Научная статья на тему 'THE PROBLEMS OF DIGITAL RIGHTS INHERITANCE IN THE RUSSIAN FEDERATION'

THE PROBLEMS OF DIGITAL RIGHTS INHERITANCE IN THE RUSSIAN FEDERATION Текст научной статьи по специальности «Право»

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INHERITANCE / DIGITAL RIGHTS / CRYPTOCURRENCY / TOKENS / ACCOUNTS ON SOCIAL NETWORKS

Аннотация научной статьи по праву, автор научной работы — Abramovich Iuvelina, Vasilyeva Elena

The paper of legal doctrine and a number of legislative provisions allows us to identify the most pressing problems that require regulation by the legislator. The questions of inclusion of domain names in the hereditary property and inheritance in the case of several heirs were also identified. Particular attention should be paid to the possibility of inheriting digital rights, such as tokens and cryptocurrencies, because of the anonymity of their holders and their special legal nature and content. To solve these problems, the authors propose to partially adopt foreign experience and introduce new unique legal mechanisms and modern subjects in civil circulation

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Текст научной работы на тему «THE PROBLEMS OF DIGITAL RIGHTS INHERITANCE IN THE RUSSIAN FEDERATION»

ВОПРОСЫ РОССИЙСКОЙ юстиции ВЫПУСК № 24

ГРАЖДАНСКОЕ ПРАВО; ПРЕДПРИНИМАТЕЛЬСКОЕ ПРАВО; СЕМЕЙНОЕ ПРАВО; МЕЖДУНАРОДНОЕ ЧАСТНОЕ ПРАВО,

КОРПОРАТИВНОЕ ПРАВО

УДК 347.65/.68

Абрамович Ювелина Борисовна Васильева Елена Владимировна Северо-Западный филиал Российского государственного университета правосудия

Россия, Санкт-Петербург yuvelinaa@mail.ru evasilyeva! @hotmail .com Abramovich Iuvelina Vasilyeva Elena

North-Western Branch of the Russian State University of Justice

Russia, Saint-Petersburg

ПРОБЛЕМЫ НАСЛЕДОВАНИЯ ЦИФРОВЫХ ПРАВ В РОССИЙСКОЙ

ФЕДЕРАЦИИ

Аннотация: изучение правовой доктрины и ряда законодательных положений позволяют нам выявить наиболее острые проблемы, требующих регламентации со стороны законодателя. Также были выявлены вопросы включения доменных имен в состав наследственного имущества и наследования в случае нескольких наследников. Особое внимание следует уделить возможности наследования цифровых прав, таких как токены и криптовалюты, в силу анонимности их обладателей и их особой правовой природы и содержания. Для решения указанных проблем авторы предлагают частично перенять зарубежный опыт и ввести новые уникальные правовые механизмы и новых субъектов гражданского оборота.

jjj^' В0ПР0СЫ РОССИЙСКОЙ юстиции

Ключевые слова: наследование, цифровые права, криптовалюта, токены, аккаунты в социальных сетях.

THE PROBLEMS OF DIGITAL RIGHTS INHERITANCE IN THE RUSSIAN

FEDERATION

Annotation: the paper of legal doctrine and a number of legislative provisions allows us to identify the most pressing problems that require regulation by the legislator. The questions of inclusion of domain names in the hereditary property and inheritance in the case of several heirs were also identified. Particular attention should be paid to the possibility of inheriting digital rights, such as tokens and cryptocurrencies, because of the anonymity of their holders and their special legal nature and content. To solve these problems, the authors propose to partially adopt foreign experience and introduce new unique legal mechanisms and modern subjects in civil circulation. Key words: inheritance, digital rights, cryptocurrency, tokens, accounts on social networks.

Nowadays, it is very difficult to meet someone who does not use the Internet because the vast majority of people spend a lot of time in the virtual social field. Legislation, while maintaining its status as the most important social regulator of our time, inevitably regulates the relationships that emerge in the digital environment. This is the birthplace of new objects of civil law today, which have not been fully described by the legislators. The digitization process does not override any civil judicial institutions, including inheritance. Every day, the place of digital rights in the life of civil society continues to evolve. In this regard, it seems appropriate to regulate the succession process of digital rights at the legislative level. First of all, it is a question of knowing what can be attributed to them. The law defines the concept of «digital rights» in Article 141.1 of the Civil Code of the Russian Federation as follows «binding rights and other rights, the content and conditions of which are determined according to the rules of information systems that meet established

criteria: exercising, transferring, pledging, impeding digital rights by other means, or restricting the assignment of digital rights can be done in the information system without the need for a third party».

At the same time, the practice requires a broader understanding of digital law, which has raised the question of the need to broaden the scope of civil law. Therefore, digital rights are generally understood as the right to access and use telecommunications networks and the Internet, electronics and digital media; the rights that allow you to create, receive, use, and disseminate digital information. These typically include mobile money, virtual world currency, cryptocurrencies and corporate currencies; intangible virtual assets (audio and video content, domain names, music albums).

Is it possible to inherit digital assets or digital rights now? It is possible to inherit accounts on social networks such as VKontakte, SIM cards and subscriber numbers, bonuses from commercial companies (Bonus Aeroflot, Thank You, and Bright), domain names, cryptocurrencies or tokens.

The purpose of this paper is to identify the inheritance of digital rights, the problems related to the inheritance of digital rights, and to identify the ways to deal with them.

In modern society, the use of social networks has become an indispensable part of people's lives. Today, it is no longer just a convenient means of establishing communication; it is a one-stop platform for marketing and sales activities. Large companies in the Russian Federation actively use this tool to promote their services and/or goods. Usually, large companies set up a department dedicated to promoting any service and/or product on social networks, with the help of attracting new target audiences and resulting sales, additional goods from the service and/or product created [12, с. 74-76].

Based on the above, we can say with certainty that a trading account has a great physical value. Therefore, according to M.M. Panarina, the prerequisite for the

inheritance of the account is the presence of this value [13, c. 27-28]. If there is no value, then we will talk about granting privileges.

This is the first prerequisite for regulating the inheritance of digital rights at the legislative level. The family social network VKontakte provides the heirs with a limited number of user rights, including only the choice of the process of «remembering the account» or deleting it altogether. The heir does not have the ability to access the deceased's accounts, read and/or engage in correspondence on behalf of the deceased with third parties, so-called virtual acquaintances. Otherwise, it will be a violation of the user agreements, from the heirs of these actions have the opportunity to impersonate others.

In our opinion, VKontakte adheres to the exact same privacy policy, but not all social networks support the ban on having accounts of the deceased. In this respect, it seems appropriate for the legislator to set out a single authorization or prohibit succession and the right to use accounts on social networks. We have tried to find a way to solve this problem.

Although Russian law lacks a definition of a social media account, legal theorists have come up with the following description: «A social media account is a collection of user data used for the purpose of identifying real to allow access to personal data».

Accounts on social networks can be the result of intellectual activity. It all depends on the content of the account, the specifics of the material posted, and how it was sent. According to the provisions of pp. 2, p. 2, Article 1259 of the Civil Code of the Russian Federation, the account will be the result of synthetic creation. In this case, the rights to the results of the creative work may be inherited, but the heirs are responsible for proving that it is not just photo and/or video material posted on social media. Furthermore, an account is a complex object. As an example, it could be an animated work or a musical product (in accordance with Clause 1, Article 1240 of the Civil Code of the Russian Federation). Otherwise, the account can also be identified as a database. In the case of systematized content, different hashtags are used for this

purpose helping users to search thoroughly (as provided for in pp. 2, p. 2, Article 1260 of the Federal Civil Code of the Russian Federation).

A social media account is part of the rights under the license agreement entered into by registering on the platform between its owner as a licensee and the site manager as the licensor. That is, the exclusive rights to accounts in the framework of the social network by default belong to the management of the site, and it is often extremely difficult to demonstrate the presence of the user's own creative investments. On this basis, it should be noted that the inheritance of accounts on social networks can happen when the parties (the testator and the subject using social networks) have an agreement. Therefore, the heirs have the freedom to use the testator's account with subsequent data storage on the server. In our opinion, the principle of secrecy is not violated in this case, since in the event of death the heir becomes a new party to the contract by the agreement.

Thematic blogs and business accounts on social networks are a valuable asset. They have the potential to bring significant profits to the owners. That is, the account is a subject of copyright, and the franchise agreement or license agreement may provide for the provision of access to the account as an object of copyright. The account itself can have various legal components, for example, ownership (money in a social media wallet); the result of intellectual activity (photo and/or video material, animated work, etc.).

It is therefore possible to inherit individual rights and, in these cases, the account itself. For individual accounts we oppose making wills. Without the testator's opinion, we consider the best solution is to give the heirs the right to remember the account or delete it completely all accounts of the deceased. After all, such an account will contain another element - intangible interests (for example, private messages, which are personal and sometimes family secrets).

We recommend that the following adjustments will be made by giving each account owner the right to choose and manage their account. Specifically, in the «Account Management» tab, add a line to choose a future fate, consider three

options. The first includes the full transfer of rights and obligations arising from the license agreement with the chosen heirs. Second, meanwhile, given the choice of an account holder who will manage it in the event of death, the holder has the right to determine the amount of rights available to heirs. The third option is to delete the account completely, the owners determine for themselves how long the account can be deleted, this will happen when the owner will be inactive on the network for three months or a year.

Summing up the above, we can conclude that today there are many conflicting cases, unresolved issues, requiring a series of actions from legislators and social media regulators.

An equally interesting possibility is bonus inheritance. Consider this practice in the example of domestic companies.

Sberbank, one of the Russia's largest financial groups, backs the legacy of bonuses. In addition, the direct loyalty program allows to transfer and use of the «Thank You» bonus to third parties. Another leading domestic financial group, Bank Saint Petersburg, occupies the opposite position. It does not provide inheritance and transfer of «Vivid» bonuses to third parties.

As for the aforementioned bonuses, they are part of the rights under the bank deposit, account and/or loan agreement. Traditionally, a bank deposit cannot be inherited, it is closed, and the heir receives funds only from the decedent's account.

Therefore, you can ask the bank branch to transfer the «Thank You» bonus accumulated by the deceased to your card. For this, you must be a participant in this program. The «Brilliant» bonus, in turn, burns with the account / deposit as it is nontransferable.

A subsidiary of the famous parent company «Russian Railways», according to the loyalty program of the open joint-stock company «Federal Passenger Company» bonuses, as well as premium tickets are purchased with bonuses accumulated, not inherited.

Another example is the Russian airline Aeroflot. Inheritance of earned miles is not currently possible, but the company offers services such as transferring earned miles. Of course, it cannot replace the procedure for their succession. These bonuses burn with the closing of the deceased's account. Transfer of these bonuses is not acceptable.

It should be noted that so far the legislator has not regulated the status of these bounty programs. How they might qualify is not known with certainty. Perhaps, it is some form of discount, ownership, or incentive.

The companies mentioned above establish certain rules according to which the participants of the bonus program receive the right to accumulate bonuses and use them. However, the bonus of the company is not permanent. After the expiration of the establishment period, it will be canceled.

In our opinion, the correct classification of bonuses will be an incentive, because the participant receives a certain privilege when the conditions are met. With such a level, inheritance is impossible because it is not the subject of civil law.

However, inheritance is possible if the legislator recognizes them as property rights and the company in turn excludes the bonus period.

As mentioned earlier, the vast majority of the population uses means of communication in their daily lives. Each citizen is granted a personal subscription number from the time of entering into the contract to provide the corresponding communication service. According to Article 128 of the Civil Code of the Russian Federation, subscriber numbers are not subject to civil rights. On this basis, inheritance is not possible [1]. However, as the new owner, the heir has the right to enter into a contract for the provision of communication services.

According to national legislation, in particular Clause 3.2 of Article 2 of the Federal Law «On Communications», a SIM card is a physical information provider through which communication services are provided and used to identify subscribers [2]. Subscriber numbers are provided for temporary use, as they belong to the state [7]. As a rule, at the time of purchase of a subscriber number, the mobile operator

must enter into a contract with a specific citizen to provide communication services. According to the provisions of p. 25 of the relevant decree of the Government of the Russian Federation for this purpose, the registrant must provide his personal data. In turn, telecom operators are obliged to verify their reliability [6].

Therefore, the question arises, what will happen to the SIM and the subscriber number after the subscriber owner passes away? Telecom operators, as well as legislators, did not prescribe the sequence of necessary actions. This means that the heir has two options: the most promising way is not to continue using the subscriber number in the name of the deceased, but this is short-lived, because eventually, the carrier will detect that subscriber data is not available. Corresponds to the real user and therefore the SIM card will be blocked. In addition, the second way is to enter into a contract to provide communication services that stipulate the maintenance of a specific number of subscribers. To carry out the renewal procedure, the heir must present to the mobile operator a notarized copy of the deceased subscriber's owner.

Because there are no regulations, the heirs face some difficulties. For their solution, a bill on amending Article 45 of the Federal Law «On Communications» is presented to the State Duma in 2020. The subject of the legislative initiative (deputies of the State Duma) is to propose to add p. 7 of Article 45, providing the possibility for the heirs to keep and dispose of the subscriber numbers later. Such a service is paid in nature and requires written notice from the operator of the death of the subscriber. However, in reality, in November 2021, the bill is being rejected [8].

Since SIM cards and subscriber numbers are not the subject to hereditary rights, inheritance is now possible through renewal of the owner, i.e. the inheritance of rights and obligations arising from a contract for the provision of communication services entered into between the testator and the operator. This is especially relevant if the subscriber number has a special meaning to the family and/or if there is money in the account of the deceased subscriber. It should be noted that the city subscription numbers are traditionally passed on to the new owner of the apartment, i.e. without

the right of inheritance under that contract, the right to re-grant under the owner of the property is similar to other utility contracts.

Currently, the legislative framework, designed to regulate the use of digital financial crypto-assets, is gradually starting to appear in the Russian Federation. Regarding the active development of public relations in this area, it should be noted that the definition of «digital currency» has already appeared in the law. Thus, digital currency is a collection of electronic data located in the information space that is accepted as a means of payment, while it is not the currency of our State and / or foreign countries [5]. Today, crypto-assets are an object in civil circulation, but legislators have not regulated their inheritance procedure. However, we believe that its inclusion is possible (digital rights related to property rights according to Article 141.1 of the Civil Code of the Russian Federation) [1].

According to the Civil Code of the Russian Federation, there can be two forms of inheritance of crypto-assets: the testator according to the established legal procedure, or, in the absence of a will, digital rights and at the same time, obligations and transfer of ownership rights in accordance with the provisions of law.

Cryptocurrency inheritance is possible, but at the same time, some difficulties should be noted. Cryptocurrency holders can be identified using an alphanumeric address that begins to appear when entering a transaction. The main problem is the anonymity of the owner without being able to get proof of ownership. Of course, the heir has a low probability of successfully proving the testator belongs to that property. With the help of a lawyer, it is possible to prove that the person is indeed the heir, but this method is lengthy and entails considerable expense.

We would like to note that, now, the inheritance procedure in the Russian Federation is not legalized, since there is no legislative consolidation of its status.

In view of this, crypto exchanges offer a solution to this problem: the holder of digital rights, in the event of his death, must determine the fate of his assets. The owners of crypto-assets note that when making a will and specifying the data necessary for authorization in it, their condition is put at risk, since third parties,

having taken possession of the information, may act in bad faith. The crypto exchange has provided for this, too. It suggests that only the address consisting of numbers and letters should be indicated in the will, and the key should be written in a letter that will be stored in a bank safe deposit box. Such a measure can in no way guarantee the absolute safety of cryptocurrencies. The representative of the notary public suggested applying foreign experience and using digital storage where the key would be reliably protected.

Another proposed solution is to defer payments, but it is not suitable for everyone, only for those with assets in a hardware wallet. To do this, crypto-holders in the will must specify the bank account number to which future transfers of crypto-assets will be made. The handover is done automatically after a certain period. Typically, testers receive a reminder one week before the due date. Therefore, the testator annually has the right to postpone such transfer.

Some of the largest and most well-known crypto exchanges propose to transfer the rights to the account to the heir, based on the user's agreement. At the same time, heirs are required to be active in their account for several years. Otherwise, the assets will be recognized as exorbitant and will be the property of the state. In other words, if the heir is not informed that the deceased has a cryptocurrency account, ownership will transfer to the state after a stipulated time.

Another way, in our opinion, and one of the easiest to access is a multi-signature wallet. In this case, any holder of such a signature has the right to execute transactions and sign virtual documents, for this the testator's written permission is required to execute certain actions.

In modern practice, it seems well suited to address at the legislative level questions about the inclusion of cryptographic property in inheritance, as well as consolidating its status as a digital right or «other asset».

Not so long ago, in 2019, some changes were made to the Civil Code of the Russian Federation. The concept of digital property, which is included in the digital law, is being consolidated. The bill highlights the urgent need to regulate a new field

of public relations. The assimilation of tokens to digital law has provoked a very specific and ambiguous response from the legal community [4].

From the legislator's position, tokens are a type of digital asset issued by an organization to attract funding. In addition, they are recorded in a digital register of records through block chain technology.

We will look at the position of some commoners on the content of the token and its nature. For example, S.V. Sarbash denies digital law, while recognizing it as a legitimate fiction. A.I. Saveliev puts the token as an asset with established economic significance [14, с.]. Ordinary people such as A.G. Guznov, L.Y. Mikheeva, R.M. Yankovsky fully supported the original content of the bill. They propose a designation as a legal object [10, с. 21-25]. A.M. Lapteva follows the model of the real estate complex. Such an application will allow determining the specifics of tokens and standardizing the legal regim [11, с. 28].

M.A. Rozhkova talks about an interesting position, in our opinion, which includes only the possibility of electronic registration of subject civil rights. E.L. Sidorenko believes that a citizen, when purchasing tokens from an organization that conducts activities to publish and coordinate digital assets, must enter into a binding relationship [16, с. 20-22].

There are cases that allow separation of permissions and inheritance, which again proves the value and independence of the token [9, с. 115-118]. There seems to be some similarity in the content itself between the token and the title, which, in a similar way to the law, helps to resolve conflicts and emerging problems. By comparing tokens and non-document titles, we can monitor the possibility of adopting a similar regulatory regime, which may also apply binding rights and other rights that we are aware of [15, с. 39-42].

To summarize above, there is no unified understanding of the meaning of «token» in domestic legal documents. It is considered as a digital right; one of the types of digital assets. It is possible to include tokens in the genetic block, since tokens are equivalent to the value of the property [1]. Along with all the possibilities,

there are also the difficulties of their inheritance, related to issuing tokens without maintaining good condition and having them imported into a single database, where they are registered. The most important thing is that the transactions are done without any third party intervention. It is nearly impossible to identify the subjects of a digital transaction, as personal information is carefully concealed, providing complete anonymity to individuals.

A parallel can be drawn between the proposed procedures for including tokens and crypto-assets in the hereditary block. The testator has the right to notify his or her heirs of the existence of digital rights, either by personal communication or by making a written will. As mentioned earlier, the testator can specify in the will all the data necessary for the authorization. This method does not affect the preservation of the account in any way, because a third part, through selfish motives, having entered valuable information, can make transactions of all assets digitally on your account or make transactions on behalf of the deceased. This is why the public notary recommends that a piece of information be personally communicated to the heirs and that the authorization code be deposited in a safe place or given to a trusted person who undertakes to deliver the envelope in a timely manner or safe way for heirs. The most reliable way might be to use a digital storage where the authorization key will be stored.

There is also a particular difficulty in entering the inheritance for the legal heir, which leads to a lack of technology. Without a mobile device that can access the Internet, it is impossible to become the new owner of the token.

In fact, there is another nuance-not all tokens can be included in the genetic block. Such examples could be the tokens used only as a means of payment. After all, in practice, the legislator did not fix the legal status of tokens and did not prescribe their inheritable terms, which is very relevant at this time in society.

The purpose of domain names is to provide the right to access information by addresses of websites on the Internet (in accordance with Article 2 of the aforementioned law). They consist of easy-to-remember numeric and the Latin

alphabetic characters that indicate the nature of the document in a particular location

We would like to point out that the practice of domain name inheritance began to develop relatively recently, since today there are many points of contention about the possibility of implementing the procedure of domain name inheritance.

To re-register the domain, the assignee must first enter the rights on a joint basis, and then the main application is reviewed. Of course, when the procedure is clear from the legislator, there are far fewer cases of conflicts of law.

Domain names cannot be inherited, since only one person can become the domain name administrator on the basis of a contract entered into for the provision of the respective services (under part 1 of Articles 1112 and 128 of the Civil Law of the Russian Federation). The heir only needs to contact the registrar and re-register the domain under his or her name. This can be done within the time provided by law (based on Article 191 of the Civil Code of the Russian Federation in six months from the next day after the director's death) [1].

On the contrary, if a contract for the provision of services is entered into not with a natural person but with a legal person, regardless of the occurrence of death, the contract with the legal person remains and the civil public official continues to provide services. To end such an inheritance and establish its rights and obligations, it is necessary to provide the registry with a notarized death certificate of the former administrator. A prerequisite is the contractual availability of the ability to transfer the domain to a third part. The administrator of the domain name may offer at this time and contract the termination of the agreement in writing upon his death, thereby prohibiting the transfer of the domain. However, such provision may challenge in court. The contract cannot be extended for more than one heir, and if there are two heirs, one of them will have to write to transfer his rights to the other heir. In the event of a conflict between the heirs, to resolve it, it is necessary to apply to the judicial authority for recognition of the exclusive right to become the sole heir, the plaintiff presenting a strong argument, the assembly responds to the request (e.g., he

[3].

does the work in collaboration with the former admin). The court order is then included in the package of documents. It is common for a notary to waive the right to bequeath him, so an heir can present a notarized death certificate of the administrator and, upon his written request, the company Registrar is obliged to cancel the domain name.

Thanks to scientific and technological progress, the life of modern society has become much simpler, and at the same time, the latest «secrets» of civil science are appearing in modern reality, which requires there must be a law and a clear regulation of the actions of the legislature level. Each person accumulates certain values and goods during his lifetime.

From the provisions of the Civil Code of the Russian Federation, we already know that inheritance includes other things and property, property rights and obligations, as well as some digital assets (tokens, crypto currencies and domains). It is gratifying that the legislators did not stand still, but passed new legislative acts that provide for a new phase in the legacy and succession process of digital government.

Most notaries are against inheriting personal accounts on social networks, because they will contain invisible benefits. We recommend giving each account holder the right to choose and manage his or her account. It only makes sense to inherit topical blogs and business accounts, since they contain property rights unrelated to the testator's identity, e.g. money in a social media wallet; the result of intellectual activity (photo and/or video material, animated work, etc.). It is therefore possible to inherit certain permissions and, in these cases, the account itself.

The bonus is part of the rights under the bank deposit, account and/or loan agreement. Traditionally, a bank deposit cannot be inherited, it is closed, but the heir receives the funds from the deceased's account. The inclusion of corporate bonuses in inheritance is possible if the legislator recognizes these bonuses as a property, right (they are, after all, now eligible for incentives) and the public company will deduct bonuses by deadline.

Inheritance of SIM cards and subscriber numbers are carried out today by reregistering the owner, so it is enough to present the mobile operator with an identification document (passport of the citizen of the Russian Federation or another state) and a notarized death certificate of the deceased subscriber. Of course, the procedure is refundable in nature, but it is less expensive than the services of a notary.

The inheritance of crypto-assets and tokens is the most promising legal relationship. There are mechanisms such as: direct inheritance (the testator predetermined the fate of his assets); proof of the heirs of the testator's ownership of this property; key transfer by storing in a bank cell (in the future, the possibility of creating a digital archive is considered); deferred payment; multi-signature wallet.

As for domain names, whose legacy is being actively practiced in our country, we have outlined the most interesting points of this procedure. If there is more than one heir, there are two ways to develop the facts: an heir voluntarily waives the written claim and transfers his rights to another heir, or a situation of conflict will arise between the heirs and their settlement is necessary to hold judicial power. It is common for a notary to waive the right to bequeath him, so an heir can present a notarized death certificate of the administrator and, upon his written request, the company Registrar is obliged to cancel the domain name.

Summarizing the above, the bottom line is: the issue of digital rights inheritance occupies one of the most prominent positions in our state. It seems necessary to legalize the legal status of digital assets, as well as include comprehensive regulation of inheritance procedures.

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