Security Interests Over Intellectual Property
Journal of Intellectual Property Law and Practice, 2011, Vol. 6, No. 2
12 Pages Posted: 3 Jun 2012 Last revised: 21 Aug 2014
Date Written: January 1, 2011
The development of new technologies and the viral spread of communication networks have both rendered possible the rise of businesses that own very few tangible assets and owe their success almost exclusively to their intellectual property. Within this new socio-economic environment, often described as the ‘information society’, the ability to use intellectual property rights (IPRs) as the object of security interests is gradually being recognised as an attractive prospect, rather than a mere eccentricity.
This article does not aspire to paint a comprehensive picture of this topic, but rather focuses on certain specific legal issues arising from the interaction between intellectual property and security interest law. Firstly, it looks at the different real consensual security devices known to English law, and evaluates their compatibility and efficiency when used in conjunction with IPRs. Secondly, it focuses on the difficulties associated with the conveyance necessary for a mortgage, and the manners in which they have been addressed by the case law. Thirdly, it examines matters of registration and priority for security interests created over trade marks and patents, paying particular attention to the provisions regulating the specialist registers and their interaction with ss. 860, 861 and 869 of the Companies Act 2006. Fourthly, this article considers the specific difficulties that copyright raises due to its unregistered nature, analysing possible solutions within the existing legal framework. Finally, it outlines some observations on the existing proposals for legislative reform of English security interest law and, more particularly, on the employment of IPRs as collateral.
Keywords: IP rights, Intellectual property, secured transactions, security interests, pledge, mortgage, charge, register, UNCITRAL
JEL Classification: K11, K12, O34
Suggested Citation: Suggested Citation