For many years, one of the few New Year’s resolutions I have consistently managed to keep has been reading at least 52 books a year.
This year I made the rules slightly more generous and decided that audiobooks count as well. I am not entirely sure why I resisted this for so long. Listening carefully to a 20-hour history book hardly seems like less of an intellectual commitment than reading a much shorter one. In my case, audiobooks also frequently accompany long walks and help me stay in touch with English, German and other languages.
There is, however, one side effect of this habit.
I have accumulated quite a lot of books.
My Kindle library now contains more than 1,000 ebooks. I also have around 500 audiobooks, mostly on Audible. That gives me something approaching a personal library of 1,500 titles.
Except that recently I began to wonder whether the word library is really appropriate.
What exactly do I own?
If I had 1,500 paper books standing on shelves around my house, the situation would be reasonably straightforward.
The books would be mine. I could lend them, give them away, sell them or leave them to somebody in my will. I have four sons, so after my death they could decide which books they wanted to keep, divide them between themselves, donate some and probably wonder why their father needed quite so many books about history, languages and obscure corners of European politics.
The physical objects would remain.
My Kindle library is different.
As a lawyer by education, I eventually did what lawyers tend to do when faced with an interesting question: I looked at the terms and conditions.
And immediately encountered a sentence which changes the nature of the whole transaction. Amazon’s current Kindle Store Terms of Use say that Kindle content is “licensed, not sold”.
That distinction is easy to overlook because everything about the purchasing process encourages us to think in the language of ownership. We click Buy now. The book appears in My Library. The payment is taken much as it would be when we buy a physical book. Years later, we can usually still open it.
Yet legally the arrangement is quite different. The Kindle terms grant the user a limited right to use the digital content for personal, non-commercial purposes. They also state that, unless specifically allowed otherwise, users may not sell, distribute, sublicense or otherwise assign their rights to Kindle content to another person.
That is quite a long way from owning a paperback.
Audible works in much the same way
The situation is similar with audiobooks. Audible’s current Purchase Terms and Conditions describe purchased audiobooks as being provided under a limited, revocable, non-exclusive and non-transferable licence for personal use.
Again, my everyday experience does not really feel like renting something. I have paid for hundreds of audiobooks over many years. They remain visible in my library and, in most cases, I can download them whenever I want.
Yet Audible itself makes an interesting distinction. Its terms explain that purchased content will generally remain available in an account, while also warning that it may become unavailable because of licensing restrictions or other reasons. Audible even encourages users to download purchased content and make a backup copy.
That sentence alone made me think differently about the permanence of a digital library.
With a physical book, preservation is largely my problem. If I keep it dry, avoid fire and persuade my children not to draw dinosaurs on the pages, there is a reasonable chance that it will still exist decades later.
With digital content, preservation depends on several additional layers: my account, the platform, its software, contractual rights, digital rights management and agreements between publishers and distributors.
But I live in Europe. Does EU law change anything?
At first, I assumed there was another obvious complication: Amazon is an American company, while I live in the European Union.
The reality is more interesting.
The company behind the Amazon group is American, but the current UK Kindle terms identify the contracting party as Amazon Media EU S.à r.l., based in Luxembourg. More importantly, using an international platform does not simply remove the consumer protection of the country where the consumer lives.
Article 6 of the Rome I Regulation provides special rules for consumer contracts. In broad terms, where a trader directs its activities to the consumer’s country, a contractual choice of another law cannot simply deprive the consumer of mandatory protections that would otherwise apply under the law of the consumer’s habitual residence.
The European Union has also introduced specific legislation covering digital content. Directive (EU) 2019/770 on digital content and digital services covers such things as supply, conformity, updates, modifications and remedies available to consumers. Ebooks are expressly included among the types of digital content contemplated by the Directive.
So European consumers are certainly not without protection.
There is, however, a problem. These rules are mainly designed to answer questions such as: what happens if the digital product is not supplied, does not work as promised or stops conforming to the contract?
They do not provide a simple answer to another question:
What happens to a library containing 1,500 digital licences when the person who acquired them dies?
Enter succession law
At that point, the subject moves from consumer law towards inheritance law — and things become even less tidy.
Succession law still varies considerably between countries, although the EU has rules dealing with cross-border estates. The European Commission’s overview of succession and wills explains that, for participating EU countries, a cross-border succession is generally handled under one law and by one authority. A person may also, in certain circumstances, choose the law of their nationality to govern their succession.
Those rules can determine which law governs an estate. But we still have to answer the earlier question: what exactly is the asset?
A paper book is property. A bank account contains money belonging to the account holder. A Kindle book, according to the platform contract, is access to copyrighted digital content under a personal licence which the contract says cannot normally be assigned to somebody else.
That does not automatically settle every possible inheritance question. The interaction between platform contracts, national succession law and mandatory consumer protection can be complicated, and the answer may depend on the jurisdiction and the specific service involved.
But it certainly means that inheriting a digital library is not as straightforward as inheriting the shelves in somebody’s study.
Can I simply leave somebody my password?
This is probably the most obvious practical response.
I could write down the credentials to my Amazon account and leave them to one of my sons. Technically, that might allow somebody to continue accessing the books.
Legally and practically, however, access to an account and ownership of the rights associated with that account are not the same thing.
There are also obvious security issues. An Amazon account may contain far more than books: payment information, addresses, order history, personal data, subscriptions and access to other services.
Leaving somebody the password therefore feels less like bequeathing a bookshelf and more like handing over the keys to a considerable part of one’s digital life.
We may need to start thinking about digital estate planning
This is the point where my curiosity about ebooks turns into a much broader question.
Over the last few decades, an increasing part of our lives has moved from physical objects to digital accounts.
Books became Kindle libraries. CDs became music libraries and streaming services. Computer games moved from boxes on shelves to Steam and similar platforms. Photographs moved from albums to cloud storage. Documents, correspondence and memories moved to Google, Microsoft and Apple accounts.
Some of those things have substantial financial value. Others have little monetary value but enormous personal importance.
And yet I suspect that many of us who have made at least some arrangements concerning houses, savings and other traditional possessions have made practically no arrangements for our digital lives.
I certainly haven’t.
A library used to outlive its owner
Perhaps what fascinates me most is how dramatically this changes something that humans have taken for granted for centuries.
A personal library was traditionally something that could outlive its creator. Books passed from parents to children. They were sold, donated to universities, inherited by collectors or dispersed among relatives. Sometimes the history of the individual copies became almost as interesting as the text itself: a handwritten note, dedication or annotation could survive several generations.
When we buy an ebook, we gain enormous advantages. My entire library travels with me. I can search it in seconds. I can carry hundreds of books on a device weighing less than a single hardback. I can enlarge the text, consult a dictionary instantly and synchronise notes and highlights.
I have absolutely no intention of abandoning digital books.
But perhaps one of the prices of this convenience is that our libraries no longer possess quite the same independence from us.
My collection of 1,500 books may look permanent when I open the Kindle or Audible app. Legally and technologically, however, it is partly a collection of personal permissions maintained by companies, servers and contracts.
That is a rather different kind of library.
So, who will inherit my books?
For now, I do not have a satisfactory answer.
And perhaps that is the point.
The first useful step in digital estate planning may simply be realising that there is something to plan. The EU’s Your Europe guide to planning a cross-border inheritance is a useful starting point for the succession side of the question, but each digital service also has its own terms.
With four sons, I have no shortage of potential beneficiaries.
Whether the various platforms agree that I have anything capable of being passed on to them is a rather more complicated question.
Have you ever thought about what should happen to your Kindle books, Audible audiobooks, Steam games, photographs, cloud files or other digital possessions after your death?
And have you actually made any arrangements for someone to inherit — or at least gain access to — them?
The featured photograph shows books at the Kazimiera Iłłakowiczówna Museum in Poznań. Photo by Stanisław Czech.
This article is a personal exploration of digital ownership and inheritance and is not intended as legal advice.