Friday 9 July 2010

UNCITRAL: now there's a Supplement

According to a United Nations Commission on International Trade Law (UNCITRAL) press release, on 29 June the "UNCITRAL Legislative Guide on Secured Transactions, Supplement on Security Rights in Intellectual Property" was adopted. This Supplement is the third text prepared by the Commission in the field of secured transactions law, following (i) the UNCITRAL Legislative Guide on Secured Transactions and (ii) the United Nations Convention on the Assignment of Receivables in International Trade (2001).

The Commission's Working Group VI (Security Interests) has been working towards this draft since 2007, recognizing that States need guidance as to how the recommendations of the Guide apply to IP and as to the adjustments they must make in order to avoid inconsistencies between secured transactions law and law relating to intellectual property. The Working Group, after five one-week sessions, completed its work in February 2010 and the Commission, at its forty-third session, finalized and adopted the Supplement. According to the press release
"The overall objective of the Guide is to promote low-cost credit by promoting access to secured credit. In line with this objective, the Supplement is intended to make secured credit more available and at lower cost to intellectual property owners and other intellectual property right holders, thus enhancing the value of intellectual property rights as security for credit. The Supplement, however, seeks to achieve this objective without interfering with fundamental policies of law relating to intellectual property. States are recommended to utilize the Guide and the Supplement to assess the economic efficiency of their secured transactions regimes as well as their intellectual property regimes and to give favourable consideration to the Guide and the Supplement when revising or adopting legislation relevant to secured transactions and intellectual property ...".
I've not yet read this Supplement, but wonder if anyone who has read it might be able to shed any light on its content and on whether it has addressed the anxieties that IP owners have consistently expressed in the recent past over the apparent mismatch between lenders' and IP-ers' interests. A 17 March draft is available on the UNCITRAL website here, and it has various appendices which are listed here, together with comments by governments and international organisations (including WIPO), but I don't know if these represent the final form of the Supplement. Can any reader please advise?


Anonymous said...

I gave up on it a few months ago. The process was a model of non-consultation,non-transparency, and extremely undue complexity. No doubt oodles of frequent flyer points for those involved in it.

If anyone ever reads it - that is if they can find it - they will probably have more rather than less anxiety.

Norman said...

I don’t believe that a final version of the Annex is available as the last outstanding issue, choice of law, was only decided at the Commission meeting itself.

I may be overlooking something, but I would say that on the controversial issues the recommendations have been favourable or at least acceptable to IP interests. In the Guide itself Rec. 4(b) recommends that in the case of conflict between the Guide and IP law, IP law trumps. Rec 77(a) recommends that registration in an IP registry, when one exists, trumps registration in the general security rights registry. The recommendations in the Annex relating to re-registration on transfer, acquisition financing and choice of law are all (in my view) favourable to IP interests. The least satisfactory recommendation is that relating to the ordinary course of business rule. Ideally the ordinary course of business rule would not apply to IP licences at all. However, the Guide Rec 81(b)(c) provides a broad general rule applicable to licences of both tangible goods and intangibles generally. There was also significant pressure from some for an even stronger rule that would “protect” end-users of off-the-shelf software when they “purchased” in what they believed to be a legitimate transaction. The recommendation in the Annex says in effect that the ordinary course rule may be avoided by properly structuring the security agreement. This is not ideal, but it is certainly better than the realistic alternatives.

Norman said...

A pre-release version of the IP Supplement is now available: