Wednesday, March 11, 2015

New paper: response to Fishman's Creating Around Copyright

Joseph Fishman's article Creating Around Copyright was just published in the Harvard Law Review. Abstract:
It 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.
My response is here. A brief taste:
Most copyright restrictionists, of whom I count myself one, don’t want to eliminate all copyright law. Fishman’s argument is directed at creators who want to take an existing work and do something with it — incorporate parts of it into a new creative work or make a derivative work based on it. Because the question is the proper scope of copyright as applied to these works, the comparison should not be to a world without copyright, but should instead focus on the marginal effects of expanding or contracting copyright’s definitions of substantial similarity and derivative works. Once the question is properly framed, I have concerns about the major analogies Fishman uses — patent law and experimental evidence about other types of constraints on creativity — as well as his model of the rational creator.
... Neither information nor creativity wants to be free (or chained), because neither of those concepts wants anything. People do. And when copyright restrictionists speak of “freedom,” it’s not because we want to make up our own languages or breathe on the moon, awesome as that might be. It’s because broad copyright produces specific winners and losers, and the winners are gaining too much at the expense of the losers.
Dan Burk also has a response, here.


  1. I also had a few comments ( , essentially along the lines that the treatment of copyright as a singular constraint that just varies by questions of degree seemed a bit reductionist.

  2. msirichit6:21 PM

    Copyright has been about economic control, thus it creates specific and few winners. But freeing up content too much can also hurt consumers given that massive of user-generated content are being exploited for free in social media.

    Everyone now creates both content and personal information online which are being used for free by the intermediaries. We must admit that the American idea of public domain that wants to "free up" everything partly contributes to what is now going wrong on the internet. The European have a rather different idea about "public domain"; for them this cannot be completely free. Thus we are now seeing litigation against the like Google based on moral rights or data protection law (like "right to be forgotten").

    Personally I think analyzing creativity under an economic perspective is like assuming that people born with high IQ are gonna be rich. Totally groundless. TV deals for live sport broadcast are extremely profitable; but sport events are barely copyrightable (though they are great entertainment). Creativity, as level of intelligence, should be considered a part of personality rather than a tool for making profit. I feel that moral rights will become more important in the 21st century as a form of internet governance - or maybe as a reaction to the expanding concept of "public domain" as it is used now.