Security Rights in Intellectual Property in Estonia
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This paper provides a theoretical overview of and practical guidance on the use of intellectual property (IP) rights as security in Estonia. It begins with an overview of the different IP rights in Estonia and the categories of security rights that can be granted over them. Like in other European countries, there are both non-registered and registered IP rights in Estonia. The different types of IP rights can be categorized as either copyright and related rights or as industrial property rights. In addition to national IP rights, EU-wide IP rights such as EU trademarks and Community also have effect in Estonia. The main ways to create a security right over an IP right are by establishing a pledge over IP rights or by transferring the IP rights as security. An IP right may be encumbered with a pledge through the establishment of a registered security over movables (for registered IP rights) or a pledge of rights (for non-registered IP rights). In addition, non-registered IP rights can also form part of a general commercial pledge, which is established over the entire movable property of an enterprise.
The paper then examines the creation and effect of the relevant security rights. With regard to the creation of security rights, the structure and content of the necessary transactions are described, as well as the conditions for the perfection of the security rights. The effect of the security rights is analysed, starting from the rights of the security holder before default and continuing on to the priority of different security rights and the enforcement of the different types of security rights. In analysing the issues of enforcement, distinction is made between enforcement in bankruptcy proceedings and enforcement outside insolvency. The practical issue of the costs of creating and of enforcing the relevant security rights is also addressed.
The paper ends with an overview of the theoretical problems and practical difficulties involved in taking security over IP rights, trying to explain the relative unpopularity of this method of securing debts in Estonia. At the time of writing, there were no proposals for a law reform relating to security over IP rights either in Estonia or at the EU level. However, the need for reform in Estonia is expected to be considered at the time of drafting an Industrial Property Code in the near future.
- Kõve V (2014) §§ 279, 280. In: Varul P, Kull I, Kõve V, Käerdi M, Puri T (eds) Asjaõigusseadus II. Kommenteeritud väljaanne. Juura, TallinnGoogle Scholar
- Volens U (2014) §§ 297, 298. In: Varul P, Kull I, Kõve V, Käerdi M, Puri T (eds) Asjaõigusseadus II. Kommenteeritud väljaanne. Juura, TallinnGoogle Scholar