Legal Literacy - This article discusses the use of Copyrights and Trademarks as collateral for bank loans. Is it possible? Let's take a look at the explanation!

Written by:Muhammad Ghifari Fardhana Bahar(Law Student, Universitas Negeri Jember)

Definition of Intellectual Property Rights

The term Intellectual Property Rights or IPR is a translation of Intellectual Property Right. In addition, the terms intangible property, intellectual property, creative property, and incorporeal property are also known.1

Intellectual Property Rights can be considered valuable assets. This is because IPR is an intellectual work in the fields of science, art, literature, or technology that is produced with the sacrifice of energy, time, and cost, making it valuable and precious.2

An IPR has economic value and profitable financial potential. In fact, for companies, IPR works can be referred to as valuable company assets.

In the spectrum of legal science, IPR is classified as intangible personal property rights. These rights are exclusive, meaning that these rights are only granted to the owner or rights holder for a certain period to obtain protection to announce, reproduce, and distribute their creations.3

Intellectual Property Rights as Bank Credit Guarantee

IPR as movable property that is intangible and has economic value and valuable company assets, therefore IPR can also be used as collateral in an agreement credit. These provisions are regulated in Law No. 28 of 2014 concerning Copyright and Law No. 13 of 2016 concerning Patents, which stipulate that copyrights and patents can be used as fiduciary guarantee objects.

In addition to copyrights and patents, trademark rights can also be used as fiduciary guarantee objects. This is because trademark rights can be qualified as intangible movable objects that can be traced through their nature and characteristics, namely that the rights can be defended and transferred.4 Therefore, brands also have material characteristics and economic value.

Although in terms of regulation, the nature, and characteristics of copyrights and rights trademarks can be used as fiduciary guarantee objects in credit agreements, there is still no legal umbrella if the credit agreement is between a company or individual and a bank, thus creating legal uncertainty. This provision can be seen in POJK 40/2019, in which IPR or specifically copyrights and trademarks are not yet included as productive credit guarantee assets.5 However, in its application in 2012, Bank BNI once used trademark rights as additional/complementary collateral, not the main collateral.6

The development of IPR, especially copyrights and trademarks, in the International world as bank credit guarantees can be seen in the results of the 13th session of the United Nations Commission on International Trade Law (UNCITRAL) in 2008, which stated that IPR will be used as collateral to obtain banking credit internationally.

Ratifying Regulations

In response to the above, the government issued Law No. 24 of 2019 concerning the Creative Economyf and Government Regulation No. 24 of 2022 concerning the Creative Economy, which both regulate financing schemes by banking institutions by making IPR as a credit guarantee object.7

However, its implementation remains difficult, as there is no clear assessment of IPR assets and other supporting regulations that make IPR a collateral object for bank credit. Therefore, harmonization with the Banking Law and OJK Regulations is necessary.

References

*This article represents the personal opinion of the author and does not represent the views of the editors Legal Literacy Indonesia.