Financing the intangible : software as collateral in the North-American context

In the era of information technology, intellectual property assets are gaining important value and are becoming increasingly attractive in the sphere of commercial transactions. The case of software as collateral in the context of a financing transaction brings to the surface the various issues which a lender must face when engaging in an intellectual property-based secured transaction.In the execution of such a transaction, the North-American intellectual property and secured financing legal regimes, currently in place, fail to procure the clear, certain and predictable results desired by lenders.Whether at the initial stage of creation of a security interest on the software or in the final steps of its enforcement, these regimes do not reflect the commercial realities and necessities of the software industry, thereby increasing both challenges and risks for the lender.The problems which the lender must face in the process of a software financing transaction will be examined through three Chapters. The first Chapter will focus on the creation and scope of a security interest on software, the second will examine its perfection and the third will address priority disputes involving competing interests in the software, as well as the enforcement of a security interest on software, both in the context of the debtor's default and in the event of its bankruptcy