Security Rights in Intellectual Property in Australia

McCracken, Sheelagh

doi:10.1007/978-3-030-44191-3_2

Security Rights in Intellectual Property in Australia

Sheelagh McCracken¹³

Chapter
First Online: 12 June 2020

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Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 45))

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.

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Notes

1.
Replacement Explanatory Memorandum to the Personal Property Securities Bill 2009 (Cth), Outline.
2.
Samwise Holdings Pty Ltd v Allied Distribution Finance Pty Ltd [2018] SASCFC 95, [39]. A review commissioned by the Commonwealth Government pursuant to PPSA s 343 (the Whittaker Report) has identified the need for further reform before these goals are fully achieved: Commonwealth of Australia (2015), paras 1.1–1.7.
3.
The law is generally stated as at 14 September 2018, the date to which this Chapter is revised.
4.
Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs & mgrs apptd) (2017) 52 WAR 90, [108].
5.
Australia is a federation of six states, with two federal territories. The power of the Commonwealth Government to legislate in respect of intellectual property arises from the Commonwealth of Australia Constitution Act s 51(xviii), which confers powers to make laws for the ‘peace, order, and good government of the Commonwealth with respect to…copyrights, patents of inventions and designs, and trade marks;..’. Additional powers may be sought under the more general powers with respect to ‘trade and commerce with other countries, and among the States’ (s 51(i)) and ‘external affairs’ (s 51(xxix)).
6.
The author gratefully acknowledges the very helpful comments of Dr. Fady Aoun of the University of Sydney Law School on Sect. 2.
7.
Copyright Act s 31.
8.
Copyright Act ss 85–88.
9.
Patents Act s 13(1).
10.
Trade Marks Act s 17.
11.
Registration generally takes effect from the filing date for the application for registration: Trade Marks Act s 72.
12.
Trade Marks Act s 20.
13.
Designs Act ss 5–6.
14.
Designs Act s 5.
15.
Circuit Layouts Act s 5.
16.
PBR Act s 11.
17.
Stewart et al. (2018), [1.1].
18.
Copyright Act s 8 makes clear that copyright subsists only under that legislation, subject to the prerogative rights of the Crown under s 8A.
19.
Copyright Act s 32.
20.
Copyright Act s 35(2).
21.
Copyright Act s 35((3)–(6).
22.
Copyright Act s 33. In respect of certain works which have not been published, performed or broadcast before the author’s death, time starts to run from the date of first publication, performance or broadcast.
23.
Copyright Act ss 89–90. It may subsist more generally in a recording or film by an Australian.
24.
Copyright Act s 91.
25.
Copyright Act ss 97–99. In the case of recordings and films made pursuant to an agreement for their making, ownership may be made subject to the agreement.
26.
Copyright Act ss 93–95.
27.
Patents Act s 61 (standard patent), s 62 (innovation patent).
28.
Patents Act s 65.
29.
Patents Act ss 67, 68, Part 3. See ss 7 and 18 for differences between a standard patent and an innovation patent, the latter involving an ‘innovative’ as distinct from ‘inventive’ step.
30.
Trade Marks Act s 20.
31.
Trade Marks Act s 72, unless a registration application is also made in other countries prescribed by the regulations.
32.
Trade Marks Act ss 72(3), 75.
33.
Patents Act s 189; Trade Marks Act s 22. See Sect. 2.3 for a description of the registers.
34.
Patents Act s 189(2A), s 3 and Schedule 1; Trade Marks Act s 22(2A), s 6. PPSA security interest means a security interest within the PPSA, other than a transitional security interest which is essentially a security interest created before the commencement of the PPSA on 30 January 2012. See Sect. 3.2 for discussion of these security interests.
35.
Patents Act s 189(3), (4); Trade Marks Act s 22(3), (4).
36.
Patents Act s 195; Trade Marks Act s 210. This does not, however, apply to PPSA security interests: Patents Act s 195(3); Trade Marks Act s 210(4).
37.
See https://www.ipaustralia.gov.au/about-us.
38.
Trade Marks Act s 207.
39.
Trade Marks Act s 69.
40.
Trade Marks Act s 113.
41.
Patents Act s 186.
42.
Patents Act s 187.
43.
Patents Act s 3, Schedule 1.
44.
Patents Regulations 1991, Regulation 19.1.
45.
The term ‘general law’ is used in this Chapter as a synonym for ‘common law’ in the sense of non-statutory law viz. common law and equity, as it is the term used by the PPSA, the primary statute regulating security interests over intellectual property: see Sect. 3.2. PPSA s 10 defines ‘general law’ as ‘the principles and rules of the common law and equity’.
46.
Copyright Act s 196(1); Patents Act s 13(2); Trade Marks Act ss 21, 106. The latter statute also makes clear that a registered trade mark can be assigned without goodwill.
47.
Gunning et al. (2016), para 19.35. This practice appears to have developed as a result of applications being themselves allocated serial numbers for the purposes of registration under the PPSA, as discussed in Sect. 4.1. For discussion of financing statements, see Sect. 5.3.
48.
PPSA s 10 ‘licence’, ‘intellectual property licence’, ‘personal property’. For conditions, see Sect. 3.2.
49.
See generally McCracken et al. (2017), Ch. 11, ‘Capacity and Authority to Borrow and to Grant Security’.
50.
Corporations Act s 124.
51.
PPSA s 10 ‘personal property’.
52.
PPSA s 8.
53.
PPSA s 10 ‘personal property’, ‘licence’. The desirability of this limitation has been questioned by the Whittaker Report (at para 4.4.3).
54.
PPSA s 10 defines ‘interest’ to include ‘a right in the personal property’. ‘Security interest’ is hereafter used in this Chapter to mean security rights.
55.
See Sect. 3.2.1.
56.
See Sect. 3.2.2.
57.
Although this term is not defined in the Dictionary in PPSA s 10, courts have interpreted it as signifying a consensual arrangement: see, for example, Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (2014) 49 VR 86.
58.
A pledge is not available as it requires possession and hence is restricted to property that has a physical manifestation: Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249. A lease is not available as it is defined by reference to goods. Hire purchase is typically also understood as confined to goods. Some categories overlap. Section 12(2) refers, for example, to an assignment and a transfer of title.
59.
See, for example, Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Ltd (2008) 246 ALR 361. It is sometimes described as an equitable assignment, but the stronger view is that such a description is inaccurate: see, for example, Tolhurst (2016), para 3.17.
60.
Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Ltd (2008) 246 ALR 361. The transfer may take place at law or in equity.
61.
Nonetheless, it is common practice to note the particular form of the interest in the charging clause. See, for example, Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs & mgrs apptd) (2017) 52 WAR 90. This becomes important, for example, to enforcement of remedies conferred by the security agreement: see Sect. 7. Sometimes the PPSA itself draws distinctions: see generally Loxton (2012).
62.
Pemberton and Chatwood (2010), p. 194. See also Shtein and Wong (2015), p. 20 referring to an assignment of copyright to a software distributor on the basis that copyright reverts on breach of a distribution agreement. The interest of the assignor must amount under the particular arrangement to an interest in property.
63.
Swinson and Howley (2010), Ch. 4.9, para 150.
64.
PPSA s 12(5)(a).
65.
PPSA s 10.
66.
Gilmore (1965), pp. 378–379.
67.
Whittaker Report, para 4.3.3, Recommendation 15.
68.
PPSA s 10 ‘account’. See also Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs & mgrs apptd) (2017) 52 WAR 90.
69.
Whittaker Report, para 7.1. See Whittaker (2013), and Loxton et al. (2018b).
70.
See Sect. 6.1.2.
71.
PPSA s 14(1), (2).
72.
Whittaker Report, para 5.1.2; Annexure C, 2d. In response, see Loxton et al. (2018a, b, c).
73.
Duggan and Brown (2016), paras 3.3, 3.4.
74.
Gunning et al. (2016), para 19.55.
75.
This adopts Canadian and New Zealand usage under equivalent legislation.
76.
This is an Australian term referring to all present and after-acquired property and arising from terminology used in the registration process.
77.
Gunning et al. (2016), para 19.55.
78.
See Sect. 3.2.1.
79.
PPSA s 105(1).
80.
The Whittaker Report points out that illustrations provided in the Replacement Explanatory Memorandum to the Personal Property Securities Bill 2009 overlook the requirement in PPSA s 105(1)(b) for a security interest over the intellectual property rights: Whittaker Report, para 9.3.4.3.1.
81.
See Sect. 3.1 regarding a practice of taking security interests over applications for registration.
82.
PPSA s 10 ‘intellectual property licence’.
83.
Under the Resale Royalty Right for Visual Artists Act 2009 (Cth), an artist may have a ‘right to receive resale royalty on the commercial resale of an artwork: ss 6, 12. Such a resale royalty right cannot be used as collateral as it is made inalienable: s 33.
84.
PPSA s 10 ‘intangible property’.
85.
See, for example, PPSA ss 105, 106. The fact that property regarded as intellectual property under general law falls outside this definition does not preclude that property from being the object of a security interest. A security interest is taken over personal property and personal property includes not only that intellectual property but other property falling outside that definition. It would be classified simply as ‘intangible property’. See generally Sect. 3.2.
86.
Whittaker Report, para 9.3.4.2, Recommendation 377.
87.
The Whittaker Report has recommended deletion of this right in the absence of any ‘cogent explanation’ for it: para 9.3.4.2.2, Recommendation 379. It would not, however, typically be assignable under general law.
88.
See Sect. 5.3.
89.
PPSA s 10 ‘serial number’.
90.
See Personal Property Securities Regulations 2010 (‘PPS Regulations’), Schedule 1, Part 2, 2.2. In a financing statement, they must be described by serial number when they are consumer property and may be so described when they are commercial property. See PPS Regulations [2.2(3)] for how they are described—for a patent or a trade mark, it is essentially the patent or trade mark number issued by IP Australia or if there is no number, the application number issued by IP Australia. In the case of a patent, a PCT number is used where neither of the numbers have been issued. PCT number is defined in (4) to indicate a certain international application number or in its absence, a specified international publication number.
91.
PPSA s 10. ABN is an abbreviation for Australian Business Number, which is a number identifying a business and is obtained through registration on the Australian Business Register.
92.
PPSA s 10.
93.
Gunning et al. (2016), para 19.20.
94.
PPSA s 10.
95.
PPSA s 32(1)(b).
96.
PPSA s 31(1), (1)(a), (3).
97.
PPSA s 31(1)(d).
98.
PPSA s 10.
99.
See Sect. 3.2.1.
100.
Re Maiden Civil (P&E) Pty Ltd; Albarran v Queensland Excavation Services Pty Ltd (2013) 277 FLR 337, although the proposition was made obiter. See generally Sect. 3.2.4.
101.
See Loxton et al. (2018a, b, c).
102.
This categorisation has been accepted in relation to equivalent legislation in Canada: see, for example, Bank of Montreal v Innovation Credit Union [2010] 3 SCR 3, [42].
103.
Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs & mgrs apptd) (2017) 52 WAR 90. This applies even where the security interest is expressly described as a ‘floating charge’. For attachment criteria, see Sect. 5.1.
104.
PPSA s 80. Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs & mgrs apptd) (2017) 52 WAR 90.
105.
The Whittaker Report noted, and agreed with, opinions that this section was ‘unlikely to be engaged’, given that a licensor is not generally bound by a security interest granted by a licensee. It recommended its removal from the legislation unless good reasons for its retention could be advanced: Whittaker Report, para 9.3.4.4, Recommendation 381.
106.
PPSA s 18(2), (4) respectively. ‘Security agreement’ is defined generally as ‘an agreement or act by which a security interest is created, arises or is provided for’: PPSA s 10.
107.
PPSA s 257.
108.
PPSA s 110. See Sect. 7.
109.
PPSA s 79.
110.
Gunning et al. (2016), para 19.40.
111.
See Sect. 2.3.
112.
IP Australia, ‘Auditing your IP’, available at www.ipaustralia.gov.au.
113.
IP Australia, ‘Auditing your IP’, available at www.ipaustralia.gov.au. It identifies ‘AASB 138: Intangible Assets; AASB136: Impairment of Assets; Accounting Interpretation 132: Intangible Assets website costs’.
114.
PPSA s 19.
115.
PPSA s 20.
116.
PPSA s 21(1)(b). See PPSA s 21(1)(a) for confirmation that perfection can occur automatically by legislative force in various provisions, either absolutely or for a temporary period.
117.
Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs & mgrs apptd) (2017) 52 WAR 90, [108].
118.
PPSA Part 2.6. See Sect. 6.
119.
PPSA Part 2.5. See Sect. 6.
120.
PPSA s 267, subject to s 268.
121.
One court has suggested obiter a further implied requirement; namely that there should be a security agreement: Dura (Australia) Constructions Pty Ltd (in liq) v Hue Boutique Living Pty Ltd (2014) 292 FLR 114.This is clearly not required by the actual wording. The fact that the term ‘transaction’ in s 12(1) requires an agreement between the parties may be sufficient: see Whittaker Report, para 5.1.4.
122.
PPSA s 10.
123.
PPSA s 19(2)(a).
124.
PPSA s 19(5).
125.
Loxton et al. (2018a).
126.
Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs & mgrs apptd) (2017) 52 WAR 90.
127.
Copyright Act s 196(3).
128.
Patents Act s 14(1). Cf. Trade Marks Act s 109 which rather requires an assignment of a registered trade mark to be recorded on the register.
129.
‘Security agreement’ includes ‘an act by which a security interest is created, arises or is provided for’: PPSA s 10.
130.
PPSA s 258 does not appear to apply. Canadian commentators suggest avoiding equivalent conflict under Canadian legislation by recharacterising the security interest as a charge: Cuming et al. (2012), p. 715. However, as noted in Sects. 3.2.4 and 4.3.1, recharacterisation in Australia remains a matter of some debate.
131.
Bankruptcy Act 1966 (Cth) s 58.
132.
Corporations Act s 474.
133.
PPSA s 20(1)(b)(iii). Alternative means of possession and control are generally not available in the context of intellectual property or related rights as they are not susceptible to possession or control. Possession generally requires the collateral to have a physical manifestation, in the absence of statutory direction: Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (in liq) (recs & mgrs apptd) (2017) 254 FCR 559 (but see PPSA s 24(5) for possession of electronic chattel paper). Control is only available with respect to very limited forms of collateral: PPSA s 21(2)(c).
134.
PPSA s 10.
135.
PPSA s 20(2)(a). See Citadel Financial Corporation Pty Ltd v Elite Highrise Services Pty Ltd (No 3) [2014] NSWSC 1926.
136.
PPSA s 10 ‘writing’. Carrafa, Goutzos & Lofthouse (liq of Relux Commercial Pty Ltd) (in liq) v Doka Formwork Pty Ltd [2014] VSC 570.
137.
PPSA s 20(6).
138.
Whittaker Report, para 9.3.4.3, Recommendation 380. It views it as inconsistent with Recommendation 243 of the UNCITRAL Legislative Guide on Secured Transactions, Supplement on Security Rights in Intellectual Property (2011), which advises that security rights in tangible assets should not extend to the intellectual property and vice versa. PPSA s 105 does however contemplate security interests over both the goods and the intellectual property.
139.
PPSA s 33(1)(a) perfects a security interest in proceeds if the security interest in the original collateral is perfected by a registration that describes the proceeds in accordance with the regulations.
140.
PPSA s 21(1)(b), s 21(2)(a). Once again, the alternative methods of taking possession and control are not available, as intellectual property is generally not capable of possession or control (subject to PPSA s 24(5) regarding possession of electronic chattel paper).
141.
PPSA s 21(4).
142.
PPSA s 21(3).
143.
PPSA s 151. There is a civil penalty if this requirement is breached.
144.
PPSA s 153.
145.
See Sect. 6.2.
146.
PPSA ss 164, 165. The example of the error in the grantor’s details assumes the collateral is not required to be described by serial number e.g. commercial property. See generally Re OneSteel Manufacturing Pty Ltd (admins apptd) (2017) 93 NSWLR 611.
147.
PPS Regulations, Schedule 1, Part 2 [2.2]. See Sect. 4.1 for discussion of ‘consumer property’.
148.
Corporations Act s 588FL, subject to s 588FN. Re Accolade Wines Australia Ltd [2016] NSWSC 1023. See also Re Carpenter International Pty Ltd (2016) 307 FLR 37. Failure to comply may lead to the security interest vesting in the company if the company becomes insolvent within 6 months of the date of registration. The Whittaker Report has recommended that s 588FL be repealed: Recommendation 362.
149.
See https://www.ppsr.gov.au/fees. There are additional fees for amending a financing statement. It is not possible to estimate the costs involved in creating or enforcing security rights as they depend on a range of factors which vary according to the complexity of the particular transaction and the extent to which legal and other professional advice is sought.
150.
See Sect. 2.3.
151.
Trade Marks Act s 109.
152.
Trade Marks Act Part 11, s 113. See Davison et al. (2016), para 4.19.
153.
Trade Marks Act s 116.
154.
Patents Act s 187.
155.
Patents Regulations 1991, Regulation 19.1(2) requires proof of entitlement to the ‘reasonable satisfaction of the Commissioner’.
156.
Patents Act s 189(2A); Trade Marks Act s 22(2A). See Sect. 2.2.2.
157.
Patents Act s195; Trade Marks Act s 210. See Sect. 2.3.
158.
See Explanatory Memorandum to the Personal Property Securities (Consequential Amendments) Bill 2009 Schedule 2, paras 18, 20, 22, 24 with respect to patents; paras 36, 38, 41, 48 with respect to trade marks.
159.
Explanatory Memorandum to the Personal Property Securities (Consequential Amendments) Bill 2009 Schedule 2, para 35.
160.
Swinson and Howley (2010), para 4.9.1350.
161.
See, for example, Chambers (2011). For some emerging concerns regarding trade marks, see Burrell and Handler (2016).
162.
Swinson and Howley (2010), para 4.9.1500.
163.
See PPSA Part 2.5 for taking free rules, and Part 2.6 for priority rules.
164.
Whittaker Report, para 7.7.1, Recommendation 220. There is as yet no Australian case law on this point.
165.
Another example is the position of the execution creditor, who is given priority over an unperfected security interest in particular circumstances: PPSA s 74.
166.
PPSA s 267. There is an exception under s 268 for security interests constituted by a transfer of chattel paper or a transfer of an account where those transfers have no security function.
167.
Corporations Act s 588FB. See generally McCracken et al. (2017), paras 14.390–14.470.
168.
PPSA s 61.
169.
PPSA s 55(3).
170.
While PPSA s 55(3) does not deal expressly with this situation, its language does not suggest any qualification.
171.
PPSA s 55(2).
172.
See Sect. 5.1.
173.
Replacement Explanatory Memorandum to the Personal Property Securities Bill 2009, Ch. 2, para 110.
174.
This is recommended by the Whittaker Report, para 7.7.2 Recommendation 221.
175.
PPSA s 55(4).
176.
PPSA s 55(6); s 56.
177.
PPSA s 55(5)(a). If a security interest is perfected by force of the Act, it is the earlier of the date of that automatic perfection and the date of registration: s 55(5)(c).
178.
See Sects. 6.1.2 and 6.1.3. Intellectual property is incapable of control (see PPSA s 21(2)(c)) and hence incapable of attracting the overriding priority afforded to security interests over property perfected by control under PPSA s 57.
179.
See Sect. 3.2.3. PPSA s 14(2) excludes an interest in original collateral that is chattel paper.
180.
PPSA s 62(2)(b)(ii); s 62(3)(b)(ii).
181.
PPSA s 62(2)(c); s 62(3)(c).
182.
PPSA ss 66–67, assuming that the transferor-granted interest has been continuously perfected since the transfer. See s 68 for determining priority if the perfection has not been continuous.
183.
See generally Boxall (2011).
184.
PPSA s 32(1).
185.
See Sect. 4.1.
186.
PPSA s 32(1)(a)(i), (ii).
187.
The provision also benefits ‘lessees’, although this is of no relevance to intellectual property which is intangible and incapable of lease. For an argument that these terms ‘buyers and lessees’ should encompass not only an assignee but also a licensee, see Coburn (2014).
188.
PPSA s 43. See s 43(2) for an exception to this rule.
189.
PPSA s 44. It is argued that s 105 gives protection where a secured party’s exercise of rights in relation to goods ‘necessarily involves an exercise of the intellectual property rights’ and the obligation secured by the security interest in the goods is also secured by a security interest attached to the intellectual property rights: Swinson and Howley (2010), para 4.9.1200.
190.
PPSA s 46.
191.
PPSA s 19(2). Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs & mgrs apptd) (2017) 52 WAR 90. See Sect. 5.1.
192.
See Sect. 6.1.1.
193.
PPSA s 58.
194.
See Sect. 6.1.2.
195.
PPSA s 14. See Sect. 6.1.2.
196.
See Sect. 6.2.
197.
See Sect. 6.2. See also Sects. 4.1 and 5.3.
198.
Corporations Act s 9, s 51C for definition of ‘circulating security interest’; PPSA s 10, s 340 for definition of ‘circulating asset’. ‘PPSA security interest’ in s 51C excludes a transitional security interest: see Corporations Act s 9, s 51.
199.
Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Ltd (2008) 246 ALR 361, [60].
200.
Corporations Act s 556, 561.
201.
Corporations Act s 433.
202.
Corporations Act ss 443D, 443E.
203.
Corporations Act s 588FJ.
204.
Corporations Act s 124(1)(f).
205.
See Re Amerind Pty Ltd; Commonwealth of Australia v Byrnes & Hewitt (2018) 54 VR 230.
206.
PPSA s 340, subject to s 340(4A) which excludes an account or chattel paper where the security interest is provided for by a transfer of an account or chattel paper.
207.
The asset will, however, not be a circulating asset if an effective registration discloses control of the asset by the secured party and the secured party does have control: PPSA s 340(2).
208.
PPSA s 340(1)(b). An asset is not caught ‘merely because the secured party has given express authority to transfer specific personal property, or a specific class of personal property, free of a security interest’: s 340(4).
209.
PPSA s 109 excludes deemed security interests from the remedial regime unless they do secure payment or obligation. Hence a transfer of chattel paper or an account that has no security function is excluded.
210.
PPSA s 110. Remedies available through the security agreement might include sale, foreclosure (though it can only be exercised if the security interest is a mortgage) and receivership.
211.
PPSA ss 18, 254, subject to s 257. See Sect. 4.3.3.
212.
PPSA s 112(3). See Re Maiden Civil (P&E) Pty Ltd; Albarran v Queensland Excavation Services Pty Ltd (2013) 277 FLR 337.
213.
See, for example, UNCITRAL (2011), Ch VI [222]-[226].
214.
Swinson and Howley (2010), para 4.9.1500. See also Gunning et al. (2016), paras 19.65–19.70.
215.
PPSA s 79(1).
216.
PPSA s 79(2).
217.
PPSA s 114.
218.
PPSA s 111.
219.
PPSA s 115.
220.
PPSA s 116.
221.
Regulations may deal with the interrelationship, and with when compliance with the National Credit Code may be taken as compliance under the PPSA: PPSA s 119.
222.
PPSA s 120.
223.
See McCracken et al. (2017), paras 14.440–14.450.
224.
PPSA s 123.
225.
PPSA s 127.
226.
PPSA s 123(1).
227.
PPSA s 123(2). Alternatively, the parties may agree upon another method: s 123(3).
228.
PPSA s 112(3). Re Maiden Civil (P&E) Pty Ltd; Albarran v Queensland Excavation Services Pty Ltd (2013) 277 FLR 337.
229.
PPSA s 125.
230.
PPSA s 128.
231.
PPSA ss 128(2), 131. Procedural requirements include the obligation to give notice of disposal (s 130) and to provide a statement of account (s 132).
232.
PPSA ss 129, 130. In certain circumstances notice is dispensed with: s 130(5).
233.
PPSA s 129(3).
234.
PPSA s 133.
235.
PPSA s 128(4).
236.
PPSA s 128(6).
237.
PPSA s 134.
238.
PPSA s 134(2).
239.
PPSA s 136(1), (2). See also s 141.
240.
PPSA s 136(5).
241.
PPSA s 137. The alternative of lease is not available where the collateral is intangible property.
242.
PPSA s 142. This assumes that it has not agreed after default not to redeem. Other secured parties also have a right to redeem but subject to the grantor’s right.
243.
PPSA s 143.
244.
Duggan and Brown (2016), para 2.39. See Swinson (2002) for analysis of the position pre-PPSA.
245.
See, for example, Gunning et al. (2016), paras 19.65–19.70.
246.
Swinson and Howley (2010), para 4.9.1000.
247.
Whittaker Report, para 1.3.
248.
Commonwealth of Australia (2016), p. 2.
249.
Commonwealth of Australia (2017), p. 3.
250.
UNCITRAL (2011), Introduction, paras 49–50.

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University of Sydney Law School, Sydney, NSW, Australia
Sheelagh McCracken

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McCracken, S. (2020). Security Rights in Intellectual Property in Australia. In: Kieninger, EM. (eds) Security Rights in Intellectual Property. Ius Comparatum - Global Studies in Comparative Law, vol 45. Springer, Cham. https://doi.org/10.1007/978-3-030-44191-3_2

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DOI: https://doi.org/10.1007/978-3-030-44191-3_2
Published: 12 June 2020
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