Posted by James Worrall, Partner
What happens to your digital assets when you die?
With more and more people using social media and cloud services, a whole new area of legal analysis is developing on the subject of what happens to a person’s digital assets following their death.
The term “digital assets” includes anything that you have created that is stored online, i.e. on a server that you do not control, and so it includes:
- emails that you have sent
- your blogs
- your Facebook entries
- your tweets
- any photos that you have uploaded onto a storage or sharing website
- any videos uploaded by you, for example, onto YouTube
- a musical performance by you that you have uploaded
- any books, short stories or poetry written by you and stored online
- your digitally created artwork
- your LinkedIn profile
- any websites that you have created using a third party’s services and hosting facilities.
So what happens to all of your digital assets when you die?
At the moment, there are no special laws to deal with this issue, and so we have to rely on the existing law. The problem with this is that there is an obvious clash between your family wanting to enjoy the sentimental and financial value of your estate and the internet service provider (ISP) – which owns the server on which your digital assets are stored – wanting to protect your privacy and the confidentiality of your digital assets following your death. Most of the recent cases in this area result from this clash.
Assuming that your digital assets are original works that have been created using independent effort, there is no doubt that you own copyright in them. This right is automatic and continues for 70 years after your death. The right will first rest with your personal representatives under your Will and then pass to your beneficiaries.
But how can your personal representatives and beneficiaries obtain full access to your work following your death? They may have your logins and passwords, but accessing an online account without specific authority from the account holder is arguably an offence under section 1 of the Computer Misuse Act 1990 – so not ideal! Furthermore, the standard terms and conditions of most ISPs prohibit account holders from recording details of logins and passwords to reduce the chance of hacking.
Some ISPs have thought through this issue and, when you register, you have to nominate someone else to have access to your digital assets following your death. But, currently, these ISPs are in a minority.
Until the ISPs and the law catch up, the best advice is to put some thought into planning ahead. As the default position of the ISPs is to press the delete button following a period of inactivity, failure to plan ahead could result in the disappearance of your digital legacy.
Our Technology & Media team are experts in protecting your intellectual property and helping you get the most value out of it. If you have an enquiry about your digital assets or any other concerns about intellectual property you own please get in touch.
0800 051 8059 Email us