Security Rights in Intellectual Property in Australia

Abstract

This Chapter explores how consensual security rights over intellectual property (IP) operate in Australia under the Personal Property Securities Act 2009 (Cth) (PPSA). While outlining the various types of IP recognised in Australia, the Chapter focuses on copyright, patents and registered trade marks. As personal property within the scope of the PPSA, these are each available as collateral. Moreover, some dealings with them may also constitute security interests within the expanded statutory definition of that term, albeit lacking a security function. The Chapter examines how security arrangements over IP are typically structured in Australia as part of more general security interests over present and future acquired property and give rise to property and contractual rights for both the secured party and the grantor. It also analyses how a security interest must attach, be enforceable against third parties and perfected in order for the secured party to obtain optimal protection, while identifying the circumstances in which that secured party must nonetheless yield to third parties claiming a higher ranking priority or a right to take free of the security interest. Remedies available to the secured party in the event of a debtor’s default are also briefly considered.