13 June 2015

Digital Inheritance

Preliminary thoughts, all.
Of course, IRL categorisation isn't as neat.

An interesting question which seems to be asked increasingly often is: What happens to your digital assets after you die? 

The question itself though seems to be inadequate. Precisely what digital assets is one talking about? Are the assets somehow governed by contracts? If the contracts are standard form, such as for example, in relation to content one uploads on a SocMed site before one's death —lawyerly 'overclarification', I just realised; clearly, one won't upload anything post-mortem although it may be possible to publish content post-mortem— do the terms of the agreement govern what would happen to the content and how access to the content would be handled? Or in a country like India, with contracts often being under foreign laws, could such standard forms be challenged if necessary possibly for being unconscionable or against public policy if the terms involved are in fact unfair to the heirs or legatees of the person who has died?

In terms of content one has 'bought', what happens to digital assets? The term 'bought' is a misnomer given that much music and most eBooks are, more accurately, licensed. There, too, would possibly-challengeable contracts be the determinant?

What role would the exhaustion of copyright, if any, have in those cases where exhaustion comes into play with content having been sold outright? Under Indian law, if one were to speak in general terms, there is no exhaustion of rights when it comes to cinematograph films and music in the form of sound recordings, and exhaustion when it comes to books or literary works is limited to so-called regional exhaustion. This is, however, not what the statute itself says: exhaustion is far more limited under the statute than it is in general legal parlance.

Copyright owners, in the case of cinematograph films and of sound recordings, after the first legal sale of a copy of the work retain the right to control further resale and the commercial rental of that copy of the work or offers for the same by virtue of Sections 14(d)(ii) and (e)(ii) of the Copyright Act. And in the case of books, the same statute, through Sections 3 and 14, limits the right of the copyright owner to the 'issue copies of the work to the public' if those copies are not already in circulation by having once been legally sold, with courts having indicated that 'the public' means the public within the contractually-designated territory for first sale. As such, the understanding of copyright law limits exhaustion in books to 'regional exhaustion' is flimsy: the 'contract' could be little more than a notice on the book saying that it is for sale in a specified area. The cases which have defined the law of copyright exhaustion in India have happened to deal with 'Books for sale in the Indian subcontinent': courts respected this notice on the books, and held that the first legal sale within the 'contractually'-designated territory would result in the copyright owner exhausting his rights within that territory alone. The result has been that it is often misleadingly assumed that Indian copyright law follows regional exhaustion.

The nuances of the law of exhaustion aside though, the fact of the matter is that exhaustion as far as the statute is concerned is extremely limited. In the case of books, it is associated the right to issue copies to the public. In the case of films and sound recordings it is associated with the rights of resale and commercial rental. None of these rights has anything to do with either inheritance or bequests. As such, if the content (be it eBook or mp3, or copyrighted content in some other form) was actually sold to the person who has died, nothing in copyright law would prevent his heirs or legatees from owning the content outright. Contractual restrictions could, however, apply particularly if the content was not sold but licensed.

Added to this is the issue of DRM. Many eBook and music files are, of course, protected by DRM. However, there is a critical difference between the Indian legal conception of DRM and, for example, the manner in which DRM is conceived of under US law. Section 65A of the Indian Copyright Act states:

65A. (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) shall prevent any person from,— (a) doing anything referred to therein for a purpose not expressly prohibited by this Act: [....]

In other words, the removal of effective technological measures applied to protect copyright is not an offence unless the removal is executed with the intention of infringing copyright. Further, from Section 65A(2)(a), it appears to be evident that effective technological measures applied to protect copyright can be removed for any purpose not expressly forbidden by the statute. As such, it would appear that if one actually owns content (and that's a big if), perhaps by having inherited it, it should be possible to legally strip it of DRM (though not of RMI which is dealt with separately in Section 65B of the statute) for the purpose of personal use. Thus, content which was bought by the person who has died could be both owned by and accessible to his heirs or legatees.

Of course, there is also the question of what happens to content the person who has died has created oneself and not bought. Once again, the issue of what contracts say arises if the content in question lies, say, in an eMail account or a SocMed account. Of course, if it is on the Desktop of the laptop of person who has died, it is far less likely that a (likely standard form) contract would come into play. Either way, the person claiming the content would need to be able to access it. Unless he had the passwords, accessing the content could depend on, if there were a company involved, how the company viewed the request for access.

Assuming that the person claiming the content had the ability to access the content though, the question would become who owned the content. If the content could be considered to have been disposed of via a will, and it were an unpublished literary, musical, dramatic or artistic work, Section 20 of the Copyright Act would probably provide an answer by ensuring that the copyright in the 'manuscript' would be bequeathed along with the manuscript itself. The provision reads as follows:

20. Transmission of copyright in manuscript by testamentary disposition. Where under a bequest a person is entitled to the manuscript of a literary, dramatic or musical work, or to an artistic work, and the work was not published before the death of the testator, the bequest shall, unless the contrary intention is indicated in the testator's will or any codicil thereto, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death. Explanation. In this section, the expression "manuscript" means the original document embodying the work, whether written by hand or not.

Although the provision was drafted long before digital assets became a concern, there is nothing contained in the Section which indicates that it would not or could not apply to digital assets. In the case of other works created by the person who has died, it appears that the standard laws relating to movable property would (or at any rate, could) apply.

Ownership and access are, however, two entirely different things. If the content is stored without a password or with a password known the heir or legatee, access should not generally be an issue. However, as mentioned earlier, in the case of password-protected content, it is far from clear that under Indian law, if a person were to inherit or be bequeathed content that was inaccessible by reason of its being password-protected, the company on whose website the content was uploaded (assuming that it was so uploaded) would have an obligation to share the password with the heirs or legatees.

There are sticky issues of contractual terms and privacy involved. Whilst Indian law does not recognise a post-mortem right to privacy, that does not by a long stretch mean that a company storing a dead person's content would or should grant access to that content to anyone. And as far as the contractual terms governing site usage are concerned, what they could say (although presumably not unchallengeable) could vary significantly from site to site.

The question of digital inheritance does not appear to have been an issue which Indian courts have (yet) had to grapple with in any significant manner, and at this point of time, how they would deal with it does not appear to be entirely clear. However, what is almost certain is that making a will which clearly specifies how one would want one's digital assets to be disposed of would significantly help matters for oneself (and those who attempt to claim one's digital assets after one has died) even if it does nothing worth mentioning to answer broader questions of policy and law.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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