—The virtual inheritance by China laws and regulations
Highlight: The internet plays a more and more important role in daily life with the rapid development of the online society, and there have emerged various digital properties including instant messenger, blog and virtual properties, which inheritance however has been a new legal problem.
It’s reported that Tencent QQ, the most popular instant messenger in China with a maximum online population of 140 million, has refused the requests to inherit the QQ account for several times.
After the death of Mr. Xu, a QQ user in XI’AN, his family required Tencent to provide the deceased’s account details for the commemoration of the mails and pictures in it. Tencent refused the request, claiming that the ownership of the account shall be reserved by it with the user only has the right to use.
Miss Xia from Changsha also encounters the refusal of Tencent against her request to get the emails and pictures of her husband, who has passed away.
According to the Succession Law of China, the properties protected by law shall include both the real and virtual property like the Intellectual Property. But the contents contained in the accounts are more complicated. For instance, most chat logs are non-copyrighted with few could be the intellectual property, and the data may also contain privacy. There’re no specific legal regulations on the inheritance of it. In our opinion, as the operator of the instant messenger, it’s reasonable for Tencent to reject the information disclosure, while the survivor’s claim also makes sense. To solve the problem, we believe it shall first distinguish the virtual properties from the other account records, and Bridge IP Commentary will discuss over the issue in this essay.
We believe it’s inheritable shall the information in the account could be deemed as the virtual property, and the followings are our analysis on the types of virtual properties：
I. The Intellectual Property
The un-published copyrighted content in the user’s account is obviously valuable, for such property, we think it shall be inherited according to the Succession Law and the Property Law.
II. The purchased virtual currency
Currently, the “Notice on Strengthening the Administration of the Online Game Virtual Currency from Ministry of Culture and Ministry of Commerce” (the “Notice”) is the most specified rule on the virtual currency in China. As defined in the Notice, the “Virtual Currency” shall refer to the virtual exchange tool displayed in certain digital unit and stored in the server of the online game operator by the method of electromagnetic technology separated to the game programs, which is published by the operator of the online game and directly or indirectly bought by the users with the legal currency at a fixed rate. Obviously, by such definition, the “Virtual Currency” is exchanged by the actual currency, and shall be the heritage for it possesses the feature of “Property”.
III. The virtual goods and service
For the inheritance of the virtual goods in the account, the game operator and the user hold the sharply different attitudes. Almost all the operators in China (including the online game “World of Warcraft” developed by Blizzard) will stipulate in the agreement that all the virtual goods gained in the game shall belong to the operator. If it is valid, the virtual goods cannot be inherited. But the users don’t agree with it in any case. As the representative of the users, we have participated in many lawsuits of the conflict over virtual game equipments, among which some are supported by the court with the judgment of recovering the lost equipment by the operator.
As to the property of the virtual service, by our opinion, from the essence, it’s kind of service purchased or rented by the consumers, who shall has no ownership of any virtual goods basing on it. For example, the purchase of the game items as kind of service is to gain the right to use in certain period instead of the acquisition of any derivative contents of such service. As a digital heritage, it’s the service purchased rather than the items that could be inherited. Surely the above discussion makes no sense, if the heir has taken command of the account with the knowing of the account and password.
IV. The personal right
The most intractable part is the virtual assets containing personal rights, including the picture, diary and personal information, etc. One side, unless it could be demonstrated the feature of property, the asset will not be inherited for its personal nature. On the other side, either the heir or the service provider shall have the access to the privacy of the deceased in the heritage. The inheritance is not practicable once no economic value of the heritage could be proved. A common solution is to tell the family the account and the passwords, thus the afflicting problem of inheritance shall no longer come up.
In China, the discussion over virtual property shall be made in specific situation for its various natures, and the collection of evidences and bases for right claiming may vary under different conditions. As practiced in legal serviced, especially skilled and experienced in the field of IT, the professionals from Bridge IP Commentary are dedicated to your legal counseling, and any questions concerning the digital heritage are welcome.
Copyright reserved by Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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