— 11 —
“‘electronic’ means actuated by electric, magnetic, electro-magnetic, electrochemical or electro-mechanical energy, and ‘in electronic form’ means in a form
usable only by electronic means...”
E.2
34.
“Electronic copies”
As noted above, Mr Pun accepts that under the Ordinance, a
“copy” of a work may exist in electronic or digital form. That is plainly
correct. Section 24(4) expressly refers to issuing copies of a work in electronic
form.
It is, moreover, important to distinguish between the electronic copy
itself and the physical medium in which it resides. Thus, section 23(2) refers to
storing a work “in any medium by electronic means” as an instance of copying.
The resultant reproduction of the work, ie, the copy, is “in electronic form”
consisting of a specific combination of digital data which is “usable only by
electronic means”. The physical storage article is therefore conceptually and
physically different from the electronic copy it contains. Obviously, if a further
reproduction of the work were to be made from that electronic copy, the
resultant copy would constitute a further electronic copy.
35.
In the present case, when the appellant electronically copied a film
from the VCD and stored the copy made on his computer’s hard disk, he was
“reproducing the work in [a] material form” as provided by section 23(2). The
copy was an infringing copy since its making was an infringement of the
copyright in the film, as stipulated by section 35(2). Each copy was also a copy
in electronic form as it was only usable by electronic means. If it were to be
further reproduced, the resultant electronic copies would also be infringing
copies of the protected work.
36.
Mr Pun accepts that the appellant incurred civil liability not only
for making the infringing copies on his hard disk, but also for making them
available to the public contrary to section 26. However, the Ordinance does not
create any criminal offence based simply on “making available” infringing
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