Category Archives: News

Making In-Copyright Works Open Access:
A Report From Iceland

Posted November 15, 2017
Typewriter with Icelandic keyboard

Photo by Rob McKaughan | CC BY-NC-SA

The island nation of Iceland—about the size of Virginia, and with a population of around 300,000—might be one of the smallest in the world, but it enjoys a robust influence on literature and culture that’s out of all proportion with its size. Thanks to a long tradition of universal literacy, a booming publishing industry, and an enthusiastic reading public, Iceland is home to a great many authors, some of whom are eager to make their books available online.

To help address this need, Professor Ian Watson of the Norwegian University of Science and Technology undertook a project to help some of these authors release their out-of-print books online under Creative Commons licenses. His article, “Assisting Living Authors in Opening Access to Their In-Copyright Works: A Report From Iceland,” details his experience with author-by-author rights clearance. Watson worked with authors to digitize their books (if they were not already part of Google Books) and ensure that their permissions status in HathiTrust was fully open. Watson’s results were successful overall, with 31 of 36 authors responding favorably to the idea of opening their works. Ultimately, 28  works were made newly available online. (The difficulties that did arise were most often bureaucratic or technological, rather than the result of unwillingness by authors or publishers to cooperate.)

Head shot of Ian Watson

Authors Alliance: You are a longtime advocate for open access, as well as the former editor of an OA journal [Bifröst Journal of Social Science]. How did you first become interested in OA?  What do you see as its main benefits?

Ian Watson: I got interested in open access in 2008, originally because I saw that it was the best way to publish written work by scholars at the university in Iceland where I was working. The university wanted to start a journal to help its employees get their research published. If we had held their work back and given it out only to those willing to pay for a paper copy, very few people would have ever read what they wrote, and administering payments and subscriptions would have taken hours of work. I offered to set up an open-access website for the journal using OJS, in addition to printing a few paper copies. This appealed to our open-minded rector. Later on, I also realized that open access was the right approach for many books and monographs in Iceland.

AuAll: How do you view the current state of OA? What changes have you observed over the years? What would you like to see in the future of OA publishing?

IW: Open access is well accepted and supported these days, and that’s wonderful. Still, too much new scholarship is being published behind toll barriers. Too many books and papers are still published in the old guard of high-prestige, toll-access presses and journals.

The rise of sites like SciHub that circumvent the existing legal framework signal that the market for scholarly journal articles is not yet in equilibrium; in the long run, I think it will just be very hard to sustain charging high prices for things that have a zero marginal cost. Just as users have long used public and university libraries for free, I think it’s inevitable that digital libraries will tend towards being free too.

It’s tremendously important to get the word out to authors that they can change the rights status of their work. At the same time, open-access advocates should be comfortable with the fact that there are many books that are still written to be sold and to make money, and that’s OK.

AuAll: You found that the majority of the authors that you contacted wanted to open up access to their works.  Why do you think these authors were enthusiastic about making their works newly available online?

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The “Sonny Bono Memorial Collection” and U.S. Copyright Terms

Posted November 7, 2017
Page spread from The Dictionary of American Slang

A Dictionary of American Slang, 1926 – One of the books in the Internet Archive’s new Sonny Bono Memorial Collection

Last month, the Internet Archive announced the launch of the “Sonny Bono Memorial Collection” — a set of digitized full-text books published in the U.S. between 1923 and 1941. The collection takes advantage of an obscure section of U.S. copyright law, section 108(h), which allows libraries and archives to reproduce, distribute, and display books that are in the last twenty years of copyright, provided that the work is neither obtainable at a reasonable price nor being commercially exploited.

The provision was included in the 1998 Copyright Term Extension Act (CTEA), which extended U.S. copyright terms for works by individual authors by twenty years.  CTEA resulted in a twenty year delay in some works entering the public domain: Works that were protected by copyright at the time the CTEA passed will not enter the public domain until 2019 or later. (The legislation is also known as the Sonny Bono Act because of Bono’s support of longer copyright terms during his tenure in the House of Representatives.)

The term extension had the effect of locking away countless works that would have been eligible to enter the public domain just as the promise of digitization and online access was beginning to emerge. Section 108(h) was added as a safety-valve to help ensure that the extended copyright term did not restrict public access to commercially unavailable works, providing a limitation on copyright that allows libraries and archives to rescue these works and make them available for research, scholarship, and preservation.

While section 108(h) allows for a step in the right direction, it’s not a cure-all. Determining a work’s eligibility is time-consuming and labor-intensive, and there are a number of variables to consider. But thanks to automation, the Internet Archive plans to add thousands of volumes to the collection. Professor Elizabeth Townsend Gard’s new paper gives libraries and archives guidance on how to implement section 108(h).

If your books are not eligible for inclusion in 108(h) collections, but you would like to see them freely available online, Authors Alliance can help.  Our rights reversion and termination of transfer resources provide strategies you can use to regain your rights in order to make them newly available. And together with Internet Archive, Authors Alliance can even help you to scan previously undigitized works to add them to our online collection just ask!

We hope that the Internet Archive’s leadership in implementing 108(h) inspires other libraries to create more “Last Twenty” collections and gives a second life to previously unavailable books.

Policy Update: DMCA Exemptions and Advocacy

Posted November 2, 2017

Since our founding, Authors Alliance has been tracking developments around Section 1201 of the Digital Millennium Copyright Act (DMCA). Every three years, the Copyright Office can adopt temporary exemptions to Section 1201’s prohibition against circumvention of technological measures that control access to copyrighted works. In 2016, we advocated for a streamlined, less burdensome rulemaking process in order to protect the fair uses of copyrighted works. And in August, we petitioned to renew an exemption that allows for the use of film clips in multimedia ebooks.

Beginning with this rulemaking, the Office did adopt a streamlined procedure for renewing exemptions granted during previous rulemaking sessions, with the goal of making the triennial process more efficient and less repetitious. We are pleased to report that the Copyright Office announced last week that it is recommending the renewal of all the exemptions granted in the previous rulemaking session of 2015—welcome news for authors, critics, scholars, and all who support fair uses of copyrighted content.

We applaud the Copyright Office adopting common-sense improvements to encourage a smoother path for renewals and for recommending the re-adoption of all existing exemptions.

Our work on this issue is ongoing. In September, we filed a new petition, which requests the following:

  • Lawful circumvention of DRM for use in fiction multimedia e-books (the current exemption is restricted to nonfiction multimedia e-books);
  • Allowing circumvention of DRM for use in multimedia e-books on other subjects besides film analysis (the current exemption allows for uses in film analysis only); and
  • Removing limitations that refer to screen-capture technology.

In December, Authors Alliance—with legal assistance from the UC Irvine and the University of Colorado, Boulder and joined by other like-minded organizations—will submit a new round of comments in support of these additional exemptions to the Register of Copyrights as part of the seventh annual triennial rulemaking process for 2018, with the goal of building on the success of our previous efforts. We will continue to track this issue closely, and will provide updates on our comments and the eventual response from the Copyright Office, expected in the spring of 2018.

Who Owns the Termination of Transfer Right?

Posted November 1, 2017

We would like to thank R. Anthony Reese, Chancellor’s Professor of Law at UC Irvine, for contributing the following post.

Head shot of R. Anthony ReeseU.S. copyright law gives an author the right, under certain conditions, to terminate a copyright transfer or license that the author granted decades earlier, as Lydia Loren’s earlier post explained. This termination right must be exercised within a specific time, and the formal termination process can’t begin until 25 years after the author executes the grant.

Given this long delay, who can terminate if the author dies before the time for termination arrives? The basic answer is fairly straightforward. If the deceased author left only a surviving spouse (whom the statute names as the author’s “widow or widower”), then the spouse can exercise the termination right. If the deceased author left only surviving kids, then the kids can exercise the termination right. If the author left a surviving spouse and kids, then the spouse and kids share the termination right. (Other situations are more complicated: if the author left any surviving grandkids of a deceased child, those grandkids get to share in the termination right as well.) Only if the author left no surviving spouse, kids, or grandkids does the author’s will (or the law of intestate succession) determine who owns the termination right.

This aspect of termination has always created problems for gay and lesbian authors with same-sex partners. Because the termination right belongs to a deceased author’s “widow or widower,” copyright law must determine who qualifies as the author’s spouse. In doing so, copyright law has treated gay and lesbian authors with same-sex partners less favorably than authors with different-sex partners ever since the copyright act first allowed termination in 1978.

The statute defines an author’s “widow” or “widower,” using facially neutral language, as “the author’s surviving spouse under the law of the author’s domicile at the time of his or her death.” 17 U.S.C. § 101. This definition doesn’t expressly distinguish between same-sex and different-sex spouses. In practice, though, in deciding which marriages copyright law will recognize, this definition has always treated authors with same-sex partners unequally, because it incorporates unequal treatment embedded in state law, in federal non-copyright law, and in foreign law.

An author’s widow or widower for copyright termination purposes is the author’s surviving spouse under the law of the deceased author’s domicile. In the U.S., the author’s place of domicile is generally the state where the author resides. But from 1978 until 2004, no U.S. state allowed same-sex couples to marry. As a result, no same-sex partner of a gay or lesbian author could qualify as a widow or widower entitled to termination rights. (Indeed, before 1998, an author whose partner did not qualify as a surviving spouse could not even designate that partner in the author’s will as the person who could exercise the termination right.)

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Grappling With The Most Notoriously Complex Provision in U.S. Copyright Law

Posted October 26, 2017

Erica Row, Julia Wu, Pam Samuelson, Mike Wolfe, Eric Malmgren, and Jack Lerner

The following guest post was written by Julia Wu and Eric Malmgren, students at the Intellectual Property, Arts, and Technology Clinic at UC Irvine Law. We’re grateful to the clinic students and to their director, Jack Lerner, for all their work in reviewing the Termination of Transfer tool.

The law on termination of copyright transfers is complicated—really complicated. As members of the research team tasked with “vetting” the Authors Alliance/Creative Commons Termination of Transfer Tool, we became acutely aware of just how intricate, technical, and downright maddening this area of law can be.

In 2016, Authors Alliance approached the UCI Intellectual Property, Arts, and Technology Clinic for help launching the Termination of Transfer Tool (“ToT Tool”), an online resource to educate authors about termination of transfers and roughly estimate whether a work is eligible for a termination. They wanted to ensure that the ToT Tool correctly applied the law to estimate copyright duration and the timeframes during which a termination of transfer could be executed.

It’s a cliché, but in this case it fits perfectly: we were thrown into the deep end of the pool, and we had to learn quickly how to swim. Together with fellow clinic member Erica Row, Professor Jack Lerner, and our friends at the Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, we immersed ourselves in §§ 203 and 304 of the Copyright Act, relevant case law, and treatises such as Nimmer on Copyright.

After extensive research, our team met to map out the logical steps needed to determine whether a given work would likely be eligible for a termination of transfer.  Our goal was to create a set of binary (yes-no) questions and simple equations that would reliably predict whether a termination right likely existed and when it could be exercised. UCI law students standing next to an outline of the ToT toolSeveral of these questions were derived from the Copyright Act, such as whether the copyright was assigned through a last will and testament. If so, it cannot be terminated.  Others depended on factors found in important court decisions, such as CCNV v. Reid, which provided guidance as to whether a given work is a “work made for hire” and thus ineligible for termination. Our “map” of termination law became a flowchart the length of a large UCI Law classroom.

The most basic analysis of whether a transferred copyrighted work is eligible for termination requires four main dates: the date of the work’s creation, the date of the work’s publication (if applicable), the date of copyright registration (if applicable), and the date of the transfer or assignment. There are ninety-three years between the relevant years of 1923 and 2016. Multiplying ninety-three by itself four times (i.e., 934) results in 74,805,201 possible combinations of those four dates.  In light of the millions of possibilities, a flowchart on a whiteboard—no matter how big—would not allow us to evaluate enough scenarios to verify that the ToT Tool accurately analyzed transfer eligibility, so we developed a spreadsheet that mirrored the ToT Tool’s functionality and could be used as an independent verification method—essentially, a parallel tool. As we discovered new and sometimes minor nuances of the termination provisions, we devised ways to address them within the spreadsheet. Over time, our spreadsheet grew more and more intricate.

We found that rather than attempt to review all 75+ million date combinations, we could focus on dates that corresponded to important changes in U.S. copyright law, like January 1, 1978, the date the 1976 Copyright Act went into effect. With these significant dates in mind, we created a list of date combinations that would likely reveal whether the ToT Tool and our spreadsheet correctly addressed the nuances of the termination provisions.

Our work culminated in an afternoon in which we trained fourteen other students in the UCI IPAT Clinic on the use of the Authors Alliance/Creative Commons ToT Tool, and gave each one a list of date combinations to enter into both the Tool and our spreadsheet. Members of the IPAT Clinic processed hundreds of the highest-priority date combinations that we could identify. We gathered the results and analyzed any discrepancies to determine whether the ToT Tool or our spreadsheet accurately predicted the correct outcome. We also met and talked numerous times with Authors Alliance’s then-Executive Director Mike Wolfe, and Professor Pamela Samuelson.

Termination of copyright transfers is a complex and sometimes unsettled area of the law. For the first time ever, the Authors Alliance/Creative Commons Termination of Transfer Tool makes what has been an arcane and inscrutable area of the law accessible to everyone.  We are incredibly proud to have contributed to this effort.

Use the Termination of Transfer Tool, read the materials, and if you think you may have a work eligible for a termination of transfer, speak with an attorney who can help you get your rights back.


Eric Malmgren and Julia Wu are J.D. Candidates at the University of California, Irvine School of Law. During the 2016-2017 academic year, they were Certified Law Students in the UCI Intellectual Property, Arts, and Technology Clinic. 

Spotlight on Open Access & Innovative Academic Publishing Models

Posted October 25, 2017

Just in time for the start of the new academic year, Authors Alliance featured a series of Q&As with our members on the topic of open access and innovative academic publishing models. In celebration of Open Access Week, we’ve collected what these authors had to say about the benefits of making their works openly accessible.

 

Eric von Hippel (MIT) on the benefits of making his books, Free Innovation, The Sources of Innovation, and Democratizing Innovation, openly accessible:

“The increase in readership I have experienced by going OA is really worth it to me—it makes me very happy. Evidence to date is that about 10 times more eBooks are downloaded than print copies are sold, so I guesstimate that I am reaching about 10 times more people with the ideas I find exciting than I could have done in the pre-OA era.”

“It especially makes me happy that now teachers can assign even a single chapter of one of my books in a class in a developing country if they wish, without worrying about burdening students with any purchase costs.”

 

Read the full interview with Professor von Hippel here.

 

James Boyle and Jennifer Jenkins (Duke) on the benefits of openly publishing their law school casebook, Intellectual Property: Law & the Information Society – Cases & Materials:

“…[T]he benefits of openness come out in other surprising ways. For example, visually impaired students have told us they really appreciate an open electronic text that can be customized using their favorite programs—to produce a machine-generated audiobook, for example, in whatever format they choose.

“[I]t is striking how much tangible benefit in terms of citation, influence, and so on that [making our book openly accessible] has yielded. When it comes to open access to scholarship, doing good can be very compatible with doing well.”

 

Read the full interview with Professors Boyle and Jenkins here.

 

Barton Beebe (NYU) on the benefits of publishing Trademark Law: An Open Source Casebook as an open access work:

“I sort of love that so many students are using my book and that they didn’t have to pay for it. That’s worth more to me than whatever royalties I would get through the for-profit model.”

“I think the main result of using the open access model is that a lot more people have used the book and so maybe it has had more influence than it otherwise might have.”

 

Read the full interview with Professor Beebe here.

 

For more information about open access, including our guidebook and more success stories, check out our Open Access resource page.

ICYMI: Books on Open Access & Copyright Featuring
Authors Alliance Members

Posted October 24, 2017

Here at Authors Alliance, we like to keep up our copyright chops all year ’round, and we know that many of our readers do, too. In honor of Open Access Week, we’re re-posting this list, originally shared over the summer, of new books featuring Authors Alliance members. Best of all, three of the four titles are openly accessible and available to read in full online!

Screen-Shot-2017-06-13-at-11.29.05-AMFirst up is Creativity without Law: Challenging the Assumptions of Intellectual Property,  edited by Kate Darling and Aaron Perzanowski, and published by NYU Press. This collection features essays about diverse creative communities by a number of noted IP scholars (and Authors Alliance members!), including David Fagundes, Aaron Perzanowski, Christopher Sprigman, Katherine Strandburg, Rebecca Tushnet, and Eric Von Hippel.

The book demonstrates how creative endeavors, from cinema and fanfic to fine cuisine and roller derby, push the boundaries and assumptions of intellectual property through community norms and self-regulation. As Perzanowski and Darling write in their introduction, “While IP is a crucial tool for maintaining creative incentives in some industries, scholars of creativity already understand that the assumptions underlying the IP system largely ignore the range of powerful non-economic motivations that compel creative efforts. From painters to open source developers, many artists and inventors are moved to create, not by the hope for monetary return, but by innate urges that are often quite resistant to financial considerations.”

In a similar vein is Made by Creative ComMade With Creative Commons - Covermons, by Paul Stacey and Sarah Hinchliff Pearson. It’s a collection of real-life examples that highlights the advantages of using CC licenses, both for sharing work and for building a sustainable business model. Case studies include everything from the party game Cards Against Humanity to the Public Library of Science (PLoS) to the Rijksmuseum in Amsterdam.

“Part analysis, part handbook, part collection of case studies, we see Made With Creative Commons as a guide to sharing your knowledge and creativity with the world, and sustaining your operation while you do. It makes the case that sharing is good for business, especially for companies, organizations, and creators who care about more than just the bottom line. Full of practical advice and inspiring stories, Made with Creative Commons is a book that will show you what it really means to share.”

The book is available as a free download (under a CC license, of course!), and may also be purchased in a print edition.

9781760460808-b-thumb-copyright Out in paperback from Australian National University Press is What if We Could Reimagine Copyright?, a collection of essays by international scholars about the possibilities of copyright, edited by Authors Alliance members Rebecca Giblin and Kimberlee Weatherall. Like Creative Commons, ANU Press offers the book as a free download, as well as in print.

“What if we could start with a blank slate, and write ourselves a brand new copyright system? What if we could design a law, from scratch, unconstrained by existing treaty obligations, business models and questions of political feasibility? Would we opt for radical overhaul, or would we keep our current fundamentals? Which parts of the system would we jettison? Which would we keep? In short, what might a copyright system designed to further the public interest in the current legal and sociological environment actually look like? Taking this thought experiment as their starting point, the leading international thinkers represented in this collection reconsider copyright’s fundamental questions: the subject matter that should be protected, the ideal scope and duration of those rights, and how it should be enforced.”

Free Innovation - CoverFinally, we recommend Free Innovation by Eric Von Hippel, available in full as an open access title from MIT Press.

“Free innovation has both advantages and drawbacks. Because free innovators are self-rewarded by such factors as personal utility, learning, and fun, they often pioneer new areas before producers see commercial potential. At the same time, because they give away their innovations, free innovators generally have very little incentive to invest in diffusing what they create, which reduces the social value of their efforts.

The best solution, von Hippel and his colleagues argue, is a division of labor between free innovators and producers, enabling each to do what they do best. The result will be both increased producer profits and increased social welfare—a gain for all.”

 

Authors Alliance Teams Up With UC Berkeley for Open Access Week

Posted October 23, 2017

cover of Understanding Open Access guide

This Open Access Week, Authors Alliance is partnering with the UC Berkeley Library for a panel on dissertation publishing and impact, to be held on Tuesday, October 24. (To attend, please register here.) Earlier this year, the UC Berkeley Library published two posts that highlight the challenges of open access publishing—and what can be done to address those obstacles.

Jeffrey MacKie-Mason, Berkeley’s University Librarian (and an Authors Alliance board member), is also a professor of economics. His statement about the economics of scholarly publishing discusses the scholarly publishing landscape in the context of unsustainable licensing fees that place an ever-increasing burden on libraries. Publishers’ profits are soaring while library budgets are being slashed.

But there is support for open access (“OA”) publishing, and new funding models provide badly needed financial support for authors who wish to publish their works openly. Berkeley’s Scholarly Communication Officer, Rachael Samberg, explains the Berkeley Research Impact Initiative (BRII) program, which offers subsidies to authors wishing to publish open access— not only journal articles, but monographs as well.

Our Guide to Understanding Open Access provides an overview of when, why, and how to make works openly available, and is just one of the many resources featured on our website. The guide is available to download (open access, of course!) and may also be purchased from our store.

The full slate of campus OA Week events can be found here. And check out Berkeley’s Scholarly Communication Services page for an excellent introduction to a wealth of topics on copyright, open access, and more.

The Termination Right and Authors’ Human Rights

Posted October 18, 2017

We are delighted to feature the following guest post by Professor Graeme Austin of Victoria University of Wellington (NZ) and Melbourne University (Australia).

Headshot of Graeme AustinIf people think of “international copyright law” at all, they probably think of the IP chapters in international trade agreements.  These agreements are mostly about economic links between groups of countries. Protecting copyrights, along with other kinds of IP, is the quid pro quo for access to commodity markets and markets for services.  The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) brought copyright squarely into the world trade regime with the requirement that World Trade Organization members must protect copyrights up to certain minimum standards.

But there’s a whole other side to the rights of authors that many people don’t know about: international human rights law.  In 1948, the Universal Declaration of Human Rights (UDHR) announced: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” A similar guarantee appears in the American Declaration on the Rights and Duties of Man (1948). Authors’ rights are also included in the International Covenant on Economic, Social and Cultural Rights, which came into force in 1976.  “Material interests” means financial support: the ability to earn an income from creative work.  “Moral interests” spring from the emotional and spiritual connections between creators and their works. They can be given force through legal prohibitions against subjecting works to certain kinds of derogatory treatment or prohibitions against failing to name the author of a work when it is released to the public.

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Why is an Author Able to Terminate a Transfer of Copyright?

Posted October 17, 2017

We are grateful to Professor Lydia Pallas Loren of Lewis & Clark School of Law for contributing the following guest post.

Headshot of Lydia LorenThe U.S. Copyright Act is clear: Authors have a right to terminate a transfer of their copyrights 35 years after they have signed on the dotted line.* That right to terminate cannot be waived, nor is there any way to “contract around” it. It does not matter if the contract purports to assign the copyright for “the entire term of copyright” or “in perpetuity” or if the contract prohibits any attempts at termination. Why did Congress include this significant, unwaivable right in its comprehensive revision of the Copyright Act?

Some assert that the reason for the termination rights is paternalistic—it seeks to protect authors who, in general, lack business acumen. By providing authors with an ability to recapture their copyrights, the law gives authors, who need government protection, a second bite of the apple. But, if authors on a whole lack business acumen, what makes us think the author would be any better at obtaining a deal on more favorable terms 35 years later?

In fact, the evidence points in another direction to explain Congress’ decision. Congress recognized that often transfers of copyright are entered into before the authors have solid information from which to assess the value of the copyrighted work. This puts the author in what Congress called an “unequal bargaining position.” After 35 years has passed, they should have more information about the work’s value, and that would be an appropriate time to allow the author to enter into a new bargain, based on a better assessment of the value of the work. In other words, Congress viewed the termination right as a way for authors to obtain compensation at a level that more accurately reflects the true value of their works.

For the author who sold their copyright for a pittance and the work turned out to be a blockbuster, termination can play out the way Congress thought it might. But the termination right is not just about money. For an author who thinks her publisher has not done enough to market the book and that explains its lackluster sales, terminating that transfer allows the author to seek out a new publisher. For the author whose work has failed to gain a commercially viable audience, but whose work has noncommercial value, such as for research, terminating the transfer allows the author to seek out a new “home” for that copyrighted work. Once the copyright has been recaptured by the author, that new home might be with a new publisher, or it might in the public domain (through a dedication to the public), or on an open access platform.

Armed with the information gained about the appeal of the work over the 35 year period in which the copyright was owned by someone else, Congress provided the author with a way to renegotiate the deal. And that is precisely what Congress intended when it created the termination right.


* Note that the timing of the termination right can vary depending on the circumstances and the date of the contract—see the Authors Alliance/Creative Commons Termination of Transfer tool for more information.

Lydia Pallas Loren is Henry J. Casey Professor of Law at Lewis & Clark Law School in Portland, Oregon. Professor Loren is the author of Renegotiating the Copyright Deal in the Shadow of the ‘Inalienable’ Right to Terminate.