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AgTech Intellectual Property Rights

How will we support data exchanges in agriculture?

As agriculture becomes increasingly digital and mobile via increasing use of consumer devices (smartphones, tablets, etc.), it is important to understand how data is being collected, interpreted, and utilized. Moreover, data sharing is going to be fundamental to deriving value from data analytics in agriculture. The absence of legal and regulatory frameworks around the collection, sharing and use of agricultural data contributes to the range of challenges currently being faced by farmers considering adoption of smart farming technologies.

Agri data is neither recognised under traditional type of property (land, building, good and animals) nor any traditional intellectual property (patent, trademark and copyright). Still many existing laws potentially influence the ownership, control of and access to data. For example, legal liability of an autonomous tractor drive over someone else’s scarecrow. Is the liable party in such a case the software coders, the owner of the tractor, the manufacturer of the tractor, all of these parties jointly and severably, or someone else entirely?

This issue might be further complicated and differentiated by the fact that companies like John Deere, claim that the farmers that operate their tractors do not actually own the software that they are running on, nor do they have the right to alter or fix any code in their tractors. But runaway vehicles are not the only concern that farmers have with their autonomous tractors. The robots designed to collect and analyze millions of data points that relate to animal welfare, soil quality, crop quality, and the output or utilization of seed types are often part of the internet-of-things environment.

As on date, the best solution for managing of agri data seems to be, “individual contract agreements to treat agri data as a protected trade secret”. Contract Agreement could include the following 10 points to make sure that the agreement is fool-proof.

  1. Consent: Collection, access and use of farm data should include consent of the farmer with proper signed (or digital) agreement. 
  2. Notification: Farmers must be notified for the collected data with proper details about it’s usage.
  3. Complaint Redressal: Proper complaint redressal mechanism with full transparency.
  4. Features: Defining the availability of services and features when the farmer make choices for opt-in and opt-out.
  5. Portability: Data portability and data retrieval for storage and usage in other systems.
  6. Confidentiality: A clause for not sharing or disclosing the farm data with a third party in any matter that is inconsistent with the contract agreement.
  7. Retrieval: Farmer should have the authority to discontinue the services and collection of data. Services discontinuation should be supported with an option of retrieval and secured destruction of collected data.
  8. Misuse protection: Prohibition of data for anti-competitive activities like speculation in commodity markets based on inputs from the farm data.
  9. Safeguards: Clearly define liability and security safeguards for loss or unauthorized access, destruction, use, modification and disclosure. 
  10. Policy: Notice and response policy for agreement breach.

All the stakeholders in AgTech sector should ensure that Farmers have the opportunity to easily extract their agricultural datasets from one device to another so that they can migrate to a different system, potentially incompatible with the one they are currently using.

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