稀缺、产权、不负责任:知识产权如何应对被忽视的热带疾病。

IF 0.8 Q2 LAW LAW AND CRITIQUE Pub Date : 2023-01-01 Epub Date: 2022-06-25 DOI:10.1007/s10978-022-09324-3
Daniel Pinheiro Astone
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引用次数: 1

摘要

这篇文章探讨了稀缺性在谈判知识产权与交易成本经济学所理解的产权之间关系中的作用,特别是从法律经济的角度,以揭示那些患有被忽视的热带疾病的人所面临的僵局。支持知识商品贸易(即基本药物专利)的法律和经济基础的一致性受到Scott Veitch关于法律不负责任的学术研究的制约。知识产权体系运作所产生的损害被登记在负面公共领域的新概念中,主要是由于缺乏最终负担不起的治疗方法,或者是由于创新导致新药没有通过价格信号得到足够的激励。考虑到对此类损害的问责,认为否定责任是由消极的公共领域促成的,通过权利语言构建积极的回应是平衡的。因此,责任本身得以保留,避免了特乌布纳法律悖论的一个实例,但由于设计而变得无效。换言之,即使受NTD影响的人所遭受的伤害可以追溯到知识产权系统的运作,也没有人要追究责任。通过这篇文章追求的主要目标是明确这样一种安排,将稀缺性的概念及其在法律和经济理论之间的相互作用置于中心地位,同时将负面公共领域作为不负责任的实际后果所在的新概念,以期在后续作品中为进一步的批评提供信息。
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Scarcity, Property Rights, Irresponsibility: How Intellectual Property Deals with Neglected Tropical Diseases.

The article addresses the role of scarcity in negotiating the relationship between intellectual property, particularly from a legal-economic perspective, and property rights, as understood by transaction cost economics, to shed light on the deadlock faced by those suffering from neglected tropical diseases (NTDs). The consistency of the law and economics fundamentals that support the trade on knowledge goods, namely patents on essential medicines, is put under check by Scott Veitch's scholarship on legal irresponsibility. The damages that emerge from the operations of the intellectual property system are registered in the novel concept of negative public domain, and are due mainly to the lack of access to treatments that end up being unaffordable, or to innovation that leads to new drugs that is not sufficiently incentivised though price signals. The accountability for such damages is taken into consideration by arguing that the disavowal of responsibility is made possible by the negative public domain, which is balanced by the construction of a positive response through the language of rights. As such, responsibility per se is preserved, evading one instantiation of Teubner's legal paradoxes, but rendered ineffective by design. In other words, even if the harms endured by those affected by the NTDs can be traced back to the operations of the intellectual property system, there is no one to hold accountable. The main goal pursued through the article is to make such an arrangement explicit, by giving centrality to the notion of scarcity and its interplay between legal and economic theory, alongside the novel concept of negative public domain as a site where the actual consequences of irresponsibility lie, to hopefully inform further critique in subsequent works.

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来源期刊
CiteScore
2.30
自引率
25.00%
发文量
19
期刊介绍: Law and Critique is the prime international critical legal theory journal. It has been published for 20 years and is associated with the Critical Legal Conference. Law and Critique covers all aspects of legal theory, jurisprudence and substantive law that are approached from a critical perspective. Law and Critique has introduced into legal scholarship a variety of schools of thought, such as postmodernism; feminism; queer theory; critical race theory; literary approaches to law; psychoanalysis; law and the humanities; law and aesthetics and post-colonialism. Postmodern jurisprudence, law and aesthetics and law and psychoanalysis were pioneered in Law and Critique which remains the most authoritative international source for these schools of thought. Law and Critique is keen to translate and incorporate non-English critical legal thought. More specifically, Law and Critique encourages the submission of articles in the areas of critical legal theory and history, law and literature, law and psychoanalysis, feminist legal theory, critical race theory, law and post-colonialism; postmodern jurisprudence, law and aesthetics; legal phenomenology; and law and autopoiesis. Past special issues include: ''Critical Legal Education''; ''The Gender of Law''; ''Law and Postmodernism''; ''Law and Literature''; ''Law and Post-colonialism'', ''Law and Theatre''; ''Jean-Luc Nancy and Law''; ''Agamben and Law''. Law and Critique is ranked amongst the top 20 per cent of law journals by the Australian Research Council.
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