Today’s blog was co-written with Demetre Vasilounis, Student at Law at Fasken LLP.
It is now a given that, in the 21st century, estate planners should pay attention to how clients deal with their digital assets. This is true whether such digital assets consist of social media accounts (Facebook, Twitter, LinkedIn) or money invested into software platforms for the purposes of electronic transactions within these platforms (online games, application stores). Numerous practitioners have made suggestions as to how estate planners should protect and provide for the management of these digital assets.
However, in the era of increased online spectatorship, there remains a certain type of digital asset that has had limited treatment in Canadian estate law: digital assets that continue to generate revenue after death. Two notable examples are YouTube, the online video-sharing platform, and Twitch, a platform for individuals to generate and record livestream broadcasts. YouTube provides a monetization scheme whereby it pays its users a percentage of the advertising revenue that their videos generate. Naturally, the more views a user gets, the more money YouTube pays the user. Twitch operates with a similar structure, but includes an added feature: users can directly donate money to Twitch livestreamers (popular livestreamers have used this feature to effectively stream videos for a living). Notably, both YouTube and Twitch label their monetization system as a “Partner” program.
Under these Partner programs, it appears possible that a deceased user’s recorded YouTube or Twitch videos may continue to generate revenue after that user’s death. What is unclear is if there are any caveats to that revenue being paid to a deceased user’s estate. In the past, certain organizations have created challenges for executors and estate beneficiaries in respect of the ownership of a deceased user’s account. For example, some years ago, when contacted by a widow who wanted to access to her deceased husband’s Apple account to play games on his iPad, Apple initially refused to grant the widow access to the account. However, seemingly upon attracting negative media attention for this decision, Apple ultimately conceded to the widow’s demands.
Neither YouTube nor Twitch provide information about what happens to Partner revenues of deceased users. While Google, which owns YouTube, does have a program for the management of certain types of accounts after a user’s death, this program does not seem to address revenue generated from YouTube.
While the terms of both Partner programs do not specifically address what happens to a user’s revenues after their death, each does provide a mechanism for termination of monetization. For example, YouTube can terminate monetization “for convenience with 30 days prior written notice”. Twitch, on the other hand, may terminate monetization “at any time, with or without cause, by giving the other party written notice of termination”.
Furthermore, there is one notable aspect of either company’s general Terms of Service of which users should be aware: copyright. Although users of either platform are the copyright owners of the original content that they upload, these platforms’ Terms of Service each mandate what is essentially a non-exclusive, worldwide license to distribute and publish the material however each sees fit. Neither policy contemplates an exact expiration date for these licenses: YouTube’s dictates that any given license terminates within “a commercially reasonable time” after a video is removed or deleted from the service, while Twitch’s license lasts for “the maximum duration permitted by applicable law”. Therefore, users should be alert to the fact that, theoretically, YouTube and Twitch can terminate a Partner program designation for a user’s videos (thus terminating revenues for the user) but nonetheless be able to generate revenue from those videos themselves. To prevent this phenomenon, an executor for a deceased YouTube or Twitch user should consider contacting the corresponding platform(s) to have the user’s videos removed.
On the other hand, it seems that, if after their death, a YouTube or Twitch user would like for their videos to continue to generate revenue for their estate or for the benefit of a specific beneficiary, they should leave specific instructions in their will indicating this intention. Again, the problem is that YouTube and Twitch seem to be able to terminate a “Partner” designation for videos for whatever reason they deem appropriate. Whether or not they would actually do this in the case of a deceased user is unknown.
Although estate law issues pertaining to YouTube and Twitch revenues have never been litigated in Canadian courts, they do present the unique issue of assets that may continue to generate revenue after death but are dependent on the will of a third party. YouTube or Twitch users should seek out the appropriate expertise in navigating this developing area of estate law.