Page:The digital public domain.pdf/47

20 to Hugenholtz and Lucie Guibault, the public domain is under pressure from the “commodification of information”.

"[T]he public domain is under pressure as a result of the ongoing march towards an information economy. Items of information, which in the “old” economy had little or no economic value, such as factual data, personal data, genetic information and pure ideas, have acquired independent economic value in the current information age, and consequently become the object of property rights making the information a tradable commodity. This so-called “commodification of information”, although usually discussed in the context of intellectual property law, is occurring in a wide range of legal domains, including the law of contract, privacy law, broadcasting and telecommunications law."

Commodification of information is propelled by the ability of new technologies to capture resources previously unowned and unprotected, as in a new digital land grab.

However, this digital land grab is the continuation of a well-settled analogue trend whose limits and fallacies have already been shown and rebutted. In the past, law and economics scholars have launched a crusade to expose the evil of the commons, the evil of not propertising. A much-quoted article written by Garret Hardin in 1968 termed the evil of not propertizing as the tragedy of the commons. Hardin identified the tragedy of the commons in the environmental dysfunctions of overuse and underinvestment found in the absence of a private property regime. He made it clear that any commons open to all, ungoverned by custom or law, will eventually collapse. The fear of the tragedy of the commons propelled the idea that more property rights will necessarily lead to the production of more information together with the enhancement of its