— 13 —
digital/electronic form must also be a physical material object at
the same time.”6
(b)
“... a copy in digital/electronic form can only be made by storing
its contents in a physical digital/electronic medium … As such, a
copy in digital/electronic form is necessarily a physical material
object.”7
(c)
“... ‘distribution of copies’ is only meant for acts involving the
physical transfer of material objects. If contents are transmitted
without such physical transfer, the act will not be ‘distribution of
copies’, and it can only be infringing because of other
provisions...”8
39.
This is an ingenious argument which was advanced with ability
and enterprise by Mr Pun. It must, however, be rejected. I agree of course that
an electronic copy must exist in some physical medium or environment and not
in a vacuum. But as the evidence established and as everyday experience
indicates, electronic data constituting a digital copy of a work can plainly be
transmitted via the medium of the network of computers and cables making up
the internet. Electronic copies can thus plainly be transmitted without first
being stored in a tangible article such as a CD or DVD to be physically handed
over to a recipient.
40.
The point may be illustrated by two commonplace examples:
(a)
An academic publishes a book review which he has written on his
computer and stored on his hard disk as an electronic document
6
Supp Case §3.
7
Supp Case §5.
8
Supp Case §20.
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