Intellectual Property Rights and the PPSA: Challenges for interest holders, creditors and practitioners

The Australian Personal Property Securities Act (PPSA) has made significant inroads into traditional norms of dealing with intellectual property (IP) ownership and rights since its introduction in January 2012, the transitional period of two years having ended on 31 January 2014.Registration requirements under the PPSA have significantly affected a range of commercial transactions dealing with personal property, including the interests of lessors and lessees, consignors and consignees, sellers and buyers, licensors and licensees, and lenders and borrowers. This article considers how IP is treated under the PPSA, and how owners and disseminators of IP (and the practitioners who advise them) may deal with some of the challenges presented by the inclusion of IP rights under the PPSA. IP occupies a unique space in the PPSA, and Part I of the article examines the significance and scope of IP inclusion under the PPSA. Part II sets out how a “security interest” may arise in commercial dealings in respect of copyright, patents, trademarks and designs, and the PPSA requirement of “perfecting” such interests for maximum property security. Part III expands on potential problem areas in implementing these provisions in commercial dealings in the existing IP framework; and this article concludes with recommendations for protective measures in dealing with problematic issues.