Copyrighted works boast two features that distinguish them from tangible types of property: non-rivalry in consumption together with low marginal costs of reproduction and distribution. But many types of copyrighted works--and notably valuable ones like movies, books, and software--cost a good deal to initially produce. Hence the utilitarian justification for copyright laws.
There exist other mechanisms for encouraging the production of expressive works. These alternative institutions--such as tips, patronage, automated rights management, and contract--arguably give a potential author less incentive to become an actual author, however, than does copyright law. More to the point, those alternatives to the copyright system threaten to underproduce expressive works.
Population growth may well redeem copyright's competitors. Holding all else equal, an increase in the number of potential authors will increase the number of potential works. The relatively low cost of jointly consuming copyrighted works--their non-rivalry--should certainly hold equal across varying population size. Thanks to the digital intermedia, moreover, the marginal costs of reproducing and distributing copyrighted works ought to hold steady as population swells. Perhaps, thanks to network effects, those "retail" costs of copyright will drop. No other variable appears likely to alter the resulting trend: As population increases, expressive works grow cheaper.
Perhaps a lightly populated, large, and semi-agricultural State with slow and costly communications requires copyright law to encourage an adequate production of expressive works. It seems that those who wrote and ratified the U.S. Constitution thought as much. But however well that justification for copyright worked in years past, it works decreasingly well now. Looking forward, we can not only imagine a world where generosity, technology, and common law rights supplant copyright law, we can aspire to it.
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