Studies On Security Rights In Intellectual Property

Along with the development of economy, enterprises’ need for financing is increasingly pressing. A significant part of enterprises’ value lies in their intellectual property rights, which can be exploited to effectively address the financing need of enterprises. According to current laws and regulations of China, the pledge of intellectual property rights are usually dealt with by employing rules for the pledge of chattels and the pledge of rights. Up to now, there is no completed system of secured transactions established specifically based on the features of the pledge of intellectual property rights. Being aware that an efficient system of secured transaction is of critical significance to all countries, the United Nations Commission on International Trade Law (UNCITRAL) has spent years of hardworking to codify a concise and efficient model law on secured transactions. By December 2014, Working Group Ⅵ of UNCITRAL has assembled four sessions discussing the formulation of the model law which is still under deliberation. At present the only production is the Draft Model Law on Secured Transactions which is to be further discussed and refined at the planned session during April 2015. In many aspects the Draft Model Law differs from the current Chinese legislation. It represents recent trends in the development of systems about secured transactions of intellectual property. Instead of restricting security rights in intellectual property to a single type of security right, the Draft Model Law aims to build up a comprehensive, unified and functional system of secured transactions, which can be used as reference for the legislation of China.This thesis consists of three parts:Part Ⅰ explains concepts related to security rights in Intellectual property and analyses the basic features of intellectual property rights. It is pointed out that the characteristics of security rights in Intellectual property must be taken into consideration in designing relevant systems and it is inappropriate to apply general rules for the pledge of chattels and the pledge of rights without distinction.Part Ⅱ gives a detailed account of setting, registration, priority and enforcement system in relation to security rights in Intellectual property. This part also elaborates on the present system and arrangements of China and compares them with the Draft Model Law.Part III concludes with the significance of UNICITRAL codifications as reference for China’s legislation.By referring to the updated legislative research of UNCITRAL and comparing the current system of China, this thesis puts forward advice on the improvement of security rights in Intellectual property. The creative value of this research lies in the following aspects. First, the thesis contains a systematic account of the status quo of China’s legal system of the pledge of intellectual property rights, covering setting, registration, priority and enforcement。It then analyses the shortcomings of setting and registration systems, demonstrating the lacking of systems of priority and enforcement. Second, the research expounds on the Draft Model Law’s designing of the system of security rights in Intellectual property and summarizes its striking differences from domestic legislation. Third, by comparing the Draft Model Law with domestic legislation, this thesis sets forth the proper way of drawing lessons from the Draft Model Law. It is suggested that although completely absorbing the formulation of the Draft Model Law and thoroughly overthrowing the present system of security rights will be helpful for the reform of China’s current system of security rights in Intellectual property, this will require a huge workload and is difficult to achieve at the moment. Therefore, it is supposed to first seek improvements to remove existing problems related to security rights in Intellectual property and then take gradual steps based on the previous results, finally leading to the unified law on secured transactions.