Blog By: Lydia Deaton
As technology advances in agriculture, farmers have more access to data and information to improve their processes. From satellite imaging to real-time analytics on crop growth, today, many agricultural operations depend on streams of data to produce efficiently and effectively.[i] With this digital dependence comes a serious risk: data security.[ii] As farmers and other producers harness big data, they may also face data breaches and production and data use disruptions, which could lead to food supply chain issues.[iii] While data security laws attempt to solve this issue, they often fall short.[iv] Intellectual property protections may provide a way to safeguard farmers’ critical data assets and help ensure that the agricultural community can minimize the risks of using new technologies.
Modern farming is no longer solely dependent on traditional tools. Today, agricultural operations are engaged in the smart farming movement.[v] Through smart farming, producers can monitor operational conditions and even take new actions.[vi] The use of these technologies provides producers with the ability to adapt more quickly and operate more efficiently than they would be able to with traditional tools, while staying involved in the production process.[vii] In recent years, producers lost valuable insight into their operations and lost access to critical data due to data breaches.[viii] Many countries, including the E.U., have adopted some agricultural-specific data measures, but the U.S. has been limited in specific protections for agricultural data.[ix] However, it is crucial that agricultural-specific protections address the unique challenges of the industry as smart farming becomes the norm.[x]
Intellectual property (IP) may provide various ways to protect agricultural data through copyright, trade secrets, and patent laws. Each of these doctrines has its own unique benefits and trade-offs. Copyright, for example, may protect data sets, but only those that can be distinguished from mere facts and fulfill copyright original expression requirements.[xi] Trade secret law, however, could protect all of the data but risks losing its protections through sharing the data or information.[xii] Finally, patent law offers protections for software and methods but does not cover the data itself.[xiii] Combining these doctrines with data-specific protections offers agricultural producers a robust solution to protect their data security.[xiv]
Currently, IP laws do not recognize specific applications for agriculture.[xv] Congress can and should consider legislation that directly provides IP protections for agricultural data.[xvi] By creating special provisions that recognize agricultural-specific uses within IP, producers would see increased protections without the need for additional regulatory oversight.[xvii] These protections through the various IP doctrines would provide a dual layer of protection for producers. To do this, industry professionals and farmers alike need to continue showing support for additional protections unique to agricultural data security.[xviii]
While it is unclear when or how farmers and producers should begin protecting their farming data, it is clear that data security is becoming extremely important within agriculture. IP protections may provide one avenue toward a solution. By Congress acting to create agricultural-specific protections within IP, IP can serve as a cornerstone in providing a solution to modern data problems.
[i] Tesh Dagne, Where Copyright Meets Privacy in the Big Data Era: Access to and Control Over User Data in Agriculture and the Role of Copyright, 24 Vand. J. Ent. & Tech. L. 675, 688 (2022).
[ii] GIAC Cyber Security Discussion Paper, USDA Agric. Mktg. Serv. (Oct. 23, 2024, 12:30 PM), https://www.ams.usda.gov/about-ams/giac-may-2024-meeting/cybersecurity [https://perma.cc/P44H-RPWM].
[iii] Id.
[iv] Dagne, supra note i, at 677.
[v] Sjakk Wolfert et al., Big Data in Smart Farming- A Review, 153 Agric. Sys. 69, 69 (2017).
[vi] Dagne, supra note i, at 686-87.
[vii] Id.
[viii] Id.
[ix] Anselm Sanders, Intellectual property in digital agriculture, Law, Innovation, and Tech., Mar. 14, 2022, at 113-27.
[x] Id.
[xi] Dagne, supra note i, at 721-22.
[xii] Farm Data Ownership and Intellectual Property Laws, Ctr. for Int’l Governance Innovation (Oct. 28, 2024, 12:14 PM), https://www.cigionline.org/static/documents/DPH-paper-Mahatab_Uddin.pdf [https://perma.cc/3DKV-9XSK].
[xiii] Id.
[xiv] Id.
[xv] Jennifer Zwagerman, Agriculture & Data Privacy: I Want A Hipaa(Potamus) For Christmas… Maybe, 8 Tex. A&M L. Rev. 685, 729 (2021).
[xvi] Id.
[xvii] Id.
[xviii] Id. at 730.