Intellectual Property License Contracts : Reflections on a Prospective UNCITRAL Project

IP licenses are the leading lady of the information age. The economic and strategic significance of this contract archetype have grown exponentially over the past 40 years. Under this glaring spotlight, it has become increasingly apparent that the legal framework governing these voluntary exchanges is not supportive of the role they play in the modern digital environment. At the domestic level, the applicable rules are often lacunose and suffer from doctrinal underdevelopment; moreover, they are scattered throughout diverse areas of the law, yielding legal uncertainty and rendering a holistic appraisal onerous. Internationally, a comparative analysis of IP licensing regimes reveals a jarring lack of alignment across jurisdictions that severely hinders cross-border transactions. For over a decade, the United Nations Commission on International Trade Law (“UNCITRAL”) has been contemplating the possibility of a project to promote the modernization and harmonization of IP licensing law. During this time, UNCITRAL Member States have continued to grapple with lingering reservations, yet support has grown steadily among practitioners and academics, and is verging on achieving critical mass. This paper provides the theoretical infrastructure for such a project by expounding its possible scope, content and form. The objective of the present enquiry is not to articulate or advocate a single, concrete proposal. Rather, its aim is to identify the policy choices and legal issues that UNCITRAL Member States would face in the elaboration of this project, and coextensively lend color to the decision-making processes that would be required to attain consensus solutions