From the pen of
Charles Kerrigan (a partner at Olswang LLP and a former member of the IP Finance team) come some observations about media and technology finance which have been
recently published in
Financier Worldwide. The IP Finance weblog is pleased to reproduce them here, with a few comments from this blogger:
"Achieving growth in the UK media and technology sectors
Commentators have suggested a broad range of solutions to the problems of the UK economy at the start of 2012. With a number of solutions from which to select it would be interesting to consider if there are links between them and sectors of the economy which could benefit in particular. Let us start by looking at some of the suggestions.
Financial commentators and the government generally seem to agree that small and medium enterprises (SMEs) in the UK should be given the best possible support at this time [dissenting voices are hard to find in terms of principle -- though there is debate as to what that support should be]. Project Merlin, the commitment given to the government by RBS, Lloyds, Barclays and HSBC, has set targets for lending with the aim of ensuring that banks do not repair their balance sheets at the expense of doing new lending business. In addition, the government plans to help lending to small businesses with national schemes. Late in 2010 the government committed £2bn to the Enterprise Finance Guarantee. Companies with annual revenues of up to £25m can apply to banks for loans of up to £1m, 75 percent of which will be guaranteed by the government. The Chancellor had previously announced a credit easing scheme, the National Loan Guarantee Scheme, designed to reduce the average interest rate on loans to small businesses by 1 percent.
There is a general view that the UK economy should be rebalanced in favour of manufacturing [this can either be seen as a positive statement, or as a retreat from an overheated service economy with excess capacity]. The Financial Times recently asked the question: how can the UK capitalise on its manufacturing strengths and eliminate weaknesses? The point of question was to note that while UK manufacturing may have a small share of global production by its historic standards, the share is nevertheless significant by reference to the country’s size. On the other hand, it was noted that rebalancing will not be entirely driven by the government and businesses must help themselves, including taking advantage of the credit schemes available.
Smaller manufacturing businesses in particular are undercapitalised and find it difficult to attract finance. One of the difficulties that manufacturing businesses currently face is that demand is depressed by the fact that economic recovery has not been consumer-led in the same way as in previous recoveries. It is likely that this will generally remain true as consumers seek to repair their own balance sheets over the next couple of years. Yet it is clear that the right products still attract discretionary consumer spending. Retailers’ post-Christmas reporting has demonstrated a clear group of winners among niche and online businesses. In 2011 Apple became, for a period, the largest company in the world by market capitalisation. Incidentally, this must be the surest example of the truth that perception lags reality as, even in the age of Twitter, the world’s largest company has been able to maintain its anti-establishment image.
Apple is also becoming the most significant beneficiary of another broad trend. Many businesses are now engaging with the challenges of the consumerisation of the workplace, most obviously dealing with the demands of employees to use their own devices at work. IT directors these days all have stories to tell of pressure from employees to swap the office Blackberry for their personal iPhone rather than carrying two devices. The likely eventual outcome of this will be that corporates will provide employees with a budget to enable them to buy their own devices and accommodate these to the systems operated by the company. This will have an obvious effect that technology businesses which have been built to serve the corporate market will be challenged by providers of consumer technology. Businesses with experience in marketing themselves and with products that appeal direct to consumers should be taking advantage of this trend.
This should be good news for small, innovative media and technology companies which include manufacturers among them. They can market to consumers directly and the right products will attract discretionary spending either from the consumers’ own pockets or from their employers’.
Let us therefore look at the link between UK government support for funding SMEs and the opportunity for those technology businesses during the coming year. Large and small businesses in media and technology are doing the same thing: creating and protecting intellectual property (IP). IP has huge value and huge potential but it is intangible, a creature of a piecemeal legal system including copyrights, trade marks, patents and others. It is another area on which the coalition government has recently focused. In May 2011 an independent report commissioned by the government was released. ‘Digital Opportunity: A Review of Intellectual Property and Growth’ was published by Professor Ian Hargreaves with the aim of suggesting ways in which changes to the UK’s intellectual property framework could stimulate the economy. The report recommended that intellectual property law should be updated in a number of ways and it seems that it will be implemented at least in part by the government. The report did not directly address challenges posed by the current economic climate and, in particular, how banks view and lend against IP [Hargreaves was also very much more focused on copyight -- as the 'digital opportunity' part of the review's title might imply -- than on some other IP rights, and the time-frame within which it was delivered meant that not only bank lending against IP rights but many other IP issues could not be directly addressed].
UK banks have always preferred to lend against real property. It can be valued against comparables in the market, produces predictable income streams from long leases and doesn’t go anywhere if the bank’s loan is not repaid and so can be the subject of enforcement proceedings. Since we now have a generation of bankers and regulators who have overindulged in lending against real property, perhaps the next generation will pay more attention to intellectual property. Intellectual property poses challenges, however. It is difficult to value and valuations are only carried out by a small number of specialist companies. Cashflows are generally less certain since no cash is generated while products are in development and the products have increasingly short shelf lives. Because IP is intangible it may lose value if the business which develops it fails [for the lender, the established consumer goods trade mark is about as good as it gets, though in the United States the greater willingness to take risks appears to make patents, and income streams from proven successful patent-based products, a more attractive security than on this side of the Atlantic].
IP is also technical and complex for a lender. An example will demonstrate this. In order to take security over a domain name (e.g., xyz456.com), it is necessary to take security over a number of different types of IP. First, the trade mark in the domain name itself; secondly, the copyright in the material uploaded onto the site; thirdly, any software or computer code relating to the domain name; and fourthly, some degree of control over the servers to avoid an unpaid system provider switching off the site. Added to this complication is the fact that this analysis must be repeated in every jurisdiction in which the domain name has value. Banks are certainly engaged with these issues. They understand valuations and security and they are extremely keen to lend and be associated with the winners in the new economy. It is also helpful that we have recently seen IP retain value even where the businesses that own it find it difficult to maintain their standing with consumers. Nortel Networks and Motorola have both recently sold patent portfolios for good prices [the high prices fetched by the respective portfolios has led to the suggestion that their collective, strategic, convenience and/or psychological value might have been an attraction in addition to their regular market value].
The quickest way to achieve growth in the media and technology sectors of the UK economy is to make it easier for banks to lend to businesses which operate in the sectors. While the wider economy has a debt problem the same cannot be said for these sectors. They include many high profile, cash rich and young companies. The government appears to be showing itself to be up for the challenge. The schemes to improve lending to SMEs and the identification of the digital economy as critical to the success of the UK are evidence of this. What is now needed is an attempt to link the two together. IP is not user-friendly and this will be a drag on SMEs and banks. Steps are being taken in this regard and, as well as the Hargreaves Report, the progress towards a unified patent system in Europe is welcome. It is inevitable that changes to the IP landscape will be as piecemeal as the landscape itself. Nevertheless, the government should maintain a clear focus wherever possible on simplifiying of the types of IP and facilitating diligence and security over IP by harmonising and improving the rules on registration.
Any review of IP should specifically take account of lenders and the credit easing schemes should be directly linked to the process. Banks have a role to play here and any success will be to the benefit not just of the banks but also of the media and technology sectors and the wider UK economy [but regular and meaningful dialogue between IP-based borrowers and banks has been difficult to establish -- as readers of this blog will probably be aware. Part of the problem is that banks have one thing; everyone knows what it is and everyone wants to borrow or make it. Lenders come from a variety of IP-based sectors in which their intellectual assets are different and behave in wildly different ways. This means that banks always have a lot more to learn than do borrowers; but they are often seen as conservative and reluctant to commit time and resources to an ever-changing subject of study unless they can see a clear objective which can be achieved]. This is a goal worth working towards".
