Edited by Paul Torremans
Chapter 12: The creation and enforcement of security interests in intellectual property rights: Choice-of-law issues
The issue of security interests in intellectual property (IP) rights has attracted the interest of industry and academics in recent years due to the extraordinary development of financial markets, which has led to the opportunity and the need for operators to have access to international financing sources. Since a few isolated cases dating back to the 19th century, the use of IP rights as collateral for obtaining financing has been significantly increasing in the last 30 years, for example through the collateralization of future revenues deriving from movies, catalogues, concerts, trade marks, patents, and so on. As regards the existing legal framework, while national legislatures rarely address security interests in IP rights, specific provisions addressing the law applicable to such security interests are even more scarce. Recently, however, initiatives have been taken at the international level, which are leading to the development of legislation, practice and scholarly doctrine on this matter. In particular, a specific initiative addressing security interests in IP rights has been carried out recently within UNCITRAL, in Working Group VI (Security Interests), which has dedicated to security interests in IP rights a specific supplement to the Legislative Guide on Secured Transaction, including a choice-of-law provision. Moreover, certain institutions and working groups, such as the American Law Institute (ALI) and the European Max Planck Group on Conflict of Laws in Intellectual Property (CLIP), have elaborated principles on matters of IP rights which also address, albeit partially, issues concerning the law applicable to security interests in such rights.
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