United States copyright law has a reputation as a tangled mess of overlapping legal doctrines. Although commonly maligned, this redundancy can play a positive role. Redundancy that is well-designed and implemented can achieve a better balance between copyright law’s benefits and costs, safeguard interests in competition and technological innovation, improve protection of freedom of speech, and enable flexibility and doctrinal evolution. On the other hand, doctrinal redundancy can have unfortunate results when it is excessive or otherwise unmoored from underlying purpose. Design principles of redundancy and antiredundancy are thus virtually tailor-made to analyze copyright law’s structure in search of identifying potential justifications, flaws, and opportunities for reform. Building on prior work on legal redundancy and on copyright doctrine, this Article examines the promise and risks of doctrinal redundancy as a design principle for copyright. Specifically, the Article analyzes redundancy in four areas of copyright doctrine: (1) fair use and non-functionality; (2) fair use and improper appropriation; (3) copyrightable subject matter and originality; and (4) the reproduction and derivative-work rights. The analysis indicates that distinct but overlapping doctrines of fair use, originality, and copyrightable subject matter can better police the boundaries of an expansive copyright regime than could a single doctrine alone. Such reinforced policing is particularly important to secure interests in free speech and competition against improper copyright encroachment. In contrast, however, there is reason to question the social value of redundancy as embodied in distinctly identified rights in making reproductions and derivative works. More generally, our analysis illustrates how attention to the structural design of legal doctrine can help to improve the content and operation of law.
Bracha, Oren and Golden, John M., "Redundancy and Anti-Redundancy in Copyright" (2019). Connecticut Law Review. 414.