Recently, many speakers at conferences and authors in blogs have focused on the seeming conundrum as to who owns the farm data collected and/or created using precision ag technologies, as well as the related question of who must protect the data and how. Many have proposed legislation as an (unlikely) solution, while others have attempted to gain industry agreement as to ownership rules (see e.g., PRIVACY AND SECURITY PRINCIPLES FOR FARM DATA, spearheaded by the American Farm Bureau Federation). And still some have thrown up their hands, almost in dismay, and said these disputes will simply have to be resolved in the courts.
Yet, if one starts with the assumption that farm-generated data is an asset and, therefore, a type of property, it becomes apparent that there is a third alternative: careful contracting. I’m not just referring to the agreements entered into by precision ag companies. Rather, all parties along the field to fork chain should give careful consideration to whether farm data likely will be generated at some point in the process and, if so, who is entitled to own the data and what data protection obligations exist by virtue of this control. The concerned parties include:
- Organic ingredients providers
- Farm machinery companies
- Telematics companies
- Seed companies
- Software developers and service providers
- Other Farm Technology Innovators (the “internet of things”, such as Google Glasses)
- Precision ag service companies/crop consultants
- Data co-ops
- Crop insurance providers
- Lenders/land valuations
- Food manufacturers
- Food sales
Therefore, when an agreement is entered into along the food supply chain, involved parties, as part of their due diligence process should try, to the extent practical, determine whether other agreements in place with data ownership provisions that contradict your intent in entering into the agreement. If there are issues, evaluate their importance to you and consider possible solutions, such as reaching separate agreements along the way, including waiver and indemnification provisions in your agreement, etc.
Also, those working in precision ag should be aware of the wide variety of types of agreements that potentially should address farm data ownership and protection. These include:
- Sale of land
- Equipment purchases (tractors, wearables, drones, etc.)
- Contracts with crop consultants and precision ag service providers
- Contracts to purchase fertilizers, nutrients, herbicides, etc.
- Estate planning documents/Succession plans
- Water rights agreements
- Contracts for sale of goods/sale to food companies
- Crop insurance
- FSA programs
Consider whether any of your customers of potential customers are likely to have types of agreements that fall into these categories. If they do, data ownership and protection should be squarely and thoroughly addressed in any contracts: a simple purchase order will not suffice!
In Part 2 I will discuss the types of provisions that should be included in any precision ag-related agreement, as well as some potential avenues to address disputes that may arise down the road. Stay tuned…