Digital inheritance: Difference between revisions

Revision as of 01:18, 18 December 2021

Revision as of 01:20, 18 December 2021

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Digital media can be physically owned, such as those stored on personal computers, hard drives, or optical discs, in which case the digital content exists on a format which can easily be bequeathed and passed down to heirs. A growing majority of digital content and interactions, however, are stored in an online environment and not owned by the individual but by the company providing the online service or product.<ref name=":0">Banta, N. M. (2014). Inherit the cloud: The role of private contracts in distributing or deleting digital assets at death. ''Fordham Law Review, 83''(2), 799-854. https://heinonline.org/HOL/P?h=hein.journals/flr83&i=817</ref> Examples of this include the online services provided by large corporations such as [[Google]], [[Apple Inc.|Apple]], [[Microsoft]] and [[Facebook]]. With the average person having 150 online accounts that require a password,<ref name=":4">Polk, M. J. (2019). Be right back: Black Mirror and the importance of digital estate planning. ''South Carolina Lawyer, 31''(1), 52-57. https://heinonline.org/HOL/P?h=hein.barjournals/sclwy0031&i=54</ref> digital inheritance has become a complex legal and ethical issue. Legal conflicts surrounding digital inheritance center around questions of [[intellectual property]] rights, user privacy, and [[Property law|estate law]].

==Digital estate and digital assets==

{{main|Digital assets}}

The term ''digital estate'' refers to digital media and rights that can be inherited. Digital assets are (in contrast to physical assets) more dynamic and ephemeral. When a person dies they leave behind a digital presence which can include online accounts, passwords, contracts, receipts, financial transactions, medical information or personal websites, and can involve banking, writing, images and social media. A digital estate is not only a person's online presence; it includes data stored digitally on personal technology such as a phone or computer.

The term ''digital estate'' refers to the inheritable digital assets included in a person’s estate. This must include the digital media itself as well as the rights to have control over that media.<ref name=":1">Ferrante, R. E. (2013). The relationship between digital assets and their transference at death: It's complicated. ''Loyola Journal of Public Interest Law, 15''(1)'','' 37-62. https://heinonline.org/HOL/P?h=hein.journals/loyjpubil15&i=47</ref> A person’s digital assets may be digital media that a person owns outright or has the rights to use according to a terms of service agreement. Assets may be stored either online or offline and include online accounts, any form of writing, images and other created static or dynamic content, or any digital content that has economic value. They may include sensitive information, such as banking and medical records, or shared information, such as social media contacts or forums. In contrast with physical assets, digital assets, particularly those stored online, are always vulnerable to change or deletion.<ref name=":02">Banta, N. M. (2014). Inherit the cloud: The role of private contracts in distributing or deleting digital assets at death. ''Fordham Law Review, 83''(2), 799-854. https://heinonline.org/HOL/P?h=hein.journals/flr83&i=817</ref>

Two principal issues arise over a person's digital estate. First, the inheritability of the digital content must be determined. Only digital content for which the deceased holds the copyright may be passed down to an inheritor. There is a distinction in law between full ownership and right-to-use licenses such as in software, digital music, film and books and there is legal precedent for denying resale or bequest of these.<ref>Masnick, M. (2010, September 13). ''Appeals court destroys first sale: You don't own your software anymore''. Techdirt''.'' https://www.techdirt.com/articles/20100912/12212110968.shtml</ref> Second, the heir or administrator of an estate must be able to access the content. This sometimes means navigating any online contracts or service providers’ terms of service agreements regarding their policies on user privacy and user death.<ref name=":1" /><ref name="Moneywise2">Bevan, K. (2014, July 23). ''Leaving a digital legacy''. Moneywise. https://web.archive.org/web/20150402152830/http://www.moneywise.co.uk/cut-your-costs/family-life/leaving-digital-legacy</ref>

Two principal issues arise over a person's digital estate: firstly, inheritability, those data or copyrights which belong to the deceased and can be inherited; secondly, access to the deceased person's digital estate by someone charged with dealing with it. A number of bodies have highlighted the difficulties that these and other issues may raise.<ref name=Moneywise>{{cite web|title=Leaving a ditigal legacy|url=http://www.moneywise.co.uk/cut-your-costs/family-life/leaving-digital-legacy|accessdate=20 March 2015|archive-url=https://web.archive.org/web/20150402152830/http://www.moneywise.co.uk/cut-your-costs/family-life/leaving-digital-legacy|archive-date=2 April 2015|url-status=dead}}</ref><ref name=Scot>{{cite news|publisher=BBC|date=30 September 2014|title=Warning over protecting online assets after death|url=https://www.bbc.co.uk/news/uk-scotland-29418863|accessdate=20 March 2015}}</ref><ref name=Co-op>{{cite news|publisher=BBC|date=24 February 2015|title=Plea for people to create 'digital legacy' letter|url=https://www.bbc.co.uk/news/technology-31598343|accessdate=20 March 2015}}</ref>

===Digital assets ===

{{main|Digital assets}}

Digital assets are those digital media that a person owns, or has rights to. They may include [[password]]s, writing, images or other media, either online or offline. They may be sensitive, such as banking and medical information, or shared information, such as with social media contacts or in forums. In contrast with physical assets, digital assets are always subject to change or deletion.

==Data heir==