Editor's Note: Todd Janzen, attorney at Plews Shadley Racher & Braun LLP in Indianapolis, grew up on a Kansas grain and livestock farm and now practices law in the at the intersection of ag and technology. Todd is chair of the American Bar Association’s Agricultural Management Committee and authors a blog addressing legal issues facing agriculture. You can see more posts from Todd at JanzenAgLaw.com.
I often hear other attorneys say that agronomic farm data is just like other forms of intellectual property, and that the issues farmers are confronting have already been dealt with in other areas of law. But the truth is that agronomic farm data is unlike any other form of property. Agronomic data is unique. As a result, how much protection the law will ultimately afford farmers for their agronomic data is an open question. This post explains why agronomic data is different than other forms of intellectual property.
1. Agronomic data isn't necessarily copyrightable. Copyright exists to protect creative works. Examples include music, books and literary works, pictures, videos, and sculptures. Software can also be copyrighted. Agronomic farm data doesn’t neatly fit into the category of copyrightable work since it lacks the creative element of these other art forms. For example, there is little creativity in the pattern a farmer makes when crisscrossing a field to plant corn. Likewise, when a combine generates yield data for a field, the farmer isn't authoring the yield map—the combine is creating that. The combine is not a creative author. I’m not prepared to say that farm data can never be copyrighted, but for the most part, copyright is not a good fit.
2. Agronomic data isn't patentable. A patent must be new, useful, and not obvious. The Segway scooter is a great example of a patentable invention. Agronomic data doesn't fit this mold. While data is certainly useful, it lacks the “new” or “non-obvious” elements required for patent protection. From a practical standpoint, no farmer is going spend the time or money to navigate the patent process to try to patent their farm data anyway.
3. Agronomic data is inherently private. Intellectual property is protected so that authors can disseminate their work without fear it will be stolen. Farmers, for the most part, don’t want to share their data with others about how they farm. They want to keep this information private, only sharing with their trusted advisers as necessary to increase yield. While a software programmer wants to license their program to millions of users, farmers generally don't want to share their agronomic data. (Would farmers feel differently if they could license their data for a fee? My guess is yes!)
4. Agronomic data is tied to the land where it was generated. There are many forms of agronomic data, such as planting population, hybrid selection, yield data, pesticide application, etc. These data sets have value because they are tied to real property. That’s because each parcel of land is unique. The soil is unique. The weather is unique. The atmosphere above the land is unique. One cannot use the agronomic data generated on parcel X and apply to parcel Y without having a good understanding of the land. For example, yield information on a cornfield with sandy soils and low rainfall is not necessarily valuable when applied to a field with loamy soils and high rainfall. Without connecting the agronomic data to the land, the data is of limited value.
Still, these unique characteristics do not mean agronomic data is without any protection under the law. Such data may ultimately be considered a “trade secret” of the farmer. I’ll discuss this concept in a future post.
