Jansen-Duvall-OBrian photo
Todd Janzen, left, Janzen Ag Law, Indianapolis, Ind., visits with American Farm Bureau Federation President Zippy Duvall, and Scott O’Brian, West Point, Miss., at the Mississippi Farm Bureau Federation Summer Commodity Conference.

Ag data ownership: Think of it as a trade secret

The way U.S. law is structured, says Attorney Todd Janzen, “There isn’t any category into which ag data neatly fits."

Not so long ago, says Todd Janzen, farm data was “what happened at the local grain elevator or farm supply store, where farmers talked with each other about crop conditions, the equipment they were using, the inputs they were buying, the yields they were getting.”

But today, when everything on the farm — from planters to irrigation rigs to combines — generates massive amounts of data, “farmers upload all that information into cloud-based systems, give it to someone else, and in return for giving up that data, hopefully get something in return in the form of detailed prescriptions about how to grow better crops on their land.”

And therein, says Janzen, who heads the Janzen Ag Law firm at Indianapolis, Ind., lies one big overriding question for many farmers,: Who owns the data?

“All the ag companies like to say the farmer owns the data,” he said at the Mississippi Farm Bureau Federation’s Summer Commodity Conference at Mississippi State University. “That’s pretty much the standard response. But it’s really a much more complicated issue. It’s one thing for them to say the farmer owns the data, but there’s usually a sentence in their agreements that says something like,  ‘You authorize us to replicate the data and make as many copies as we want once you give it to us.’ So, ownership doesn’t really have a lot of meaning.”

Ag data isn’t just the stream of bits and bytes generated by a combine yield monitor or other machine, Janzen says. “It can be agronomic data, land data, farm management data, machinery data, and livestock data.

msg precision farming

Dr. Jody Czarnecki, assistant research professor at Mississippi State University, explains the use of UAVs and other data-generating systems to Mississippi Farm Bureau Federation members attending the organization's Summer Commodity Conference.

“If you think about ownership in the normal sense, and apply that to data you’re generating on the farm, there are differences. Ownership normally comes with a bundle of rights in the law: You’re allowed to possess something, use it, enjoy it, exclude others from using it, transfer it, consume it, or destroy it. But can we apply those same tenets to ag data? Is there something in U.S. law that already protects ag data?”

The way U.S. law is structured, he says, “there isn’t any category into which ag data neatly fits. It’s not a patent, it’s not a copyrighted work, it’s not a trademark. So, if you say the farmer owns his data, and that it has some value as far as ownership goes, we have to think of it in terms of a trade secret.

“A trade secret is something that not every Tom, Dick, and Harry can see — probably the best-known trade secret is the formula for Coca-Cola — and it is something that has economic value. In U.S. law, when we think about protecting ag data, we have to look upon it as a trade secret.”

There isn’t any other law on the books that offers protection for that data, Janzen says. “Medical information is protected by statute; financial information is protected by laws. But nothing in the law prevents a company from selling your ag data to someone else who wants to use it to market something to you.”

Even though many farms are now generating vast amounts of data, “ownership is still a real issue,” Janzen says, “and I think we’ve got a couple of years to solve it before everyone’s ag data is transferred to third party vendors and there’s not much we can do about it.”

The American Farm Bureau Federation has been instrumental in putting together a coalition to develop core principles to protect ag data, he notes. “Thirty-seven companies have signed on to this set of principles — it’s sort of like the Good Housekeeping Seal of Approval. If you see the Ag Data Transparent seal on a company’s contracts, it means that company has submitted those contracts for rigorous review, that they do what they say with ag data, and it has been verified that their contracts are accurate.”

See the core principles at http://bit.ly/2tEHuDK

There is a website, he says, where companies answer questions about what they do with agricultural data (http://agdatatransparent.com)

“As of today,” Janzen says, “only eight companies have obtained the Ag Data Transparent seal. A few others are in the works. There really is no excuse that we don’t have 100 companies on the list. But they’re waiting to see if this issue of ag data ownership is one that farmers really care about, or whether farmers will just give them their data without the companies having to become ag data transparent.

“Go to the website, check it out. If your ag retailer or machinery company asks you to sign up for their platform and send them your ag data, and you don’t see the seal, ask if they’re Ag Data Transparent. If they say they are, ask why they don’t display the seal on their materials. Hopefully, more companies will become a part of this movement.”

Today, Janzen says, “A lot of people are trying to move data into a particular ‘cloud’. But eventually, all these clouds are going to be talking to each other. We’re beginning to see this already. If you use the John Deere Operations Center, for example, it integrates all sorts of other programs that are out there.

“This movement of data is not just a two-way street, but rather a whole universe of connections. In the future, we’ll see even more data sharing, and that will raise even more issues.”

“I love to hear from people who read my comments,” he says. Check his blog at http://aglaw.us

See all the photos from the Summer Commodity Conference here: http://bit.ly/2tc0KZb

 

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