Growing use of software applications in the home, the workplace, and in public places has resulted in increased production and use of personal digital files. These digital files may take the form of emails sent to colleagues, photos of family and friends taken on a camera or smartphone, music downloaded from a number of different services, or videos taken at weddings or birthday parties. In this environment of increased data production and usage, unavoidable questions arise as to what happens to these files when a person dies.
There is, in general, a lack of understanding about the rights consumers have over the digital files they buy or produce that has implications in the context of death. The purchaser of a physical product such as a book, a CD, or a DVD has certain “normalized” rights over the product, such as the right to give the item to another person. This is termed “the right of first sale.” This allows for gifting, lending libraries, secondary markets of copyrighted work (such as book stores and second-hand record shops), and for bequeathing a collection of books or CDs to relatives and friends. However, regarding digital products and services such as eBooks and music streaming services, a different set of distinct and separate relationships are in place, and it is not always clear what the consumer’s rights are in the context of death and the bequeathment of digital items.
Consumers need to be made aware that when they press the “buy” button on an eBook or music file that they are not really buying anything at all. The appropriate term is “rent” or “loan” as there is usually no transfer of property in the transaction, only a limited right to use. In addition, the delivery methods of digital products are changing rapidly so increasingly there is no physical copy of the digital products, coupled with the inherent “right of first sale” licence embedded within the physical copy. The situation is bound to become even more convoluted with the increase of cloud services to deliver entertainment and other software services where there is no transfer of a digital file or “property” in any meaningful sense of the word from one party to the other. Thus, the ability to bequeath something to another person is challenged if it is not owned in the first place, or if there is no local copy.
The issues of ownership of digital files and their transfer to another person, contractual obligations, and the maintenance of digital files over time are key issues in the emerging digital economy. Although it is not possible to comprehensively explore these debates across all the industries and services that make up the digital economy here, what we can do is outline some of the innovative and practical responses to the management of digital legacies and the key issues that surround them for consumers. Some of these responses include new services to allow the download and storage of data locally and then the ability to request, for instance, that all the data held by the online services is deleted upon death. Other responses include “digital lockers” where passwords and important digital files may be stored and accessed by an Executor of a Will, friend or relative upon death. Many legal professionals and estate planners suggests the inclusion of a “digital registrar” in a will that states the location and passwords of digital accounts with additional instructions such as “delete all files” or “create an online memorial.”
Digital files of all types now constitute an important part of our personal and family histories, thus the ability to transfer them to another person is of vital importance for the transfer of family heritage from one generation to the next. The loss (or at least changing nature) of certain property rights within the digital economy impede the ability to transfer some copyrighted material to others, thus consumers need to be aware of this and create strategies to prevent their important digital legacies being lost through non-transferability. Companies within the digital economy also need to make consumers aware of their rights over materials such as music and eBooks as there are still many misunderstandings about them that originate in the normalized copyright relationships of the pre-digital economy. Companies also need to create new products to make the task of planning and managing digital heritage easier and there are positive steps emerging in that direction.
This work was supported by a grant from the Australian Communications Consumer Action Network (ACCAN).
The authors are with the University of Melbourne, Victoria, Australia.