Wednesday, 30 April 2008

"Spurious precision" and the IP Finance Group

When the informal IP Finance Group had its first, very informal, meeting back in January, we agreed that if possible we'd have another meeting in May.


Oliver Rivers has agreed to give us a short talk on Tuesday 27 May at 5pm at the London office of Olswang, solicitors (who have kindly agreed to provide a room and some light refreshment). The talk is entitled "Spurious precision" -- a concept that will be familiar to anyone who has been involved in the debate between the need to place IP rights within a range of values and the requirement that it have one ascertainable value at the point at which something happens to it.


We have the room till 6.30pm: the talk will last around 20 minutes, following which there will be a chance for some light networking, information-exchange and generally thinking about where we go from here. As before, everyone is welcome. If you'd like to attend, email me here.


For the record, the launch of this weblog was one of the fruits of the first meeting of the IP Finance Group in January. Despite its niche subject-matter and relative infancy, this blog has posted 73 items since the last week in January, receiving 3,888 casual visits between now and today. It has notched up 60 email subscribers and over 80 RSS-feeders. It has a page rank of 4 -- which suggests that quite a few other sites are linking to it -- and is gradually growing in momentum. The basis of a bibliography has also been put together in the side bar.

The more information we can spread about the IP/money interface, the better-informed will be the debates over IP as an asset and the decision-making processes that govern it. If you value this weblog, please tell your friends about it and let them know that it's always available to them.

Tuesday, 29 April 2008

Napier deal approved by shareholders

Last week the shareholders of Napier Environmental Technologies Inc ("Napier") approved the sale of its intellectual property outside of North America to Freeworld Coatings Global ("Freeworld") and the option grant to Freeworld to acquire the North American sales, marketing and manufacturing operations of Napier, including existing customers outside of North America, for $5.25 million in cash. See postings on Afro-IP here and here.

Monday, 28 April 2008

The "oil of the 21st century": Intellectual Property

For our German readers: the German Federal Centre of Political Education, the "Bundeszentrale für politische Bildung" (BPB) which inter alia aims to foster an understanding of political factual issues features an interesting and informative site on copyright law.

The site lauds IP as the "oil of the 21st century" and poses some interesting questions regarding the quantification of its value, in particular in the light of the recent German copyright law revision.

More information can be found here.

Posted by Jeremy on behalf of Eva Lehnert.

Leveraging IP to finance early-stage technology: Second Part

What are possible choices from a public policy point of view?

Governments need to set an adequate regulatory framework for IP strateges at the micro- and macroeconomic level. The administration can either provide direct funds to entrepreneurs or offer tax incentives to market participants operating in the field of early stage technology. Singapore, Malaysia, Thailand or Indonesia are very active in this area and can look back to a successful track record in promoting early stage technology and an IP culture. After only a year of intensive examination several Thai banks such as the Thai SME bank have started to consider IP as collateral. This probably significantly decreased the cost of capital for entrepreneurs. Firms and research centers may be able to take loans on the basis of their IP assets rather than refering to expensive mezzanine finance that require 20-30% of returns. Indonesia has launched several programs of privately managed public venture capital funds that seek to promote early stage IP. Also, research centers like the Technology Institute of Bandung in Indonesia are very active in licensing IP and forming strategic alliances and partnerships. A recent initiative of the Institute includes a partnership with young entrepreneurs in Indonesia that seek to add value to their business model. Success stories include a small agro-business that started using an invention of the institute and doubled its revenues.

Governments and intergovernmental development agencies can also take advantage of their role in promoting private sector initiatives. The public hand can act as an intermediary, can offer insurance services, provide information, offer a platform for networks and communicate trust to the market. All these activities linked to IP promote an IP conscious investment culture and help raise awareness of the value of IP assets among investors and borrowers.
In many developing countries early stage technology companies know little about how to audit, value or commercialize IP assets. As a consequence investors are not able to grasp the value deriving from the borrower’s IP assets. Public initiatives explaining to borrowers and investors the value of IP assets can help. Training classes for borrowers and investors on the nature of IP assets and their potential for value creation can be an important first step. There might also be scope for the education of IP assets professionals that know how to value IP assets. China, for example, can look back at a certain history in IP assets valuation after taking this type initiative.

A possible reform of accounting standards might allow companies to put the value of internally generated IP assets on the balance sheets. Taking Germany as an example recent modifications of US GAAP standards (US accounting standards) have brought the IP assets perspective on the agenda of CEO’s of major multinational companies operating in the country. Companies listed at the New York Stock Exchange, but doing business in Germany are under SFAS 141 and 142 of US GAAP allowed to put intangible assets (including trade names and trade dresses) on the balance sheet. This is optional.

This novelty has provoked a major shift in the country. It appears that as from 2004 the biggest firms in Germany have been accounting their intangible assets according to US standards. Even though the guidelines in SFAS 141 and 142 are quite vague and far from sufficient to allow for adequate accounting of intangible assets, this has provoked a considerable shift in the market.

Also, the institutional framework for obtaining IP protection needs to function. Obtaining IP protection must be affordable, uncomplicated and reliable. This calls for the strengthening of the role of IP offices. In many developing countries patent search is not conducted at the global level before a patent is granted, obtaining a patent can be very expensive and time consuming (sometimes up to 10 years). As a consequence the borrower’s options to access finance on the basis of IP are limited.

Equally financial regulations need to guarantee investors their rights in the IP assets. At the national and international level several initiatives are currently under way. To cite the most prominent one’s UNCITRAL is currently elaborating a draft convention on financing on the basis of IP assets, equally BASEL II defines collateral as tangible and intangible assets. The Thai and Indian governments have taken steps towards similar reforms.

IP is a key driver of a firm’s value. It can be valued using various credible and established techniques. The biggest obstacle in using IP in financial transactions seems to be the myth that intangible assets can not be valued or accounted and henceforth not be considered as a useful financial tool.
However, these are perceptions and views that do not reflect the intrinsic characteristics of an IP asset. Investors AND entrepreneurs often know very little about IP and how it relates to the value of a company. Also, it is not sufficiently associated with technology and many governments and intergovernmental development agencies have not yet profited from the full advantage the IP perspective offers.
Further problems arise from inadequate communication. Lev (Lev 2000) has proven that the price of a technology stock is positively correlated with the firm’s efforts to announce licensing agreements, royalty revenues, patenting activities and viable technological developments. The valuation of IP remains a forecast, remains a view on potential future income streams, but within this framework it is as feasible and reliable as the valuation of tangible assets.

At the macroeconomic level countries cannot afford to ignore IP assets. Ownership and use of IP is a major driver of economic, social and cultural welfare. At the microeconomic level investors and entrepreneurs cannot afford to ignore IP either. Investors need to understand the drivers of a business. Although IP is a main driver of value, it often goes unnoticed. From an investor’s point of view the ignorance about value creating assets leads to inadequate investment decisions. Nor is it advisable for the enterprise to ignore IP. IP asset management must be an integral part of the strategy of any firm in knowledge based industries. Competing at the edge, be it at the firm, national or international level means picking up the IP assets perspective.

Bibliography
Arrow K.J. Economic Welfare and the Allocation of Resources for Invention. In: Nelson R.R. (ed.) The Rate and Discretion of Innovative Activity: Economic and Social Factors. Princeton University Press. Princeton 1962
Anton J/Yao D. Expropriation and Inventions – Approbiable Rents in the Absence of Property Rights. American Economic Review Nr. 84/1 1994, pp.191-209
Baygan G. Country Reports on Venture Capital Markets in OECD countries. OECD. Paris 1999-2003
European Intelligence Unit (EIU). Country Reports. The Economist. London on-going.
Freeman C. The Economics of Industrial Innovation. Printer. London 1982
Holmstrom B. Agency Costs and Innovation. Journal of Economic Behavior and Organization Nr.12/2 1989, pp. 305-327
Idris K. Intellectual Property. A Powertool for Economic Growth. WIPO. Geneva 2003
Kamien M.I./Schwartz N.L. Market Structure and Innovation. Cambridge University Press. Cambridge 19982
Lev B. Communicating Knowledge Capabilities. Stern School of Business. New York 2000
Rogers M. Firm Performance and Investment in R&D and Intellectual Property. Melbourne Institute Working Paper Nr.15/2. Melbourne 2002
Schumpeter J. Theorie der Wirtschaftlichen Entwicklung: Eine Untersuchung über Unternehmensgewinn, Kapital, Kredit, Zins und Konjunkturzyklus. Duncker und Humblot. Berlin (1934) 1964
Schumpeter J. Konjunkturzyklen: eine Theoretische, Historische und Statistische Analyse des Kapitalistischen Prozesses. Vandenhoeck und Ruprecht. Göttingen 1939
Schumpeter J. Capitalism, Socialism and Democracy. Harper and Brothers. New York 1942
Teece D.J. Capturing Value from Knowledge Assets: The New Economy. Markets for Know-How and Intangible Assets. California Management Review Nr. 40/3 1998, pp. 55-79

by Roya Ghafele[1]
Ghafele@haas.berkeley.edu
[1] This paper was presented at the OECD conference on Financing University Technology Transfer. St.Petersburg State University/ OECD. St. Petersburg December 14-15, 2004 http://oecdmoscow.9.com1.ru/rusweb/rusfeder/5/3/FinancingIPST.Petersbg1.ppt

Money to spend on innovation?

UK-IPO e-zine IP Insight reports that, over the next three years, the Technology Strategy Board (TSB) in the UK will have £1bn to spend on accelerating business innovation. The TSB is an executive non-departmental public body, established in 2007 and sponsored by the Department for Innovation, Universities and Skills (DIUS). I think this is what used to be called a quango. Can someone please advise?

Anyway, in this article the TSB Director of strategy Allyson Reed discusses how high-growth enterprises and intellectual property fit into her plans. She explains that the TSB "lies at the juncture of government, public research, corporations and enterprises". Significantly, any projects that fall within its brief "will be run on a collaborative basis with the TSB matching any funding from its partners in government, research and commerce". The article concludes:

"In helping to make growth projects happen, the TSB is not looking to take any IP itself. ‘The consortium owns it. How they develop it is up to them. We are investing where we can make a difference and where there is a return for the UK’".
A billion pounds over three years sounds great, particularly from a backer that doesn't seek any IP rights in return. But there are at least a couple of things to think about:
* How easy will it be for potential applicants for funding and support to fill in the forms and satisfy the formal criteria? If at the end of three years much of the sum set aside remains unallocated, we may have an answer to those questions.

* Are there any hidden issues of EU competition law? The Commission is not notably fond of state subsidies in supposedly open commercial sectors?

Sunday, 27 April 2008

Leveraging IP to finance early-stage technology: First Part

Innovation can be defined as investment in knowledge made in anticipation of profits. (Rogers 2002). Economists across the political spectrum have well demonstrated that innovation can be considered a proxy for future cash flows and growth opportunities. (see: Schumpeter 1934, 1939, 1942; or Freeman 1982; for further discussion see Idris 2003). From an empirical point of view data supports these theories. When relating economic growth to the composition of GDP it can be shown that the world’s wealthiest nations heavily depend on knowledge based production and services. (European Intelligence Unit).

This trend however is not equally observed in many developing nations, which often depend on agriculture, primary manufacturing and low value added goods and services.
Developing countries are increasingly demanding access to the knowledge economies, recognizing the economic impact of technology and innovation, as well as the role of indigenous research and development in providing solutions to problems of poverty and health. Access to finance is a key element that makes or breaks the success of a technology project, be it companies or research centers.

Nelson and Arrow (Nelson & Arrow 1962) demonstrated already forty years ago that competitive markets may fail to provide socially optimal levels of technology investment.
Technological innovation is surrounded with uncertainty, imperfect monitoring and – in some cases imperfect intellectual property rights. (Rogers 2002). Adequate protection of intellectual property is essential to guarantee ownership of the innovation.
Private investors, whether equity or debt investors, are driven by the aim to maximize returns while keeping risks as low as possible. Many early-stage technology projects have difficulties in passing this test. Risks associated with the technological viability itself, the uncertainty of the size of the potential market for the technology, and lack of precedent make the valuation of early stage technology firms a non- obvious task to investors.

Little knowledge about intellectual property (IP) and even less experience in valuing and understanding the nature of IP assets can be seen as key obstacles in access to finance. The skepticism surrounding early-stage technology investment is often further hampered by inadequate capital market communication, expressed by inaccurate accounting standards or alternative reporting methods of a firm’s IP assets. As a consequence many technology-based entrepreneurs are underfinanced and poorly positioned to extract the value of their innovations. (For empirical evidence on this problem in developed countries see: Kamien & Schwartz 1982, Holmstrom 1989, Teece 1998 and Anton & Yao 1994). Sectors associated with low levels of verifiability are associated with low levels of investments.

As an additional problem entrepreneurs in developing countries are confronted with the absence or low sophistication of functioning capital markets. An early stage technology project can tap into different sources of funding, be it risk capital or different forms of loans.
Private equity markets are virtually absent or hardly developed in many developing countries. From a global perspective venture capital is concentrated around five hubs: The US, UK, Canada, Korea and Israel. Yet, even in these countries venture capital markets are small. Taking the US as en example the market size hardly accounts for ½ a percentage point of GDP. (Baygan 2002).

Commercial banks on the other side focus on investments that provide lower rates of return (on average around 7%), but are associated with lower levels of risk. As a consequence late stage firms rather than early stage companies get funded. Banks offer financial instruments for companies that can already offer some historical evidence of revenue flows. To finance early stage technology firms many banks lack in-house competence and business models that would allow them to grasp the value of early stage IP assets.

Given that capital markets in developing countries fail to provide the amount of capital needed to provide optimal levels of finance, and considering the positive impact of knowledge based industries on economic growth, governments and intergovernmental development agencies are called to take an active role.

What are possible choices from a public policy point of view?
Read the next part and find out!

by Roya Ghafele[1]
Ghafele@haas.berkeley.edu
[1] This paper was presented at the OECD conference on Financing University Technology Transfer. St.Petersburg State University/ OECD. St. Petersburg December 14-15, 2004 http://oecdmoscow.9.com1.ru/rusweb/rusfeder/5/3/FinancingIPST.Petersbg1.ppt

Friday, 25 April 2008

IP finance bibliography

Readers of this blog who only scan the most recent news items, or who receive their posts by email, will not have seen the IP finance bibliography that is gradually creeping down the side-bar. Thanks almost entirely to the suggestions of our Bulgarian colleague Ventsi Stoilov we now have a collection of articles, books, papers and documents that can provide plenty of reading matter and reference to source materials in the various areas where IP and money issues collide. Many thanks, Ventsi, for your efforts. Other readers are invited to send their suggestions too. Please email them to me here.

IP Business Congress 2008

On 25 and 26 June 2008 an IP Business Congress, organised by Intellectual Asset Management magazine, takes place in the Grand Hotel Krasnapolsky, Amsterdam (the Netherlands). The programme features what the organisers call "the first-ever Chief Intellectual Property Officer (CIPO) Summit". The event culminates with a live IP auction conducted by Ocean Tomo in which intangible assets worth many millions of euros will be up for sale.

The plenary sessions in the CIPO summit deal with (i) building the CIPO role, (ii) the regulatory environment, (iii) a "meet the CIPOs" session and (iv) Into the future.

There is a registration fee of 1,500 euro for this event--but readers of the IP Finance and IPKat weblogs are entitled to a 15% discount: just quote the code IPK08 on the booking form or when phoning to book a place.

For further information regarding this event click here
Programme details are available here
The speaker list is available here

Wednesday, 23 April 2008

A case worth $45million to an Aussie doctor

According to ABC News, a unique lawsuit involving the intellectual property rights for research by a university employed doctor has been been dismissed by the Federal Court in Perth.

In 1997 Doctor Bruce Gray created a biotech company called Sirtex to develop and market an anti-cancer technology he had invented. The University of Western Australia claimed ownership rights over the drug treatment because it alleged Doctor Gray invented the technology while employed at the university. However Federal Court Justice Robert French dismissed the university's claim saying inventions made by academic research staff using university resources ordinarily belong to the staff member.

Outside the court Dr Gray's barrister Martin Bennett said his client would be seeking damages.

"His (company, Sirtex) shares have been frozen throughout the time he's been forced to sell other assets and borrow money to fund multi-million dollar litigation," he said.

Apparently, Sirtex shares surged 13 per cent today to $3.53 before a trading halt was issued.

Provious web positings on the case (and other boardrom tensions) can be checked here.

Co-incidentally, this blogger received a question on a similar point just yesterday (albeit for another jurisdiction and with nothing like AUS $45million in issue... yet) and came to a somewhat different conclusion about ownership of copyright derived from works created in the course and scope of either the employ of the University or through doing work under University supervision. He would welcome comment from readers and a copy of this case, if anyone can get their hands on it.

Monday, 21 April 2008

AstraZeneca shares up 7% after settling Ranbaxy patent suit

AstraZeneca PLC said it has settled a lawsuit against India's Ranbaxy Laboratories Ltd. in a pact that will keep Ranbaxy's generic copies of the blockbuster heartburn drug Nexium off the U.S. market until 2014 according the the Wall Street Journal. The settlement lifted a cloud hanging over AstraZeneca. The company's shares rose 7.1% on the London Stock Exchange on Tuesday. However, AstraZeneca also said it was awarding Ranbaxy some valuable contracts, saying that they were separate from the litigation settlement. Some analysts said the contracts could trigger questions from the U.S. Federal Trade Commission, which still must review the agreements. The commission has objected to some deals where it believed that a patent holder was giving a generic company something of value in exchange for staying off the market, arguing that this stymied competition and hurt consumers. Technically, Ranbaxy could have started selling generic Nexium in May, when a 30-month stay barring Ranbaxy from the market expired. But if Ranbaxy had started selling generic Nexium but lost the litigation, it would have had to pay AstraZeneca damages.

Friday, 18 April 2008

Licensing Framework for LTE Announced

My recent embrace of podcast listening has yielded its first blogging fruits. A brief item on a Technology podcast of the Wall Street Journal reported this week that a licensing framework has been reached regarding the emerging mobile network technology known as Long Term Evolution (LTE). A quick search on the internet produced a cornucopia of items covering this development.

In short, the parties to the agreement undertake to keep royalty rates on their respective patents low enough to spur development of the technology. With respect to handset and laptop sales, they have agreed to keep patent royalties under 10%.

LTE is being described as the next-big advance in mobile technology, enabling cell phones to provide users with such nifty services as high quality TV (though the eyeglasses needed to view these programs by old geezers like myself are not part of the technology) and seamless video calling. By reaching agreement on the licensing framework, the hope is that the time to deployment of the LTE technology will be reduced to two years or so.

The international array of companies involved in the agreement reportedly are Nokia, Ericsson, Alcatel-Lucent, NEC, NextWave Wireless, Nokia Siemens Networks and Sony Ericsson. According to Reuters, Mobile carrier Verizon Wireless (no. 2 in the US) had previously announced its intention to build on the platform, while China Mobile (the world's biggest) has expressed an intention to test LTE. As well, Alcatel-Lucent and NEC have entered into a joint venture for development and marketing of the technology. Tantalizingly, Qualcomm, while not being a party to this agreement, has reportedly promised chips for the LTE technology, which competes with Qualcomm's own Ultra Mobile Broadband Technology.

Who else is missing? Well, for starters, Nortel is absent from the list. A company spokesman for Nortel, Mohammed Nakhooda, is reported to have stated that "[e]veryone would agree that Nortel is a major contributor to the LTE standards" and that it "is front and centre for all discussions [regarding LTE systems]." In other words, look for Nortel to announce its own royalty rate scheme.

A posting by Vijay Nagarajan puts the Nortel position in a broader light against the backdrop of past licensing agreements in this area. He notes that something similar was attempted in 2002 regarding WCDMA, where agreement was reached to cap royalty rates, only to witness that holdouts with a strong IP position in the technology went ahead and set their own (presumably double-digit) royalty rates, reaping the benefits on their corporate bottom line.

I personally love devoting one MBA class to arrangements of this kind, given the complex mix of cooperation, competition, standardization and hold-out. Only time will tell if the LTE royalty arrangement reached this week heralds anything more than feeding my pedagogical curiosity.

Thursday, 17 April 2008

IP bundling model to be developed

The latest issue of Technology Transfer Tactics mentions that the National Science Foundation (NSF) in the USA has awarded Loma Linda University a three-year Partnership for Innovation (PFI) grant of $593,978 to lead a consortium in developing an IP bundling model for marketing research discoveries from Southern California universities. Loma Linda and the Institute will "develop a Larta concept that will enable universities to jointly market their discoveries by bundling related technologies from different universities."

Larta (http://www.larta.org/), a non-profit commercialization assistance corporation, pioneered the bundling concept and founded Network T2, in which TTOs from regional universities and research institutions work collaboratively to overcome challenges to technology commercialization.

IP Finance asks: from the universities' point of view there are obvious advantages in bundling -- but how will prospective licensees respond?

Wednesday, 16 April 2008

£350million owed for "looted" cultural artefacts

A documentary film scheduled for release soon will raise key issues over Article 11 of the UNESCO 1970 Convention on cultural objects taken across borders according to Melford Ita ("Africa: The Crown Affair"). He makes an argument that the Nigerian government is owed £350million in back dated royalties for the use of IP rights from colonial looters, following his take on an editorial alluding to Markets and Investments grappling with the interpretation of a copyright law with the British Museum surrounding images of the Queen Idia mask.

Mr Ita's logic (copied below) in coming to his royalty figure of £350million is not beyond reproach. However, his article, its style and its conclusion are indicative of the scale of the issue and the emotion which surrounds it.

"... to calculate the revenue that might have been derived from these artefacts, one would start from 1973. Given a 5-year non-exclusive licence at £250 plus VAT, such a licence would be up for renewal every five years. Since 1973, to date 7 such licences would have been issued for each individual use of the Idia mask, i.e. 2008-1973 = 35years. 35yrs/5yr licence = 7. To appreciate the enormity of this abuse of copyright law, £250 x 7 = £1,750.00 in reproduction fees from the Queen Idia mask over a 35-year period. Based on a 5-year non-exclusive licence, if 50 people applied to use the image of the photograph over a 35-year period, the Queen Idia mask alone would have earned £1,750 x 50 = £87,500 since 1973.

The number of looted Nigerian cultural artefacts in the BritishMuseum and other museums worldwide is estimated at 4000. Therefore, £87,500 x 4000 = £350 million, being the potential revenue for the use of images. This sum is devoid of future potential earnings, which should continue perpetually as long as there is demand for the use of images. This is a true case with documentary evidence highlighting a fraud that has gone unchallenged for so long."

Article 11 of the UNESCO 1970 Convention on cultural objects declares as illicit, “the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power.”

Management of IP in knowledge transfer activities

IP Finance is grateful to guest blogger Professor Ruth Soetendorp for the following piece:

"The European Commission's recent Recommendation on the Management of IP in knowledge transfer activities combines a Code of Practice for universities and other public research organisations a set of practices for public authorities, universities and research organisations to facilitate IP management. It recognises the role IP management plays in achieving the goals of the Lisbon Strategy: circulation of use of ideas in a dynamic knowledge society and enhancing competitiveness and welfare, through converting knowledge into socio-economic benefits. Proper IP management should lead to the growth of 'an entrepreneurial culture and development of associated skills.

While not binding on Member States, a recommendation carries political weight (Wikipedia describes recommendations as instruments of indirect action aiming at preparation of legislation in Member States).

So what's recommended? Institutions should establish and publicise policies and procedures for IP management, raise the IP awareness and skills of students, sort out ownership issues to facilitate crossborder collaborations and knowledge transfer. Member States should designate a national contact point to coordinate KT between research organisations and the private sector, and should ensure widest possible implementation of the Code of Practice, ensuring equitable and fair treatment of all participants in international research projects, particularly re ownership of and access to IPR.

It covers IP policy (and publication/dissemination policy), clear rules for staff and students, incentives, IP portfolios, setting up patent/IP pools, awareness and training to promote IP identification, protection and exploitation. The recommendation (Annex II) also identifies practices to facilitate the implementation of the Code. Member States are expected to inform the Commission by 15 July 2010 and every two years thereafter of measures taken on the basis of this Recommendations, as well as their impact.

The Recommendation is a welcome endorsement of IP education for students, together with enhanced institutional IP management awareness and competence".

Tuesday, 15 April 2008

Can you help?

The IP Finance weblog has received a request for information from a reader, an Italian economics student who wants to know two things:

* are there any good books and reading materials on IP finance, either downloadable or purchasable online:

* can anyone give advice concerning careers in internal IP auditing?

If any reader has any reading recommendations or advice, please email me here. I will forward the advice to the student and I'll compile an online bibliography of recommended reading which I'll make available online in this blog's sidebar.

Monday, 14 April 2008

Transfer Pricing Focus Study by E&Y: Africa

Transfer pricing is the most important international tax matter after valued-added tax and double taxation [affecting SA multinationals], according to a study released by Ernst & Young at the weekend and reported by Business Day here. SA, Namibia, Kenya, Mozambique, and Tanzania have introduced laws dealing with transfer pricing. Other countries tax multinational companies’ transactions under anti-avoidance sections of their domestic tax legislation. About 40% of multinational companies in Africa prepare documentation on a single country basis, modified to meet the needs of specific jurisdictions, rather than on the co- ordinated basis. More than 20% of companies acknowledged that they did not prepare transfer pricing documentation. The research was based on independent interviews with 40 participants in Anglophone Africa in August and September last year.

Friday, 11 April 2008

Film finance faces a perfect storm

A depressing piece of analysis by Steven Zeitchik ("Industry braced for economic impact"), on Hollywood Reporter, predicts the perfect storm facing the film-financing world in the wake of the current economic downturn. He observes:

"... so-called single-picture financing -- which encompasses films ranging from the smallest indie to a $60 million star vehicle -- is going through its own turbulence. Projects that would have sailed through easily a year ago are stalled in development. Movies that are practically in preproduction are falling apart at the eleventh hour.

...

Most evidently, skittish equity investors who once thought nothing of dropping a few million into a project are becoming a lot tighter with their money, while the overall number of equity investors is starting to drop.

Almost as dramatic is the change in debt financing, the means by which much of a film's budget is covered. Money is either too expensive -- interest rates have soared from the neighborhood of 10% to 20% for many films -- or impossible to get in the first place.

To top it off, a barren foreign-sales market -- some call the recent Berlin market the worst in many years -- is dinging the financing world. Producers can't finance most pictures without foreign presales, and foreign presales help cover much of the debt in what's known as Gap/Supergap financing. If a project can't be presold and risk limited, financial institutions such as Aramid and Newbridge Partners who provided this funding become more reluctant to lend".
He gives the example of a typical $10 million film finance project, where $5 million may come from debt financing, $3 million from equity investors and the rest from state grants and tax rebates. The reluctance of equity investors to commit and the poor prospects for foreign sales make the funding exercise painfully difficult.

Thursday, 10 April 2008

Business power and IP assets

Duncan Bucknell's IP Thinktank blog mentions the not-for-profit Center for Advanced Technologies, set up a group called the National Knowledge & IP Management Task Force (or K & IP Task Force). This group published a book last year, Business Power - Creating new wealth from IP Assets, which Duncan recommends.

The task force itself as an impressive list of participants: it lists as Strategic and Corporate Partners such IP-savvy names as Cisco Systems, Motorola, Dow Chemical, Cap Gemini Ernst & Young, AT&T Knowledge Ventures, Ford and Phillip Morris USA.

If any reader has any useful information about the task force or the book, can he or she please share it with the rest of us?

Wednesday, 9 April 2008

Trust law provides fresh route in Japan

There's good news for anyone planning to securitise patents in Japan, according to an article on Intellectual Asset Management magazine's editor's blog. The article, "Securitising patents in the global credit crunch" by Yohei Iwasaki (Uchida & Samejima Law Firm), outlines the new Trust Law (Law 108/2006) which provides an alternative means for patent securitisation to the little-used Law Relating to the Securitisation of Assets. It enables investors to hold risk-manipulated beneficial interests that are related to the trustee, instead of bonds or shares. Moreover, entrusted patents are separated from the risk of an originator and/or a trustee going bankrupt. The author concludes that there is much optimism that securitisation transactions with innovative structures, using the new Trust Law, could become more common in future.

Tuesday, 8 April 2008

Star Wars damages enforcement case

George Lucas, the creator of the films, is suing prop designer Andrew Ainsworth who made the first helmets and suits for the original 1977 film and is now selling replicas made at his studio in Twickenham, south west London. According to the Daily Telegraph article George Lucas is trying to enforce the £10 million damages awarded to him by a California judge in 2006. However, Andrew Ainsworth is counterclaiming for a slice of the £6 billion in merchandising generated by Star Wars since 1977. The case deals with ownership and the existence of IP rights in the props as well as the quantum of damages to be awarded/enforced.

According to a quip in The Metro, the case which started this morning and is expected to last for ten days, commenced in amusing fashion with a stormtrooper staring down the judge:

Michael Bloch QC, representing Lucasfilm, looked at the armour and helmets surrounding him and told Mr Justice Mann today: "The gentlemen sitting in front of me and around me, who are known throughout the world, are the subject matter of the entire case."

The judge, looking at the white armour of the Stormtrooper in front of him, asked: "Will they be there for the entire case?"

Mr Bloch continued: "You will hear a lot about helmets and armour. As far as we know they are half human and half non-human and are known as Stormtroopers. What we are dealing with are characters of the imagination."

Sunday, 6 April 2008

Tiger's march to become the first $1 billion athlete

According to Golf Digest, a leading South African golf magazine, Tiger Woods (no surprise) leads the 2007 top 50 earners with a recorded annual income of $122 702 706. Interestingly, only one sixth of his income comes from actually playing golf with the remainder coming from endorsements, bonuses, appearance fees, corporate outings, speaking engagements, licensing receipts, course architecture, books, instructional videos and other businesses that capitalise on what is often referred to as his "image rights". Tiger's overall career earnings, according to the article, are $769 440 709 putting him on track to become the world's first $1 billion athlete.

In other sports the opportunities to exploit image rights are nowhere near those afforded to golfers. Golfers have unique opportunities to earn income - for example designing golf courses. Furthermore, they can play the game throughout their lives. This is no more evident than in the case of 42nd ranked Gary Player who, at age 73, is still able to generate over $5million off his brand, tag lined "The Black Knight". To put golf earnings in perspective, David Beckham, arguably the greatest contemporary brand of the "worlds' most popular sport" - football, was only! able to earn a third of the income of Tiger Woods over 12 months in 2006/7 (according to figures released by Forbes magazine).

Friday, 4 April 2008

Pharma investment in South Africa -- climate survey

Writing in Moneyweb today, Eustace Davie (Free Market Foundation) reviews the economic and regulatory climate facing pharmaceutical companies thinking of investing in South Africa. His article, "Attracting pharmaceutical investment to South Africa", cites figures from a recent Deloittes report which showed that in 2006 the South African economy derived a direct investment benefit of some R10 billion from the pharma sector. The tax revenue alone generated R1.6 billion. Capital investment contributed R1.8 billion. He adds:

"Pharmaceutical research and development (R&D) could make an even greater contribution to SA’s economic growth. Unfortunately the potential for growth is being hampered because government health care regulators do not appear to have the same appreciation, or interest, as their colleagues dealing with science, technology, trade, industry and finance, in the role that innovation plays in competitiveness and economic development.

...

A lack of skills and slow regulatory approval for new medicines are among the most pressing problems facing the pharmaceutical sector. SA should take deliberate action to expand current R&D expenditure by, for example, tailoring the regulations for pharmaceuticals and particularly for clinical trials to fit that purpose. SA was in the lead just five years ago but now clinical trial development is growing much faster in India and China".
While he concedes that South Africa has adequate IP protection, he observes that there is no mechanism for extending the patent life of a pharmaceutical product whose effective patent term has been reduced by delays in the registration process. In conclusion he observes:
"It is not for the comfort and benefit of investors that governments provide patent protection for pharmaceuticals, regulatory environments conducive to ease of doing business, and other conditions intended to make their countries attractive investment destinations: it is for the benefit of the country’s citizens. In the case of pharmaceuticals it is to improve access to medicines, jobs, skills, technology and all the other benefits that citizens can derive from the presence of a large and thriving pharmaceutical manufacturing industry".

Thursday, 3 April 2008

Boost for Italian film finance

Writing in World Media Law Report, Leonardo Paulillo and Augusto Scerrato (Paulillo & Teti, Rome) explain that the Italian government has introduced a new regime of financial incentives for the making of films of Italian origin through its Finance Act 2007, to help address a chronic shortage of capital. The new regime builds on the experiences of Ireland and Spain, establishing two types of incentive that are not so much tax relief or cash incentives but tax shelters.

Article 325 of the Act establishes tax shelters for corporate capital gains and for income tax for natural persons, for investors who are not themselves part of the film business. Article 327 provides a tax shelter for operators of film businesses in relation to film production, distribution and screening entrerprises.

More information on World Media Law Report here.

Wednesday, 2 April 2008

Insight offers scope for transparent measurement

Last week The Guardian carried an item concerning YouTube Insight - an audience measurement tool that will allow both individual and commercial users to see exactly when and where viewers watch their videos. Accessible data, which is presumably anonymised for data protection purposes, gives a geographic breakdown of visitors' locations, showing the number of views and relative popularity of each video by country and detailing how many times it has been watched each day. The article reports:

"Film marketers have already been posting different versions of trailers on YouTube to work out which has the best response, but individuals can also optimise the popularity of videos by identifying the typical lifespan of a clip.

New features will be added to the service shortly, including the time of day that each video is watched".
This facility is of clear benefit to the creators of video clips for viral marketing purposes, as well as for advertisers who invest in the development of brand awareness but have few conventional means at their disposal - other than gross results in the marketplace - for working out how effective their spend on brand development, leverage etc actually is. An audience measurement tool that assists both brand owners and those whose services they pay for can only be a good thing.

YouTube information on Insight here