— 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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