Abstract
Purpose of this research is to explore to what extent it is possible and useful to collect debts by sale of intellectual property rights (ip-rights) under execution in the Netherlands governed by the laws of the Netherlands. Due to their specific characteristics ip-rights “behave” differently than other property rights or
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goods, consequently some ip-rights are a less obvious/less suitable object for debt collection. The possibilities of and considerations for the use of ip-rights for debt collection are examined, first addressing the issues “security interests” and “seizure” under the laws of the Netherlands in general, subsequently addressing these issues with respect to the respective ip rights. Under the laws of the Netherlands all written ip rights may be pledged and seizure is possible for almost all written ip rights (only the moral rights are excluded). However, pledging or seizing ip-rights under the laws of the Netherlands is not a straightforward, uniform exercise. In this research the IP Supplement to the UNCITRAL Legislative Guide on Secured Transactions (2011) (UNCITRAL-regime) are used as reference point: relevant topics for this research in the UNCITRAL-regime are compared with the laws of the Netherlands. The research concludes with recommendations that aim to promote the use of ip-rights for debt collection. Summarized, I recommend implementation of the UNCITRAL regime, leading to uniform legislation: - on the creation of a security right in ip rights and the seizure of ip rights; - on the effectiveness of security rights in and seizures of ip rights against third parties, including the establishment of a (security) registry for (all) ip rights; - on the obligations of an ip owner after the security right in an ip right was created or after the ip right was seized; - on the method of the foreclosure sale of ip rights and the possibility to sell all ip rights in a manner other than in public. Furthermore, I recommend: - to introduce a (general) provision that stipulates that all ip rights are transferable; - to remove/limit the exceptions regarding moral rights; - to stipulate explicitly that ip rights, in spite of their immaterial nature, may be sequestrated and/or may be brought by the creditor beyond the debtor’s power of disposal within the scope of a foreclosure sale, in which respect the custodian will obtain all information regarding the ip right and is entitled to take all necessary measures required to preserve that ip right or the value thereof. And in conclusion the consequences of the specific characteristics of ip rights may be limited if the legal practice - will actually use ip rights for debt collection; - will learn to assess the status of ip rights more accurately by using more or less standardized due diligence questionnaires as a consequence whereof uncertainties associated with the nature of ip rights will decrease; - will assess the (lasting) value of ip rights more accurately by using ip due diligence and valuation experts using a specific valuation approach tailored to ip rights.
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