Private But Eventually Public: Why Copyright in Unpublished Works Matters in the Digital Age

Abstract

Digital life is no longer only concerned with online communication between living individuals; it now encompasses post-death phenomena of inheritance, legacy, mourning and further uses of our digital remains. Scholars and practitioners seeking an appropriate legal theory to claim, control and recover the digital remains of the dead and protect post-mortem privacy interests have identified copyright as a possible surrogate. This article explores the links between copyright and privacy in unpublished works. It charts the historical development of perpetual copyright protection in unpublished works, reviews the reasons why perpetual protection for unpublished works has been abolished and analyses some of the privacy impacts of these changes. It argues that without perpetual copyright protection and the surrogate privacy protections in unpublished works, the fear that one’s digital remains will eventually be opened to societal scrutiny may lead to the fettering of personal and private communication, while alive, and may promote the deletion of one’s digital remains in contemplation of death. This could have perverse consequences, denying family and friends mementos, including access to shared memories of those who have died, and may also deny future historians and generations access to the materials of history. Therefore, it is argued that any regulation of digital remains must recognise the privacy interests of decedents and reconcile them with the interests of surviving family, heirs, friends and wider society.