— 16 —
recipient on the internet, programmed to delete itself after a stated period.10 In
other words, there is no factual imperative for dealings with, and in particular
distribution of, electronic copies to be confined to the physical transfer of
storage devices.
45.
There is also no legal reason to confine distribution of copies to
cases involving delivery by physical means. “Distribution” is not defined in
the Ordinance and should be given its ordinary meaning. In the present case,
the evidence showed that upon being accessed by downloaders seeking to
obtain a copy of the relevant film, the appellant’s computer reproduced the
infringing electronic copy (which remained on his hard disk) in the form of
packets of digital information which were sent to the downloaders and
reassembled by their computers in the correct sequence to constitute an entire
infringing copy of that film. In my view, that process in aggregate is aptly
described as involving the appellant’s creation of infringing electronic copies
(transient or otherwise) of the film and their distribution directly or indirectly to
each member of each swarm.
46.
Section 26 strongly supports the view that electronic copies may
be distributed via the internet. It concerns “making available” copies of works
and expressly recognizes “the making available of copies of works through the
service commonly known as the INTERNET.”
It is true that section 26
concerns “making available” and not “distribution”. But that does not matter
for the purposes of the present argument. The section addresses the making
available of copies “through” the internet.
It therefore unambiguously
recognizes that an electronic copy can be transmitted through the internet and
10
Section 25 defines “rental” as “making a copy of the work available for use, on terms
that it will or may be returned, for direct or indirect economic or commercial
advantage”. It therefore contemplates temporary use without necessarily having to
return the copy made available, which (without deciding the point) would appear to
cover the postulated form of dealing.
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