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Planning Ahead Best For Secure Digital Legacy

Planning Ahead Best For Secure Digital Legacy

 

I ticked off another item on my bucket list the other day by making my radio debut. I took part in a programme on Radio Scotland on the importance of planning for the future, making a will and ensuring that you know how your assets will be distributed following death. Not the cheeriest subject, but an important one nonetheless. As an intellectual property lawyer, my contribution was to discuss what happens to your digital data when you pass away. The answer might not be the one you were expecting.
There is a distinction that needs to be made between Digital Content (e.g. the mp3s, film downloads and e-books that we consume) and Digital Assets (e.g. our emails, blogs, photos and videos that we create and upload).
We all probably own books, CDs, DVDs, and perhaps an old vinyl record collection? We are very used to dealing with these physical assets, which often attract strong sentimental value, and we readily bequeath or transfer ownership in these physical assets. However, more and more of us are now consuming the majority of our content digitally. The main difference with digital content is that you typically do not own the content at all. When you hit “buy” or “purchase” to acquire a film from iTunes, a track from Amazon, an e-book from Kindle or an app from Google, we are not buying ownership of the content. All we are doing in acquiring a licence or right to use, view, listen, read or play that content.
Licence terms will vary from provider to provider, but generally all you are buying is a personal, non-transferable licence for you (the account holder) to consume the content - crucially for as long as you are alive. That means that you cannot bequeath your iTunes library to your kids, in fact the terms of use expressly forbid it. In addition, account-holders are expressly prohibited from disclosing their ID, password and account details to others, so no-one else should use your log in details.
Digital Assets that you have created and store online, such as photos and videos, blogs, social media accounts, posts and tweets, online gaming avatars and emails, are treated slightly differently. However, just like digital content, they are still subject to terms and conditions. 
Most terms acknowledge that the user owns and retains all rights in the content that they create and upload to these sites/services. In return the user agrees (whether you like it or not) to give the ISP a worldwide, royalty-free licence to use the content. But what happens to all these digital stored on an account after death? Again, practice varies considerably between different providers, but most provide for either: termination of the account and automatic deletion of all info stored on it following a period of inactivity (usually 12 months); allowing users to decide what happens to their data following period of inactivity; or allowing beneficiaries, on production of the relevant paper work, to request copies of the content.
Terms and conditions do vary considerably from ISP to ISP. So users should be aware of what will happen to their content on each of their online accounts on death and have the opportunity to plan ahead to prevent digital assets being lost, locked or destroyed. 
David Goodbrand
Partner

I ticked off another item on my bucket list the other day by making my radio debut. I took part in a programme on Radio Scotland on the importance of planning for the future, making a will and ensuring that you know how your assets will be distributed following death. Not the cheeriest subject, but an important one nonetheless. As an intellectual property lawyer, my contribution was to discuss what happens to your digital data when you pass away. The answer might not be the one you were expecting.

There is a distinction that needs to be made between Digital Content (e.g. the mp3s, film downloads and e-books that we consume) and Digital Assets (e.g. our emails, blogs, photos and videos that we create and upload).

We all probably own books, CDs, DVDs, and perhaps an old vinyl record collection? We are very used to dealing with these physical assets, which often attract strong sentimental value, and we readily bequeath or transfer ownership in these physical assets. However, more and more of us are now consuming the majority of our content digitally. The main difference with digital content is that you typically do not own the content at all. When you hit “buy” or “purchase” to acquire a film from iTunes, a track from Amazon, an e-book from Kindle or an app from Google, we are not buying ownership of the content. All we are doing in acquiring a licence or right to use, view, listen, read or play that content.

Licence terms will vary from provider to provider, but generally all you are buying is a personal, non-transferable licence for you (the account holder) to consume the content - crucially for as long as you are alive. That means that you cannot bequeath your iTunes library to your kids, in fact the terms of use expressly forbid it. In addition, account-holders are expressly prohibited from disclosing their ID, password and account details to others, so no-one else should use your log in details.

Digital Assets that you have created and store online, such as photos and videos, blogs, social media accounts, posts and tweets, online gaming avatars and emails, are treated slightly differently. However, just like digital content, they are still subject to terms and conditions. 

Most terms acknowledge that the user owns and retains all rights in the content that they create and upload to these sites/services. In return the user agrees (whether you like it or not) to give the ISP a worldwide, royalty-free licence to use the content. But what happens to all these digital stored on an account after death? Again, practice varies considerably between different providers, but most provide for either: termination of the account and automatic deletion of all info stored on it following a period of inactivity (usually 12 months); allowing users to decide what happens to their data following period of inactivity; or allowing beneficiaries, on production of the relevant paper work, to request copies of the content.

Terms and conditions do vary considerably from ISP to ISP. So users should be aware of what will happen to their content on each of their online accounts on death and have the opportunity to plan ahead to prevent digital assets being lost, locked or destroyed. 

David Goodbrand

Partner

This article was published in The Scotsman on Monday 7 March 2016. 

LChalmers