Digitisation and the rapidly growing Internet of Things – millions of devices that communicate with each other through the internet – will transform many aspects of the economy over coming decades. This transformation is already well underway in agriculture as digital technology is increasingly utilised across all farming sectors. Sensing technology is being applied to machinery, in paddocks and on animals and equipment to gather data and to provide information for farming decision support.
Much of this technology is not new at all. Global positioning system (GPS) enabled machinery has been used in cropping systems for decades, allowing for precision planting, yield monitoring and variable rate application of seed and chemicals. In livestock systems, breeding programs are supported with sophisticated databases, and in intensive animal production systems electronic animal identification enables the management of health and productivity of individual animals. Irrigated industries are well versed in the use of water level and soil moisture sensing technologies. Using satellite and drone generated images to check pastures and crops for disease and pests is not uncommon.
Despite this long continuum of technology utilisation in agricultural fields, the investment and business worlds have suddenly woken up to the potential commercial realities. Unprecedented funding is flowing into a vast array of technologies, many designed to monitor every aspect of farming systems in ways not previously imagined, generating vast torrents of data, including production, machine use, and financial information.
These streams of data have value both behind and beyond the farm gate, and many new ventures as well as existing businesses in agricultural supply chains are keen to get access to aggregated farm data sets. Big data analysis provides the ability to identify industry wide trends and correlations that will lead to new expert systems and value creation along supply chains.
With this new data driven agriculture come a range of questions about data ownership, privacy, usage and control. When data is generated on a farm, and relates directly to the farm business, how that data is generated, used, stored and what happens to it beyond the farm gate are all issues of concern to tech savvy farm business owners.
The farm sector in the USA has responded to these issues much more quickly than its Australian counterpart. In 2015, a coalition of farm organisations and agriculture technology providers (ATPs) led by the American Farm Bureau Federation developed a set of Farm Data Privacy and Security Principles designed to protect the interests of farmers (see http://www.fb.org/issues/bigdata/privacysecurityprinciplesfarmdata.html). No such principles have yet been adopted by the farm sector in Australia.
Potential legal issues
Farmers who themselves collect data generated on their own farming operations have an undeniable interest in controlling the dissemination of that data. First, there are commercial considerations: if the data can be commercially exploited by being licensed, the farmer might wish to share in the resulting profits; and if the data provides insights into the farmer’s practices, the farmer might want to prevent competitors or suppliers from using those insights to the farmer’s commercial disadvantage. Secondly, there are risk considerations for the farmer: sensitive data such as information on land management, environmental degradation, contamination and the presence of pests and diseases might be prejudicial in the hands of regulators, insurers, landlords and litigants.
Under Australian law, information itself cannot be ‘owned’. There are, however, legal principles which provide the creators of information certain rights similar to the rights of ownership:
- where the particular form in which information is expressed is sufficiently original, it can attract copyright protection, which gives the copyright owner the right to prevent the reproduction of that particular form of expression (for example, the owner of copyright in a poem can prevent the text of a poem being published on the Internet); and
- if the information is secret, a person who is entrusted with the information or who improperly obtains it can be ordered by a court to stop using and disclosing it, and to account for profits gained from its commercial use.
- under Australian privacy laws, an individual has a measure of control over the collection, handling and disclosure of information that identifies him or her; and
- through a legally-binding contract, a party providing information may impose on the recipient obligations relating to the protection, use and disclosure of specified information.
Farmers cannot safely assume that farm data qualifies as copyright material, confidential information or personal information. Consequently, using contracts is the most reliable means to ensure appropriate legal protection for farm data. Any farmer who intends to share data they generate would be well advised to have a suitable, legally-binding contract in place with the data recipient.
Any contract relating to the sharing of farm data should cover, at a minimum:
- how the data must be kept secure by the recipient and protected against unauthorised access and use;
- how the data may legitimately be used, and whether it may be aggregated with other data or further disseminated;
- if agreeable to the parties, the remuneration payable to the farmer for the recipient’s right to use the data;
- obligations on the recipient to notify the farmer of any breach of data security that results in the disclosure of the farmer’s data to a third party;
- any limitations on the farmer’s liability for losses resulting from the possession or use of the data by the recipient and third parties; and
- the privacy obligations in relation to any data that is personal information, such as an obligation to de-identify the data and return it when it is no longer required by the recipient.
Where farm data is collected by ATPs, rather than the farmers themselves, there is an even greater legal imperative for farmers to ensure the security, and to control the use, of data collected from their operations. However, it can be difficult for farmers to ensure appropriate contracts are in place with the collecting organisations. There are various reasons for this:
- While equipment that an ATP supplies might generate data for the ATP to collect, the contract for the supply of the equipment will often not adequately address data issues.
- Farmers may be unaware of the extent to which new technologies and products provided by ATPs are generating data about their fields, crops, and output, and how this data will be used by the ATP.
- Some equipment supply contracts can be obscure and difficult to interpret.
- In addition, some ATPs might be reluctant to vary their standard contracts to provide farmers with the necessary legal protection for data that the ATP collects.
- Finally, smaller farm operations might have little commercial leverage to negotiate appropriate protections into contracts with ATPs, or to compel ATPs to enter into separate, data protection contracts.
In the USA, these concerns have been addressed to some extent through the Ag Data Transparency Evaluator, a tool which analyses data sharing contracts using a standard set of ten questions based on the Privacy and Security Principles for Farm Data. ATPs are encouraged to voluntarily submit their standard contracts to the Ag Data Transparency Evaluator, and contracts that are found to meet the specified criteria receive an ‘Ag Data Transparent’ certification seal. This process assists farmers to easily identify the key provisions in their contracts with ATPs governing the ownership, use and sharing of data. Not only this, but the process also enables farmers to ‘shop around’ for the technology offering that best meets their data protection needs.
The increasing use of digital technology in the agriculture sector offers exciting possibilities for the farm sector, yet it also raises significant concerns from a legal perspective in relation to the use and protection of data. The growing commercialisation of farm data signals a need to develop a more sophisticated dialogue between farmers, ATPs and other third parties in relation to the use, control and protection of farm data. Dialogue between stakeholders on the issues outlined in this article appears to be less well-advanced in Australia than in the USA.
In light of the particular issues associated with the sharing of farm data, there may be value in the Australian farming sector adopting principles and processes similar to the Privacy and Security Principles for Farm Data and the Ag Data Transparency Evaluator which are currently in place in the USA. Although such tools would not have the force of law, they would at the very least kick-start a much needed discussion of the issues between those on either side of the farm gate.
At the individual level, innovative Australian farmers might also seek to take further steps in safeguarding their businesses and realising the potential downstream value of data generated on their farms, by scrutinising and negotiating contracts which pertain to the data. This is new territory for many farm business owners, but with the impending digital transformation of agriculture, it is territory that could be well worth exploring.
This article was written by Andrea Koch, Consultant (Big Soil Data) and John Gray, Partner and Martha Campbell, Associate (HWL Ebsworth Lawyers).