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Creating Around Copyright

dc.contributor.authorFishman, Joseph P.
dc.date.accessioned2016-03-11T18:40:42Z
dc.date.available2016-03-11T18:40:42Z
dc.date.issued2015
dc.identifier.citation128 Harvard Law Review 1333 (2015)en_US
dc.identifier.urihttp://hdl.handle.net/1803/7530
dc.descriptionarticle published in law reviewen_US
dc.description.abstractIt is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate amount of restriction. Drawing from work in cognitive psychology, management studies, and art history, this Article argues that contemporary copyright discourse has overlooked constraint’s generative upside. The Article unpacks the concept of constraint into seven characteristics: source, target, scope, clarity, timing, severity, and polarity. These characteristics function as levers that determine a given constraint’s generative potential. Variation in that potential provides an underappreciated theoretical justification for areas in which copyright law is restrictive, such as the exclusive derivative work right, as well as areas where it is permissive, such as the independent creation and fair use defenses. The Article reveals that the incentives versus access debate that has long dominated copyright theory has misunderstood the relationship between creativity and constraint. Information may want to be free, but creativity does not.en_US
dc.format.extent1 PDF (74 pages)en_US
dc.format.mimetypeapplication/pdf
dc.language.isoen_USen_US
dc.publisherHarvard Law Reviewen_US
dc.subject.lcshCopyrighten_US
dc.subject.lcshCreative abilityen_US
dc.titleCreating Around Copyrighten_US
dc.typeArticleen_US
dc.identifier.ssrn-urihttp://ssrn.com/abstract=2465590


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