frankfurter Allgemeine Zeitung, 25 
April 2008).
20 Hilty 2007, pp.118-19.
22 The agreements were implemented in the Digital 
Millenium Copyright Act (DMCA) in the USA in 
1998, and in the EU Directive on Copyright in the 
Information Society in 2001.
23 Unlike digital data, material sound carriers 
like records, CDs or DVDs may be re-sold, for 
instance in second-hand shops.
24 Hilty 2007, p.110.
25 Jeanette Hofmann, 'Das "Digitale Dilemma" und 
der Schutz des Geistigen Eigentums', contribution 
to conference Wem geh?rt das Wissen?, 
Heinrich-B?ll-Stiftung, Berlin, October 2000,
26 Hofmann 2000.
27 Hofmann 2000.
28 Ortland 2008, p. 312.
29 Ortland 2008, p. 314.
30 The melody was published under the title Good 
Morning to All in 1893 by the schoolteachers 
Mildred and Patty Hill in their book Song Stories 
for the Kindergarten. Children then started to 
sing the song with their own lyrics at birthday 
parties. In the exhibition, see Illegal Art, CD; 
see also Kembrew McLeod, 'Copyright and the Folk 
Music Tradition' in id.,Owning Culture. 
Authorship, Ownership & Intellectual Property Law 
(New York, Peter Lang, 2001), pp. 39-69.


Dr. Inke Arns
K?nstlerische Leiterin / Artistic Director
Hartware MedienKunstVerein
G?ntherstrasse 65
D-44143 Dortmund
T +49 - 231 - 823 106
F +49 - 231 - 882 02 40
M +49 - 176 - 430 62 793

Anna Kournikova Deleted By Memeright Trusted System -
Kunst im Zeitalter des Geistigen Eigentums
Art in the Age of Intellectual Property
HMKV at PHOENIX Halle Dortmund
19 July - 19 October 2008

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