KIU Journal of Social Sciences

KIU Journal of Social Sciences ©2017 Kampala International University ISSN: 1996902-3; 3(1): 293–301

Originality in Copyright and the Debate on Protection of Traditional Knowledge: A View on Nigerian Law

K. I. ADAM, I. A. YUSUF University of Ilorin, Nigeria

1. Introduction

Copyright is perhaps the most popular and designed to protect an item fails to achieve its familiar branch of law target, it should, at least, not become a tool of which is used for the protection of literary, oppression against such item. It thus becomes artistic, and dramatic achievements. Eligibility imperative that such a key principle should be to copyright protection rests mainly on the re-examined to safeguard the integrity of our requirement of which arguably is the copyright law. It is precisely that task that has main force in the creative process of all arts. been undertaken in this paper where the nature Ironically, this same condition has greatly of copyright and traditional knowledge is undermined the influence of copyright in so far considered to highlight the factors of as protection of traditional knowledge is inconsistency between the two systems. It concerned. For instance, it is generally believed further examines how the technical manipulation that copyright cannot protect traditional of originality has while seeking to achieve knowledge because the latter lacks originality. copyright objectives ended up promoting Surprisingly, materials or products derived from predatory activities against traditional traditional knowledge have overtime received knowledge which should ordinarily be its copyright protection through their collection or candidate for protection. The paper therefore compilation into books or other media of argues that the system could be strengthened to fixation. It is for this reason that some have at least offer negative protection of traditional heavily criticized the originality requirement as knowledge where the element of innovation or ineffectual or a mere subterfuge, since it fails to creativity is read into its test of originality. The stand against copyright protection of mere next section examines the general notion of collection of information or ideas which were protection of intangible materials and its originally generated by persons other than the relevance to traditional knowledge. collectors. 2. The General Notion of Protection of The truth is that the technical connotation of Intangible Property “originality” is not consistent with ordinary thinking whereby creativity or innovation is an Traditional knowledge is a form of intangible integral part of an original work. This calls the asset in that it lacks physical substance and fairness of the copyright system into question. shares the general characteristics of knowledge The point been made is that where a principle which, as Jefferson noted, is an iconic non-

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KIU Journal of Social Sciences rivalrous public good – “he who receives an idea protection is fluid and the same legal tools can from me …. as he who lights a taper at mine, be applied to achieve the different objectives. receives light without darkening me” This The copyright system, being property-based, feature of an intangible asset necessitated the tends largely towards the positive protection intervention by law to create statutory property regime and therefore insists that its subjects from the intangible sources as a form of must fulfil established standard, including protection, and it is precisely that intervention requirement of originality for copyright, which, that is otherwise known as the intellectual as shown in the next section, is obviously hard property protection. for a local initiative as traditional knowledge to fulfil. Protection by intellectual property could take two different dimensions: either positive or 3. Nature of Traditional Knowledge negative (defensive) protection. Positive protection involves acquisition of property rights The term “traditional knowledge” refers to either through IPRs or other rights provided by a knowledge, possessed by local or indigenous legal mechanism created to protect people, in one or more societies and in one form developments of arts and science. For example, or another, including art, dance and music, a special legal provision vesting in the right- medicines and folk remedies, folk culture, holder the right to grant or withhold consent to biodiversity, knowledge and protection of plant access and use a protected subject or to claim varieties, handicrafts, designs and . entitlement for use of such subject qualifies as Thus, as will be seen later, several traditional positive protection. A common example of knowledge products are in the nature of works positive protection can be found in the various protected by copyright. The term “traditional” intellectual property devices such copyright, used in describing this knowledge does not patent and which are based on imply that this knowledge is old or unscientific established standard of protection. There is also in nature, but that it is “tradition-based.” It is a special kind of intellectual property protection “traditional” because it is created in a manner commonly referred to as sui generis protection. that reflects the traditions of the communities, This can either take the form of property regime, therefore not relating to the nature of the liability regime or a combined system containing knowledge itself, but to the way in which that the elements of both. A property regime vests knowledge is created, preserved and exclusive rights in the owner, and fundamental disseminated. aspects of the rights are the rights to authorise, refuse, and set conditions of access to the target Traditional knowledge is collective in nature and property, while, a liability regime allows a third is often considered the property of an entire party to make use of the protected subject community, and not belonging to any single without fulfilling any entry requirements subject individual within the community. It is to liability to pay compensation after use. transmitted through specific cultural and traditional information exchange mechanisms, On the other hand, defensive protections (also for example, it is maintained and transmitted known as negative sui generis protections) are orally through elders or specialists (breeders, legal devices designed to prevent wrongful healers, etc.), and often to only a select few appropriation or unauthorised exploitation of people within a community. protected subject regardless of whether such consists of undisclosed information or publicly It is precisely some of these features of available knowledge. In the strict sense, this traditional knowledge that have been found to form of protection has a negative connotation work against its copyright protection. As will be and does not confer any entitlement but this is seen in the next section of this paper, the not always the case. In practice, the boundary features of traditional knowledge seem between positive and defensive forms of incompatible or sharply contrast with the

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KIU Journal of Social Sciences principles and framework of copyright musical and dramatic works to copyright protection. protection is anchored on twin requirements that the production must be original and must have 4. Nature of Copyright been fixed in a definite medium of expression. Under the Nigerian Copyright Act, for instance, Copyright is one of the legal devices designed to a work is required to have an original character protect intangible materials. It protects a list of but no definition is provided for the term works including literary, artistic and musical original. What then is originality? works. However, the Nigerian Copyright Act also contains provisions for live performance of 4.2 Concept of Originality such intangible materials when they are not Literally, originality is defined as “the ability to qualified as works. think independently and creatively” or “the Generally, the author is the first owner of quality of being novel or unusual”, which copyright in a work unless it was made pursuant suggests a connection between originality and to a contract or under the author‟s employment, the concept of “creativity”. The terms in which case the owner is the person who “creativity” and “unusualness” are both abstract contracted the author or his employer as the case for a legal definition and subjective for may be. However, parties are entitled to choose determining the scope of copyright protection. the terms of their own agreement concerning Thus, the courts have had, over the years, to ownership or such transfer of copyright. A grapple with the task of providing an objective copyright owner has exclusive right to do such definition for the term “originality”. things including the reproduction of the work in any material form; communication to the public; 4.3 Judicial Approaches to Originality the performance, showing or playing to the Two main judicial approaches have evolved public; the distribution of copies to the public by globally in the conception and application of the sale or other transfer of ownership and doctrine of “originality” in copyright context, commercial rental to the public. The right of the namely the British-American model, and the copyright owner is infringed when someone civil law approach. However, the approach of exercises any of the rights reserved for the the European Court of Justice as well as the copyright owner. understanding of the concept in copyright diplomatic circles also deserves to be mentioned. Copyright is conferred for a definite period. In The conception of originality in British- literary, musical or artistic work other than American copyright jurisprudence derives photographs, it lasts until seventy (70) years basically from the Utilitarian theory of after the end of the year in which the author dies. incentivising productions to add to the store of In Nigeria, the Copyright Act is the statute that information, enrich cultural life and the fabric of provides for the protection of copyright and the society. For instance, article 1(8) 8 of the related rights. The potentials of copyright to US Constitution justifies the protection of protect and at the same time exploit traditional copyright on promotion of useful arts. Hence, knowledge are discussed in relation to the issue originality is conceived more by reference to the of originality in the sections that follow. skill, efforts and labour of the creator than his personal ingenuity. The same philosophy 4.1 The Relevance of Originality to Copyright underlies the United Kingdom‟s copyright As noted earlier, copyright law provides for the policy as could be seen in the long title to protection of works of art which include literary, Copyright Act 1709-10: An Act for the artistic and dramatic works, musical works, encouragement of learning, by vesting the copies sound recordings, cinematography and of printed books in the authors or purchasers of broadcasting. Rights in copyright are automatic such copies, during the times therein mentioned. as they come into existence upon the creation of The approach was otherwise expressed in the a work without any requirement for formal celebrated dictum of J. Peterson in the registration. The eligibility of literary, artistic, University of London Press Case2 that:

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“The word original does not in this connection that the relevant solicitors and barristers could mean that the work must be the expression of be written to, inviting them to appear in the original orinventive thought. Copyright Acts are defendant‟s directory. not concerned with the originality of ideas, but with the expression of thought. The originality Aldous, J. however held that it was clear that a which is required relates to the expression of person could not copy entries from the plaintiff‟s thought. But the act doesn‟t require that the directory and use them to compile its own expression must be in an original or novel form, directory. The defendant did not deny that the but that the work must not be copied from plaintiff had copyright in its directory, but another work that it must originate from the denied infringement. The judge, however, had author.” little difficulty in deciding that what was taken was a substantial part. The quality of what is taken is usually more important than the The social and economic considerations of the quantity, but in the present case the parts British-American model has a great influence on reproduced were important in that they enabled its conception of “originality” in the context of the defendant to carry out a comprehensive skill, labour and judgement expended in the mailing. production of a work. The basic principle of common law jurisdictions is that anything which The above approach has consistently enjoyed the has involved labour is worth protecting, and the favour of common law courts as far as amount of labour involved needs not be great. conception of originality is concerned. Other Perhaps, the dictum of Megarry J in British illustrative examples include Schroeder v. Northrop Ltd. V. Texteam Blackburn Ltd in William Morrow & Co; Adventures in Good relation to drawings will offer a useful eating v Best Places to Eat; and Engineering illustration in this regard. He said: Dynamics Inc. V Structured Software Inc.

It may indeed be that something may be drawn In Schroeder v. William Morrow & Co, the which cannot fairly be called ... a drawing of defendant had copied 27 out of 63 pages of the any kind: a single straight line drawn with the plaintiff‟s catalogue of gardening suppliers. It aid of a ruler would not seem to me a very was held that this constituted an infringement of promising subject for copyright. But apart from copyright. Similarly, in Adventures in Good cases of such barren and naked simplicity as Eating v Best Places to Eat, it was held that the that, I should be slow to exclude drawings from defendant had infringed the copyright in the copyright on the mere score of simplicity. plaintiff‟s restaurant guide by copying entries from it. In Engineering Dynamics Inc. V The threshold of originality for copyright Structured Software Inc. it was held that a protection is that low. Thus, in Waterlow compilation of facts for a user interface was Directories Ltd v Reed Information services Ltd, copyrightable. Finally, a guide to state tariffs both the plaintiff and the defendant in this case charged on operating pay telephone companies, published legal directories containing the names and in Info. Servs. Inc. V Maclean Hunter and addresses of solicitors and barrister. In 1990, Market Reports a red book listing of used car the defendant decided to update its directory. It values based on the professional judgement and did by comparing it with the plaintiff‟s, expertise of the author. highlighting those names which appeared in the plaintiff‟s directory but not the defendant‟s. It While it is correct to state that the foregoing also decided to include, as did the plaintiff‟s, a represents the dominant common law approach, section listing solicitors and barristers in public it is by no means the only judicial interpretation authorities and industry. For the purpose of of originality. The threshold has been raised in a updating the defendant‟s directory, the names number of cases especially in the US. For and addresses not appearing in the defendant‟s instance, some federal courts in the United directory were loaded onto a word processor, so States included the element of creativity in the

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KIU Journal of Social Sciences definition of originality and this approach dictionary, the court of Appeal of Paris found received the approval of the Supreme Court in that “the choices and intellectual operations Feist Publications Inc. V Rural Telephone required to create the [bilingual dictionary]” to Services. In that case, Justice O‟Connor stated allow the resulting work to satisfy certain degree that in order for a work to be considered of originality. In that case, the court made it „original‟ it must not only be an independent clear that the mere sorting of data that was creation, it must also show “a modicum of difficult to generate in alphabetical order was creativity”. not original. Originality can only follow from intellectual creative (as opposed to technical or 4.4 The Civil Law Approach dictated by the function of format) choices. The The test of originality in France can be safely approach is approved by the French Supreme used to exemplify the civil law copyright Court by holding that labour itself was tradition. In that jurisdiction, the author‟s right is insufficient and that it is necessary to look at the founded on the link between the author and the choice of the method used by the author of the work emanating from his mind. This is a compilation. subjective approach based on a Hegelian philosophy of requiring that the work expresses 4.5 The Approach of the European Court of or reflects the author‟s personality. The classic Justice French theory is that an original work „bears the In order to harmonise copyright protection in EU mark of the personality of its author and confers countries and set a common level of originality on the created object a specific aspect” This is requirement in several aspects of copyright law, probably founded on the notion that an European Union set some Directives which are individual‟s personality caused the work to mainly based on the “authors‟ own intellectual come into existence. In his explanation of the creation” criteria. The ECJ manifested its personality theory as applies to artists, authors departure from the English minimalist standard and inventors of original and derivative works, of originality when it held in Infopaq Justin Hughes notes that such a work “comes International A/S v DanskeDagbladesForening into the world already an embodiment or that the EU originality test (“author‟s own reflection of some particular individual”. Thus, intellectual creation”) applies beyond „works‟ Delacroix called paintings “a bridge linking the designated in a series of directives – namely painter‟s mind with that of the viewer,” computer programmes, photographs, and Solzhenitsyn said that literature “transmits databases – so as to encompass all categories of incontrovertible condensed experience,” and works under the into the Thomas Jefferson called inventions “the fugitive European sphere. fermentation of an individual brain”. 4.6 Originality in International Instruments However, a strict application of the classical test There is no explicit requirement under the to such works as compilations, computer international copyright instruments that a work programmes and databases appears problematic must be original to attract protection, thus none as they could be rendered unprotected on ground of those instruments contains any definition of of lack of originality. It is perhaps the “originality”. However, records of diplomatic recognition of such limitation that has led meetings on intellectual property developments several French courts to develop a new test, or contain confirmations that originality is required more precisely to elevate the classical test to a for copyright protection. higher level of abstraction, by answering the For instance, in so far as the Berne Convention following question: what is it that an author does is concerned, the expression “work” is generally to show her personality through a work? considered to be synonymous with “intellectual creation” which should contain “an original The fairly unanimous answer given by French structure of ideas and impressions”. Thus, the courts is that creative choices make the Committee of Experts of WIPO on the difference. In a case involving a bilingual Convention has noted that originality was “an

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KIU Journal of Social Sciences integral part of the concept of work”. According to the committee, intellectual creations are The rule implies that actual value in a work lies evidently an element of the notion of works. in its medium of expression. Thus, the actual value of documented traditional knowledge lies Furthermore, the Berne convention provides in its documentation rather than its content or some important hints as to what constitutes an substance. This rule is applied to confer original work in relation to collection of commercial monopolies on compilers or authors information. It states that “collections of literary of works containing information based on or artistic works such as encyclopaedias and traditional knowledge. This principle has been anthologies which, by reason of the selection pursued by many criticisms but the most and arrangement of their contents, constitute relevant to the protection of traditional intellectual creations shall be protected as such, knowledge is that the protection of the form without prejudice to the copyright in each of the seems enmeshed with the content. The works forming part of such collections”. commercial value of works nowadays lay in their content or ideas and information contained 4.7 The Role of Originality in the Protection in them rather than in their forms. For instance, of Traditional Knowledge the interests of book buyers relates largely to content and hardly to form. The common interpretation of originality” in common law countries including Nigeria Recent global recognition of the commercial presents as work that involves labour and skill value of traditional knowledge has attracted presents some problems as far as protection of researchers with a view to copyright the traditional knowledge is concerned. First, recording and documentation of the traditional despite that the threshold of originality is far too knowledge. This development has however, low, traditional knowledge fails to meet it drawn strong objections from some groups of because it is not independently created. Second, traditional knowledge holders. An example of the low threshold of originality makes traditional such objections was the concern expressed by knowledge easily amenable to wrongful the representative of the TupajAmaru of Peru at copyright exploitation, since protection would the fifth (5th) session of the Intergovernmental be available to every compiler of traditional Committee of the World IP Organisation on the knowledge-based information on ground that the Protection of Genetic Resources, TK and person has collected, fixed and arranged same in Traditional Expression and Folklore. A part of a definite medium. This makes the nonsense of the concerns reads: the originality requirement, while placing To document and place TK in the emphasis on the requirement for fixation. A would signify violating the confidential cursory examination of the essence of the character of many of the intangible, sacred and requirement for fixation further exacerbates secret elements which belong to the living traditional knowledge concerns in relation to patrimony which was transmitted from copyright. generation to generation, and which constituted the memory of their ancestors. Placing 4.8 Fixation in Tangible Medium indigenous knowledge in the public domain As regards the requirement for fixation, common would accentuate the deterioration of the law recognises a dichotomy between an idea and cultural values and elicit appropriation of their its expression. This provides the basis for the cultural values by trans-national corporations rule that copyright protects the expression of an and consequently the destruction of the idea but not the idea itself. An idea is a mere indigenous identity. abstraction and it lacks recognition under copyright law. However, when such an idea is Traditional knowledge information can be found transformed into a tangible form by its nowadays in such media as books, electronic expression in a definite medium it gains databases, films, audio tape and others compiled copyright protection. by book writers, researchers, anthropologists,

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KIU Journal of Social Sciences ethno-botanists, government officials and film of labour and skill is lurked with some producers without the consent of traditional opportunities for negative protection of knowledge owners. This arrangement generally traditional knowledge. If traditional knowledge excludes traditional knowledge holders from the holders are not able to obtain positive copyright management and dissemination of the by which they can refuse to grant licence to documented traditional knowledge now largely prospective compilers of their traditional stored in archives, museums and other academic knowledge, at least copyright should protect or cultural institutions. Furthermore, the such knowledge from wrongful exploitation. By arrangement has generally been construed (albeit reading creativity into the meaning of erroneously) as consigning traditional originality, this goal can be achieved. knowledge to the public domain. 4.9 Negative Protection Through Originality Also, it is possible to construe the requirement The notion of originality under the civil law for fixation of traditional knowledge as system considered along the contemporary providing legitimacy for the commercialisation international practice, including the recent US of sacred traditional knowledge without regard decision in Feist case, is instructive regarding to their holders‟ feelings and sensibilities. the volume of pretentious works which would be However, as shown by the Australian case of denied copyright protection to the benefit of Foster v. Mountford, there is a growing judicial actual owners of ideas behind the works. The sensitivity to commercialization of sacred TK notion of creativity seems inextricably linked to without the consent of the knowledge holders. human mind, it is not a mere question of In that case, it was held that the sale of a book functional choice but that which comes from the containing sacred information about a tribe author‟s mind. This approach is capable of constituted a breach of confidence. The book recognising the emotional connection between contains information which had been disclosed traditional knowledge and its customary holders, to an anthropologist by some members of the while similarly helping to discourage predators tribe and was of deep cultural and religious from making sacred or secret traditional significance to the tribe. knowledge public.

In the light of the problems associated with the 5. Conclusion interface between copyright principles and traditional knowledge, some have argued that This article began by illustrating the value of copyright is not a suitable regime for the providing an effective protection for intangible protection of traditional knowledge. As an items such as information, the class to which attempt to correct the problems, the Nigerian traditional knowledge belongs. In examining the Copyright Act of 1988 introduced a regime for nature of traditional knowledge, the paper points the protection of folkloric expressions. But it is out some of its inherent features which doubtful whether the regime is helpful in constitute copyright and traditional knowledge protecting traditional knowledge because its as strange bed fellows. However, with an open provisions have been called to question approach to protection the possibility of negative regarding the issues as to who will exercise protection of traditional knowledge by copyright ownership rights and the conditions for members is recognized, particularly as this does not of traditional knowledge community to use and involve a need to comply with any conditions. develop their resources. The opportunity for negative copyright Thus, the challenges presented by the quest to protection of traditional knowledge is borne out provide positive copyright protection for of the emerging regime of judicial interpretation traditional knowledge are not just very difficult, and diplomatic or international conception of the but almost impossible to resolve. However, the term originality in relation to copyright emerging interpretation of originality by which materials. Whereas, the application of low threshold is raised higher beyond mere expenses threshold in the interpretation of originality has

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KIU Journal of Social Sciences rendered traditional knowledge vulnerable to Graham Dutfield, “Legal and Economic Aspects of wrongful exploitation for copyright goal, a high Traditional Knowledge,” at page 496-498. degree of originality used by civil law courts and Federal Republic of Nigeria, Copyright Act, Cap. recently some common law courts to ensure that C.28, Section 1, The Revised Edition (Laws works for copyright protection are creative of the Federation of Nigeria) Act, 2004. John Adams, “Originality in Copyright: A Solution to production by the authors. Thus, there is a useful the Database Problem?” in Copyright Law A opportunity for the courts to “strike down” mere Handbook of Contemporary Research, compilation or collection of traditional edited by Paul Torremans, (Edward Elgar, knowledge as works lacking originality and UK: 2007): 1-27. unqualified for copyright protection. In that way, Gervais, D., “Feist Goes Global: A Comparative traditional knowledge has been protected in the Analysis of the Notion of Originality in negative sense. Copyright Law,” Journal of Copyright Society of the USA 49(Summer 2002) 949 - 981, available online at http:??ssrn.com/abstract=733603 References Sterling, J. A. L., World Copyright Law, (London: Sweet & Maxwell, 2003), 293. Thomas Jefferson (letter to Isaac McPherson), quoted Justin Hughes, “The personality Interest of Artists in THE FOUNDERS’ CONSTITUTION, vol. and Inventors in Intellectual Property,” 3 art. 1 s. 8, cl. 8, Doc. 12 (Phillip Kurland Cardozo Arts & Entertainment Law Journal, & William R. Kenan eds.), at http://press- (1998): 223. pubs.uchicago.edu/founders/documents/a1_ CA Paris, 4e ch., Mar. 21, 1989: 142 RIDA 333, 338- 8_8s12.html, (retrieved on November,24th, 39 (“Harrap‟s” case) 2012). Daniel J. Gervais, “Feist Goes Global: A Graham Dutfield, “Protecting Traditional Comparative Analysis of the Notion of Knowledge: Pathways to the Future,” Originality in Copyright Law,” Journal of ICSTD Programme on IPRs and Sustainable the Copyright Society of the U.S.A.; 49 Development, Issue paper No. 16, June (Summer, 2002): 949-981. 2006. Directive 2006/116/EC of the European Parliament Jerome H. Reichman and Tracy Lewis, “Using and of the Council of 12 December 2006 on Liability Rules to Stimulate Local the term of copyright and certain related Innovation in Developing Countries: rights, article 6. Application to Traditional knowledge,” in Directive 2009/24/EC of the European Parliament INTERNATIONAL PUBLIC GOODS AND and of the Council on the legal protection of TRANSFER OF TECHNOLOGY UNDER A computer programs. GLOBALIZED INTELLECTUAL TayPek San, “Protecting Works of Intellectual PROPERTY REGIME, edited by Keith E. Creativity of Indigenous People: A Maskus and Jerome H. Reichman, (United Copyright Perspective,” in Indigenous Kingdom: Cambridge Univerity Press, People’s Knowledge Systems and Protecting 2005), pp337-366. Biodiversity, edited by Gurdial Singh Graham Dutfield, “Legal and Economic Aspects of Nijar&Azmi Sharon (Advanced Professional Traditional Knowledge,” in International Courses, Kuala Lumpur: 2004), 173-205. Public Goods and Transfer of Technology Edward Samuel, “The Idea-Expression Dichotomy in under a Globalised Intellectual Property Copyright Law” Tenn. L. Rev., vol. 56 Regime, edited by Keith E. Maskus& (1989), 321. Jerome H. Reichmam,(Cambridge Terri Janke,Our Culture Our Future: The Report of University Press, New York: 2005) 493 - Australian Indigenous Cultural and 520 Intellectual Property (New South Wales: Krishna Ravi Srinivas, “Traditional Knowledge and 1998), 27. Intellectual Property Rights: A Note of Christopher Geiger; “The Privatisation of Issues, Some Solutions and Some Information by Copyright Law: What Are Suggestions,” AJWH, available online at the Remedies?” Intellectual Property and http://ssrn.com/so13/papers.cfm?visited on Market Power: ATRIP PAPERS (2006- 16th April, 2009. 2007), 567, 569.

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Copyright Law,” Journal of Copyright Society of the USA 49(Summer 2002) 949 - 981, available online at http:??ssrn.com/abstract=733603

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