I had the pleasure of interviewing Spyridon Bazinas, former Senior Legal Officer, International Trade Law Division, Office of Legal Affairs (which serves as the Secretariat of UNCITRAL), current Visiting Professor at the University of Vienna Law School (Juridicum).
Spyridon wrote the chapter of the book on Security Interests in Intellectual Property under the United Nations Commission on International Trade Laws Model Law on Secured Transactions. Here is a teaser…
KH: What does your chapter cover?
SB: It covers the key issues with respect to security interests in IP addressed in the UNCITRAL Legislative Guide on Secured Transactions: Supplement on Security Rights in Intellectual Property (2010).
KH: How can changes to a country's secured transactions' legal regime help companies leverage their IP and increase innovation?
SB: A legal regime that allows current or prospective intellectual property right holders to use their current or future IP as collateral for credit is likely to increase the availability of credit to IP right holders and decrease its cost, and thus facilitate innovation and with it economic development. The main reason for this is the reduction of the risk of non-payment since, in the case of default of the intellectual right holder-borrower, the secured creditor may sell the economic rights derived from the intellectual property or license it to obtain payment. It is essential though that this type of intellectual property financing takes place within the boundaries of the fundamental principles of IP law.
KH: According to your experience, what are the biggest challenges with IP secured transactions?
a. Is IP an asset and, if so, how can its value be established?
b. Can a security interest be established in IP, present and future?
c. How can a security interest in IP become effective against third parties? If by registration, what kind of registration, notice or document registration, what is the legal consequence of registration, creation or third-party effectiveness, and in what type of registry should registration take place, in an IP registry or the general security interests registry?
d. How can the priority of a secured creditor with a security interest in IP be established as against competing secured creditors, buyers or lessees, preferential creditors, judgement creditors and the insolvency administrator in the insolvency of the IP right holder-borrower who granted a security interest in its IP?
e. What is the law applicable to the creation, third-party effectiveness, priority and enforcement of a security interest in IP?
f. What is the treatment of security interests in rights under IP licences in insolvency?
KH: Which of those issues does the UNCITRAL IP Supplement address?
SB: All of them. The UNCITRAL IP Supplement addresses all of the issues that need to be addressed in a modern law that deals with security interests in movable property, including in IP. In particular, the UNCITRAL IP Supplement breaks new ground with respect to the coordination between IP, secured transactions law, private international law and insolvency law.