Death in the digital age: Are you prepared?

Leaving a Digital Legacy is it possible?

The issue of what will happen to your digital assets on your death is fast becoming an emerging area of law.

One of the world’s largest online stores is recognisably Apple’s iTunes (other online stores are available). Quite simply, iTunes revolutionised the way in which we buy music, and more recently the way in which we buy films and digital books.

Buying the new album of your favourite artist used to involve making a specific trip into town to one of the, then, many music stores. The picture is very different today, whilst we are now very limited on choice of music stores on our high street, we can now purchase an entire album on our computer or smartphone within seconds.

iTunes purchases are typically stored in digital form on your registered device unless you decide to make a back up (highly recommended) in digital form or on a much more traditional form such as a CD. However, Apple has recently introduced the concept of the iCloud – a concept which could quite easily be considered as a hard drive in the sky – which automatically backs up (indefinitely!?) and syncs your iTunes purchases, photos, documents, contacts, calendar, apps¦¦.. the list goes on.

Whilst a persons digital presence is getting ever stronger, not forgetting online social networking such as Facebook, Twitter etc, which I do not propose to go into this time round, the question in law which is yet to be properly considered is what happens to online and digital content on the death of a user? Is it possible to pass such content in accordance with your Will?

Apple’s iTunes terms and conditions are notably silent on this issue, and possibly quite rightly so until the Courts make a ruling to give a precedent to the legal world. In fact, this month I was due to attend a training course on the subject of ‘digital legacies’. Unfortunately the course was cancelled by the provider as quite simply there is not yet sufficient guidance in statute or case law to make such a course worthwhile.

Questions for legal discussion and clarification (to name a few):

  • – What will happen to your digital music, films and books on your death? Can they pass in accordance with your Will?
  • – Is there any difference between digital content when compared with a traditional CD, DVD or paperback?
  • – Is there an issue in relation to the world of licensing? In purchasing online you are effectively purchasing a licence to play the relevant digital content. It should be remembered that the copyright will always remain with the creator (¦remember the Court battles between the record labels and the online file sharing program Napster!?)
  • – does such a licence pass in accordance with your Will on death, or does the licence simply expire?
  • – Can you give a value to your digital content and consider it an asset; after all you have paid for it?

Quite simply, until some clarity is given to this very much grey area of law we must all wait in anticipation¦¦¦¦