Proprietary Theory Research Articles

Intellectual property as an independent concept of legal science: a value-legal approach to definition

In the work, the author proved the theoretical and practical expediency of the analysis of intellectual property as a component of the conceptual and categorical apparatus of legal science and an element of legal terminology. It is noted that the subject of the research is important from the point of view of the general methodological importance of studying and improving the concepts and categories of jurisprudence, as well as the terminology used in the acts of law-making. It is pointed out that the ambiguity of the doctrinal understanding of intellectual property, as well as the vagueness of its demarcation from other related categories of legal science (for example, intellectual property law, real property law, copyright law, related rights, patent law, etc.), causes today the ambiguity of the conceptual definition of intellectual property, insufficiency of its legal consolidation as an independent term of jurisprudence.
 The analysis of doctrinal ideas about intellectual property as an independent concept of legal science was carried out and their generalization was carried out within the limits of special-administrative, formal- legal and broad approaches. It is concluded that the spread of the provisions of the proprietary theory of intellectual property and the theory of exclusive rights in legal science led to the polarization of approaches to the conceptual definition of intellectual property. Therefore, today, in the doctrinal plan, intellectual property has a debatable nature of definition, which is determined primarily by its nature and essence.
 The author emphasized that even the specified generalized approaches to defining the concept of intellectual property leave in the shade the main aspect of this legal institution, namely its value-legal dimension. It is the value-legal approach that can be used for the appropriate perception of intellectual property, which accumulates in itself, develops and constitutes an integral part of the system of socio­cultural values. Therefore, the specified approach is methodologically important for the formulation and justification of the appropriate definition of the concept of «intellectual property». The advantages of such an approach to conceptual analysis in theoretical and legal research are that it allows for the formation of cognitive orientation in the knowing subject through the development of ideas about worldview values in nature and society.

On the concept of intellectual rights in the light of their object

This article explores the concept of intellectual rights, introduced by Part 4 of the Civil Code of the Russian Federation to denote the totality of intellectual property rights. The author argues its independence among subjective civil rights not only from property rights, but also from the rights of personality. The development of European Civil Law of the XIX century that led to steady decline of the proprietary theory of intellectual property, simultaneously led to the formation of the theory of personality rights in relation to artistic work. This theory, which understood the work as a continuation of the author’s self, still exerts its influence upon Russian Civil Law and leads to the confusion of intellectual property with inalienable attributes of personality (intangible goods) in the system of objects of civil rights.

Conceptual Framework for Financial Reporting: Problems and Prospects

The objective of this paper is to define the theoretical basis and clarify the fundamental concept of the Conceptual Framework for Financial Reporting (CFFR). This is because the theoretical basis for CFFR has not been properly defined, and the articulation of the fundamental concept in the document does not correspond to its actual meaning. In clarifying, we will analyse these attributes from a critical perspective and propose an alternative articulation.
 We apply a research method widely used in the USA based on semiotics, which construes accounting as a business language and requires analysis of the key accounting concepts from three viewpoints: syntactic, semantic an pragmatic. Two different theories form the theoretical basis for CFFR: the organisation theory and the residual equity theory. We further propose that the articulation of the fundamental concept of “objective of financial reporting” is self-contradictory, which is aggravated by the fact that the document deals with users of financial reporting and their objectives.
 We identify major drawbacks in both theories. The organisation theory requires specific financial reporting which is incompatible with standardisation, and the residual equity theory is extremely difficult to understand and is not completely satisfactory for any of its user groups. These drawbacks and inaccuracies occlude understanding of CFFR and financial reporting.As a result, we propose that it is advisable to do the following when developing the next version of CFFR:
 • define the uniform theoretical basis in CFFR clearly;• use the proprietary theory as the uniform theoretical basis;• the definition of financial reporting oriented to informational needs of company owners should be the fundamental concept of CFFR.
 This will enable CFFR and financial reporting to be simpler understand and the primary needs of all user groups will be satisfied.

A REVIEW AND CRITIQUE OF COMMANDER THEORY

The development of accounting was marked by three key theories namely: the proprietary theory, the entity theory and the fund theory. The commander theory was subsequently introduced to address the criticisms of the previous theories. This paper, therefore, outlines the history and development of the commander theory, it also outlines the essence of the theory and discusses general criticisms levied against it. Despite some apparent weaknesses of the commander theory, one of which is that it is in-ward focused, there-by ignoring those outside the firm, it is simultaneously argued that the commander theory should be viewed as a significant theoretical framework in the formulation of accounting standards.
 JEL Classification Codes: M41.

TheTownsend Journal:Accounting for the Maritime Trade in 1840s Boston Based on B. F. Foster's Approach

ABSTRACTThe 19th century brought on much economic growth and advancement in accounting in the United States. The teaching of accounting began to veer away from rules and instead sought the logical underpinnings of the system. It was a time when accounting evolved into accountancy through the development of theory, such as the proprietary theory and the theory of two-account series. The Townsend Journal (1840–1841), which chronicles the joint venture between two young men in the Boston maritime trade, is a case study of this progression in commerce and accounting during this pivotal time. B. F. Foster's contemporaneous Boston publications on bookkeeping provide the framework to understand this evolution in accountancy, as well as the recordings in the Townsend Journal. Through the examination of the Townsend Journal alongside B. F. Foster's texts, this paper preserves and illustrates a historical link in the evolution of the field.

Theoretical and legal aspects of understanding scientific and technical information as an object of civil relations

The author emphasizes the complex nature of legal regulation of information relations with the priority of using the tools of civil law. It is also argued that STI as an object of intellectual property rights includes such a set of features as: creative nature; originality; novelty; objective form of expression. In addition, the article proves, that information (or scientific and technical information) may fall under the legal protection of both copyright law and legislation on the protection of industrial property rights, provided that they have signs of these objects of intellectual property law. The article analyzes the basic concepts of understanding the rights arising from the objects of intellectual property rights: 1) the theory of understanding the objects of intellectual property rights as objects of property rights (the so-called proprietary theory); 2) the theory of exclusive rights to objects of intellectual property rights, including scientific and technical information. Also the author proves the correctness of the transition to the concept of exclusive property rights to information as an object of intellectual property rights, in connection with a set of such arguments: 1) the right to scientific and technical information and ownership of the thing in which it is embodied, do not depend on each other; b) when the right to scientific and technical information is transferred, there is no transfer of ownership to the form in which it is materialized; c) a thing that is a form of materialization of scientific and technical information is a document, information product, information resource, etc. The author argues that the concept of exclusive intellectual property rights is characterized by such a set of features as: a) includes both property and non-property rights to the objects of intellectual property rights; b) the absolute nature of exclusive rights; c) a specific set of powers, including: the right to use and the right to dispose of this use. d) the right to dispose of an exclusive right, exists in two forms: granting the right and transfer of the right; e) the ownership of all rights to the object of intellectual property rights only to the subject of this right.

Rethinking the Concept of Equity in Accounting: Origin and Attribution of Business Profit

Abstract In this paper I reconsider the concept of equity in corporate accounting from the perspective of the origin and attribution of business profit. In both Financial Accounting Standards Board’s (FASB’s) and International Accounting Standards Board’s (IASB’s) Conceptual Frameworks, shareholders’ equity is synonymous with a firm’s net assets. However, it is not the sole definition of equity. We may regard equity as the interest in the corporate capital itself. From this viewpoint, shareholders’ equity consists of retained earnings attributable to shareholders’ as well as invested capital provided by them. We should note that, under the current corporate accounting system, shareholders are assumed to be the sole residual claimants. However, the existence of implicit contracts in corporate activities implies other residual claimants in addition to shareholders. If shareholders are not the sole residual claimants, it is necessary to revisit the proprietary theory under which equity is identical to shareholders’ equity. In this paper I reconsider the significance of the entity theory, which emphasizes an entity as an organization comprising various stakeholders and attributes business profit above shareholders’ expectations to an entity itself. The ownership interest cannot generate the excess profit by itself. Without firm-specific investments by employees and/or entrepreneurial activities by managers, the excess profit would never emerge. We should critically examine the foundation of the current corporate accounting in order to design a more equitable and efficient corporate accounting in which business profit is attributable not only to shareholders but also to other stakeholders who contribute to its generation.

All Roads lead to Property: Pashukanis, Christie and the Theory of Restorative Justice

Nils Christie is acknowledged generally as the theoretical founding father of restorative justice. Evgeny Pashukanis may be taken as the premier Marxist theoretician of law. This essay represents an endeavour to read Christie through the lens of Pashukanism, that is, to comprehend the theory of restorative justice developed by Christie in relation to the general theory of law formulated by Pashukanis. The early part of the essay is expository: firstly, it sets out in abbreviated form the fundamental tenets of Pashukanis's so-called commodity form theory of law, with some attention being given to the Pashukanist approach to criminal justice; and secondly, it explains the core elements of Christie's theory of restorative justice, including his critique of western criminal justice and his advocacy of a system of "conflicts as property" as the answer to the crisis of criminality which plagues the western world. The latter part of the essay is critical: it compares and contrasts Christie's proprietary theory of restorative justice with Pashukanis's commodity form theory of law. On the one hand, it is argued that there exists a remarkable theoretical concordance between Christie and Pashukanis in the sense that Christie's idea of criminal conflict as property constitutes a non-Marxist vindication of Pashukanis's analysis of the legal form. On the other hand, it is posited that because Pashukanis proceeds from a Marxist perspective and Christie does not, there remain crucial areas of difference between them, especially as regards the historicity of the legal form, the concept of legal subjectivity, and the role of the state. In the light of these differences the essay concludes with a Pashukanist critique of the Christie thesis, seeking to assess the prospects of restorative justice replacing criminal justice as the generalised mode of disposition of criminal conflicts.

Explaining the Trust

This article offers an account of the nature of the trust and the beneficiary's interest under a trust. It distinguishes the obligational and proprietary theories of the trust and explains why each of these traditional approaches falls short as a complete theory of the trust, that is to say the problems of explaining proprietary claims under the obligational theory and the problem of explaining the trustee's duties under the proprietary theory. This includes discussion of accessory liability, the persistent right theory, the idea of dual or split ownership, substantive fusion of law and equity, bona fide purchase and rights as trust property. I suggest an analysis of the trust as an institution with two separate dimensions, a contractual dimension involving personal rights arising from the consent or agreement of the trustee and a proprietary dimension involving proprietary right arising from a grant or transfer of property. I also discuss the remedial regime governing a recipient of trust property, and I consider what trust law implies about the nature of private property.

All Roads Lead to Property: Pashukains, Christie and the Theory of Restorative Justice

Nils Christie is acknowledged generally as the theoretical founding father of restorative justice. Evgeny Pashukanis may be taken as the premier Marxist theoretician of law. This essay represents an endeavour to read Christie through the lens of Pashukanism, that is, to comprehend the theory of restorative justice developed by Christie in relation to the general theory of law formulated by Pashukanis. The early part of the essay is expository: firstly, it sets out in abbreviated form the fundamental tenets of Pashukanis's so-called commodity form theory of law, with some attention being given to the Pashukanist approach to criminal justice; and secondly, it explains the core elements of Christie's theory of restorative justice, including his critique of western criminal justice and his advocacy of a system of "conflicts as property" as the answer to the crisis of criminality which plagues the western world. The latter part of the essay is critical: it compares and contrasts Christie's proprietary theory of restorative justice with Pashukanis's commodity form theory of law. On the one hand, it is argued that there exists a remarkable theoretical concordance between Christie and Pashukanis in the sense that Christie's idea of criminal conflict as property constitutes a non-Marxist vindication of Pashukanis's analysis of the legal form. On the other hand, it is posited that because Pashukanis proceeds from a Marxist perspective and Christie does not, there remain crucial areas of difference between them, especially as regards the historicity of the legal form, the concept of legal subjectivity, and the role of the state. In the light of these differences the essay concludes with a Pashukanist critique of the Christie thesis, seeking to assess the prospects of restorative justice replacing criminal justice as the generalised mode of disposition of criminal conflicts.Keywords: Christie; Pashukanis; Conflicts; Property; Restorative justice; Criminal justice; Legal form; Commodity form; Principle of equivalence; The State; Capitalism

German and French writers: some relevant alternatives to IAS-IFRS conceptual framework

Germany and France have old glory and we wanted to recall some features of the history of their accountants on the threshold of the changing era of international standards. Many theories were put forth by creative European authors; Europeans discussed the personality and materialistic theories, the proprietary theory and the entity theory. In the 20th century, the Germans tried to solve problems of inflation and standardisation, the French tried to introduce a ‘scientific’ approach to accountancy. Then, the even more influential German scholars, like Schmalenbach and others, combined their practical business sense and their systematic aptitude in developing a variety of Bilanztheorien, the French standardised some charts of accounts. The European nations have learned the important lesson to ‘reconcile’ space and time. After centuries of warfare, they finally begun to cooperate closely and have made progress, reflecting their aspirations to establish accounting standards and systems of global dimensions.

George R. Husband: Contributions to the Development of Accounting Thought

George R. Husband, accounting educator, was a leader in research, service and teaching. His former students and admirers endowed a chair, three scholarships and an annual lecture series in his memory nearly forty years after his death in 1958. This article highlights his lasting accomplishments by examining his research (e.g., as an opponent of the LIFO method of inventory valuation, an advocate of price-level accounting and major proponent of the proprietary theory of financial accounting, and as one of the most prolific authors in The Accounting Review), service (e.g., as Vice President and President of the American Accounting Association) and teaching. We also discuss Husband's research in the context of other notable contemporary scholars and those whose works are consistent with Husband's thoughts.

Changing pattern of competitive disadvantage from disclosing financial information

PurposeTo empirically examine the changing pattern of competitive disadvantage experienced by the reporting companies in disclosing segmental information in the Malaysian environment.Design/methodology/approachThe study consists of a final sample of 116 Malaysian companies listed on the Malaysian Bourse for the years 2000‐2002. Four hypotheses were developed to investigate the relationship between segmental information disclosure and competitive disadvantage. Adopting weighted average correlation (WAC) techniques and total performance index (TPI), a multivariate least square regression model was employed to test the four formulated hypotheses.FindingsThe statistical analysis employed provides a mixed pattern yet comprehensive understanding of relationship between segmental information disclosure and competitiveness level among 116 reporting companies listed in Malaysian Bourse from the years of 2000‐2002.Research limitations/implicationsThe proprietary theory assumes at least two forms that differ on the basis of who are included in the proprietary group. Secondly, the existence of discretionary judgments among managers in determining the segment definition, items to be disclosed and level of materiality involved. Lastly, the size of final sample leads to caution in generalizing the analysis.Practical implicationsThe results provide insights to interested groups such as accounting standard bodies, affected companies and the accounting profession, specifically in the Malaysian environment with the introduction of the new standard on segmental information disclosure known as MASB 22 segment reporting.Originality/valueThe study is very timely especially with the introduction of new accounting standard governing segmental reporting by companies in Malaysian financial reporting environment. The great value of this study is highlighted by the effort to empirically investigate the competitive disadvantage experienced by the reporting companies as they disclose segmental information as required by the new standard.

An analysis of the development of accounting knowledge: A pragmatic approach

At the turn of the century, an emerging corporate economy created stark contradictions between individualistic economic theories and actual economic conditions in the United States. I use the pragmatic concept of deliberation to examine proprietary theory in order to highlight the important role that accounting knowledge and expertise played in resolving this conflict. The analysis highlights the naturalistic tenor of proprietary discourse and the discrepancy between the discourse and the techniques that proprietary theorists adopted. I conclude with an examination of the commitment that proprietary theorists made, a discussion of how those commitments are reflected in contemporary research, and a suggestion that we adopt a pragmatic perspective to analyse the role of our discipline in today's society.

SOME CONTRIBUTIONS OF AND SOME CONTROVERSIES SURROUNDING THOMAS JONES AND BENJAMIN FRANKLIN FOSTER

Thomas Jones and Benjamin Franklin Foster were two early American accounting textbook authors and teachers. Their careers, spanning the middle of the nineteenth century, occurred during a time of relatively little professional activity and interchange—causing their achievements to appear even more noteworthy. While Jones did not originate the proprietary theory, he was an early advocate of financial statements and not ledger balances as the culmination of bookkeeping. While Foster appears to have made little original contribution, the wide use of his texts appears to have encouraged greater reliance on a theoretical understanding of bookkeeping.

Standard setting and the entity-proprietary debate

This study identifies the proprietary theory as the predominant viewpoint of surveyed certified public accountants (CPAs). The findings establish a relationship between accounting information and the behavior of accounting information attestors and disclose a determinant of the processes influencing CPAs' reactions to accounting standard setting. Further, given that general agreement among practitioners is necessary for the successful implementation of accounting standards, the proprietary theory could provide a normative basis from which to derive authoritative pronouncements that are acceptable to practising accountants.