Data-intensive software systems often come with lengthy and complex user agreements, many of which do not explicitly state who has usage and ownership rights of the data generated from the farm. Whether producer-owned or not, it’s important for those signing on the dotted line to understand who exactly has rights to their farm data, and how that data could be potentially used.
Worldwide, more and more farmers are using big-data software systems to increase farm productivity and profitability. A major and often-cited barrier to more widespread adoption, however, is the lack of farmer trust when it comes to data ownership.
That lack of trust can be warranted. Indeed, according to some data law experts, ownership ambiguity can have real-world consequences for farmers, custom applicators, landlords, and data companies themselves.
“Some of the most exciting calls I get are from a new client saying ‘we have some new ag-technology but we have no idea what sort of contracts we need in order to get farmers to sign up,” says Todd Janzen, an American attorney and co-founder of Janzen Agricultural Law LLC – a law firm serving farmers, ag technology providers, and agribusinesses. Janzen also serves as the administrator for the Ag Data Transparent project, a United States non-profit effort to bring transparency to contracts between farmers and technology providers.
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In a presentation to big-data developers and researchers at a conference in Houston, Texas, Janzen explained most of the legal industry (both in and outside the United States) creates new service and product contracts by using pre-existing and readily available legal templates.
Ag-data, however, “is a different type of commodity than the data you have on Facebook or Twitter,” meaning standard user agreements cannot – or likely should not – be used to the same effect. Despite this, the contracts employed by companies offering data services to farmers usually look similar to those required for modern smartphones.
“There’s pages and pages you have to scroll through and accept just to use your phone […] which doesn’t have any benefit for the farmer and makes the trust issue even worse,” he says.
Janzen pointed out that long, confusing contracts are not necessarily indicative of malicious intent on the part of the data service provider. Part of the issue, he says, comes from ambiguity at the top legislative level of the United States and other countries.
There are companies out there that say ‘yes, you own the data,’ but when you read the agreements you find out that they have an unlimited license to do whatever they want with the data
Janzen says data is not a material thing, and the concept of data ownership is therefore very different from owning a house, car, and so on. The lack of a creative element also means ag-data does not fit with intellectual property classifications – specifically as a patent, trademark, or copyright. Ag-data more closely matches the definition of “trade secret” – information that derives economic value because it’s not generally known to the public – but even that, Janzen says, comes with difficulties and has yet to be solidly determined.
In the overall case of the United States, therefore, Janzen says farmers do not own their data under current law.
Another question posed by Janzen asked whether the United States has regulations that could apply to ag data. While statutes protecting personal data like financial information do exist, there is nothing for ag-data. However, Janzen says something like the European Union’s recently introduced “code of conduct” for ag-data – an initiative designed to ensure the transparent and fair sharing of agricultural data – might serve as an initial template in the future;
“There are no laws that specifically protect ag-data in the United States, which means as a lawyer you better make sure the contracts are really clear and people have an understanding of who owns what in those contract,” says Janzen.
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Janzen also stressed the importance of clarifying who “controls” data as well as who owns it. “There are companies out there that say ‘yes, you own the data,’ but when you read the agreements you find out that they have an unlimited license to do whatever they want with the data […] They own it from the standpoint that they can do whatever they want with it,” he says.
“You can be the owner of a car but if you give a teenager the keys and they go out and wreck it, it doesn’t really matter that you own the car, it matters who was in control of the care when it was wrecked.”
Examples where clarification could be important
Janzen provided examples where ownership and control ambiguity could cause potential problems.
Many of these questions, Janzen says, are an explicit focus of the Ag Data Transparent initiative, which operates as a certification program; potential data-system users, that is, can see independent, easy-to-understand evaluations of company software systems. However, Janzen reiterated that Ag Data Transparent does not exist to change the ownership and control policies of the participating companies, just to educate people on what they’re buying into.
According to Karen Hand, researcher in applied biostatistics and research director for the University of Guelph’s Food from Thought program – an initiative focused on using big data to benefit agriculture and biodiversity – Canadian farmers are in a very similar place as their counterparts south of the border.
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Canadian law does not consider data to be physical or intellectual property. Like in the United States, this means inherent data ownership is not guaranteed. Similarly, statutes and other regulations that could protect farmer data, like privacy requirements for financial information, do not exist.
Hand also says the Ag-Data Transparent initiative started by Janzen and his colleagues in the United States has started making inroads within Canada. Farm Credit Canada, a federal crown lending corporation, was the first Canadian company to become compliant with the initiative’s transparency requirements – specifically for its AgExpert farm management software – and requiring the same from any business it partners with.
Just how the question of ownership will be resolved is unforeseen, and jurisdictional differences in how that process develops may be varied. Overall, though, Janzen says more federal regulation is certainly a possibility. In the case of the United States, that would likely mean intervention by congress after a major problem has arisen – something similar to a Facebook’s data breech with Cambridge Analytics, for example.
Janzen also says there may be opportunities to link medical and financial data – which are already protected – with ag data. “In Europe the general data protection regulation doesn’t specifically apply to ag-data, but it could if the ag-data is linked with personal information, which it is in many systems,” he says.
Most of the contracts that are out there are still kind of messy […] they’re not easy for farmers to actually read
Another option – and the one currently in use across much of the western world – is industry self-regulation. “Most of the contracts that are out there are still kind of messy […] they’re not easy for farmers to actually read. At the end of the day, if we did nothing the free market will sort itself out,” says Janzen. “If nobody really cares about the ownership issues we will see that in the marketplace. I don’t know.”
Compromise may play a role in regulation
Regardless of how things develop in the United States and elsewhere, Janzen believes the concept of ag-data sits squarely between the extremes of openly accessible social media information, and highly protected medical and financial information. It’s something that many want to use and share to improve everything from traceability to farm productivity, but elements of privacy and proprietary rights linger.
At the end of Janzen’s conference presentation, a farmer and founder of a data information services co-operative based in Lubbock, Texas, provided the last word.
“The farmers I know, we’re at a place where we just want insights. You don’t have to pay me 100 dollars for that data. Let’s get some insights that we can take back and make some real money with. I don’t want a dollar an acre, I want five dollars and acre, fifty dollars an acre. I really think that’s what data can do for us.” he says.
“When someone authors data, and say, an agronomist takes my yield data and authors something, he’s got a right in that. We’re never going to move this industry if growers say ‘I own the raw data so you can’t use that.’ There’s got to be some balance here.”