Can You Pass Your Digital Assets on Death?
Maxine Braham

Can You Pass Your Digital Assets on Death?

Life used to be less complicated when passing on such assets as photographs, CDs, DVDs and books.  Notebooks and diaries filled your ideas and thoughts. These items were normally held in physical form and distributed to family and friends or in accordance with a person’s wishes when they died.

As we move into a New Year, the Awards Season is now upon us.  The Grammys, the Brits and  the Oscars are fast approaching.  Technology has revolutionised how we keep our music and films and how we share our memories.  Could I leave my virtual record collection to my loved ones?  What rights do I have over my iTunes and Spotify accounts and even the digital music that I have paid for and downloaded over the years?

Digital property or assets can be classed as any information about you or created by you that exists in digital form either online or on an electronic storage device including the information necessary to access the digital property or asset.  All of your digital property or assets comprise your digital estate. 

Worldwide, the law in this area is in a state of confusion because it is not up to date with the advances which have occurred in digital innovation.  The law as it currently stands is set up to deal with physical assets and property and it is therefore unclear what the current position is with social network accounts, music accounts and subscriptions to companies such as Netflix etc.

There are not yet any statutory laws concerning the ownership of virtual assets or any substantive case law.  It is therefore being left to providers of digital content to decide what they will allow consumers to do with items they buy or share online. 

Regarding music and films, in most cases you are leasing the content and not buying it.  If you purchase a film or song through iTunes, for instance, you are generally being sold a licence to use the song or film and not the item itself.  Where the music or film is downloaded onto a device that you can leave someone, you cannot leave instructions to share out the content in your iTunes account when you die.  From a legal point of view, there is nothing to leave.  Providers of digital content do not normally allow transfer of digital assets from one person to another unless you share account details with say family members. 

Regarding books, your virtual library will also die with you meaning that leaving the device holding your digital collection of books to another person could mean that the latter could encounter problems in trying to access the original account.

Social media accounts are bound by the service providers’ terms and conditions.  It would therefore be unlikely that executors would gain access to a deceased person’s social media account for fear of breaching privacy rights.

Regarding iCloud accounts, Apple clearly state in its terms and conditions that “You agree that your Account is non transferable and that any rights to your Apple ID or content within your Account terminate upon your death”.  Apple go on to state that upon them receiving a death certificate, the account may be terminated and all content within the account deleted.

What is the moral of this story?  I began collecting music digitally when I own much of the content in vinyl or CD form.  Would you now go back to collecting music and film in physical form to ensure that the content can be passed safely by your executors in accordance with your wishes until the law in this area is brought up to date in line with digital innovation?