Page:The digital public domain.pdf/35

8 developments in commons theory have been coupled by efforts to turn theory into practice. For example, Creative Commons and the free and open-source software movement have created a commons through private agreement and technological implementation. Again, private firms in the biotechnological and software fields, have decided to forgo property rights to reduce transaction costs. The issue of voluntary sharing, private ordering and contractually constructed commons was widely investigated at the first and second Communia conferences.

The emergence and growth of an environmental movement for the public domain and, in particular, the digital public domain, is morphing the public domain into the commons. The public domain is our cultural commons: it is like our air, water and forests. We must look at it as a shared resource that cannot be commodified. As much as water, knowledge cannot be constructed mainly as a profitable commodity, as recently argued by Stefano Rodota, one of the members of the Communia Advisory Committee. As for the natural environment, the public domain and the cultural commons that it embodies need to enjoy a sustainable development. There is also a need, as for the natural environment, to promote a “balanced and sustainable development” of our cultural environment as a fundamental right that is rooted in the Charter of Fundamental Rights of the European Union. As we will detail later in this report, overreaching property theory and overly protective copyright law disrupt the delicate tension between access and protection. Unsustainable cultural development, enclosure and commodification of our cultural commons will produce cultural catastrophes. As unsustainable environmental development has polluted our air, contaminated our water, mutilated our forests, and disfigured our natural landscape, unsustainable