The 'Creating Around' Paradox

7 Pages Posted: 21 Mar 2015 Last revised: 16 Jul 2016

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: March 20, 2015


In his article on Creating Around Copyright, Joseph Fishman argues that the constraints imposed by copyright law promote the creativity of subsequent follow-on authors. He suggests that by limiting creative choices, copyright exclusivity may actually enhances the output of follow-on authors by requiring them to “create around” existing works. Yet embedded in Professor Fishman’s theory is a paradox that threatens to disable the putative benefits of creating around. Specifically, the conditions that are necessary for creating around are the same conditions that we would expect to lead to licensing of previously existing works, rather than to the creation of new ones. In other words, it appears that creating around can only occur when we would expect it not to occur. In this essay I illuminate this problem, showing how the logic of Fishman’s argument leads inevitably to this paradox, and I offer several suggestions as to how one might escape the creating around paradox.

Keywords: patent, copyright, creativity, licensing, rent dissipation, patent racing, transaction cost, intellectual property, innovation

JEL Classification: O31, O33, O34, D45, L82

Suggested Citation

Burk, Dan L., The 'Creating Around' Paradox (March 20, 2015). Harvard Law Review Forum, Vol. 128, p. 118, 2015, UC Irvine School of Law Research Paper No. 2015-27, Available at SSRN:

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

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