Monday 11 August 2008

IP securities Down Under

Lorin Brennan has been working hard on a Commentary on the Australian Personal Property Securities Bill 2008. The IP community has until THIS FRIDAY, 15 August 2008, to submit comments and Lorin is anxious to receive comments on his commentary (he writes "identifying any errors would be most welcome").

For the record, Australia is one of the first countries to attempt to amend its secured financing law by reference to the UNCITRAL Guide on the securitisation of intangibles but without the benefit of the Annex relating to IP rights. The contents of the Commentary go like this:
II. Under Section 5 a Secured Creditor Should Be Treated as a Rights Holder of Intellectual Property
III. Section 21 Should Clarify Whether It Intends to Treat a Traditional Assignment of Intellectual Property as a Security Interest.
IV. Section 30 Should Not Allow a Security Interest in Tangible Property to Apply Automatically to “Related” Intellectual Property.
V. Sections 45 & 47 of the Bill Should Clarify the Law Applicable to a Security Interest in Intellectual Property.
VI. Section 69 Should Not Require a Secured Creditor To Make Continuous Filings Against Subsequent Transferees to Maintain Perfection of Its Security Interest.
VII. Sections 82 & 91 Should Not Allow A Person Who Acquires An Interest “In the Ordinary Course” To Take Free of an Intellectual Property Security Interest.
VIII. Sections 92 Should Clarify The Relationship Between The Priority Rules in the Guide with Those in the Intellectual Property Statutes.
IX. Section 116 Should Not Allow Transfers of Intellectual Property Licences Despite Contrary Licence Terms.
X. Section 113 Should Not Allow An Execution Creditor To Gain Automatic Priority Over An Unperfected Security Interest Without Registering In an Applicable Intellectual Property Registry".
If you've got some time to look at this document, peruse its contents and Lorin's comments on them, email me here and I'll send it to you a.s.a.p. Comments should be sent to Lorin here. Also, if you have any pertinent comments, I'll be happy to post them on this blog. Finally -- this blog has quite a few Australian readers: this is a great opportunity for you to take the initiative!

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