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‘A Hard Sell’

Farmers Wary on Giving Up Data to Big Ag Firms

By Christopher Adams

Iowa farmer Jeff Frank has used precision technology for years. He believes in it.

He helped ag giant Monsanto — absorbed by Bayer in 2018 — break ground on its acquired Precision Planting technology and digital-agriculture platform FieldView a few years back.

He even sold drones for a while.

However, the soybean grower from Auburn, Iowa, told Digital Privacy News that Big Ag’s help and farmers’ data could make producers uneasy.

“All the privacy things came up because farmers are afraid.”

Jeff Frank, Iowa soybean farmer.

Much of their data now includes aerial images of their property and crops — and that raises questions of who owns the images, which is not always clear.

“They don’t want their data out there,” Frank said. “That’s why all the privacy things came up because farmers are afraid.”

‘A Hard Sell’

Farmers weren’t easily won over by ag tech. Monsanto’s products used farmers’ data.

“It was a hard sell,” Frank said. “It really was — because there were a lot of farmers that didn’t want their data being used.”

“New issues surrounding aerial images, the entities that are collecting them and how those data are used are just emerging.”

Jim Kukowski, American Soybean Association.

To put concerned parties at ease, the American Farm Bureau Federation (AFBF), along with some of agriculture’s leading stakeholders — John Deere, Syngenta and the National Corn Growers Association — crafted the Privacy and Security Principles for Farm Data in 2014.

The guidelines seek to address the opaque elements of privacy and security in agriculture.

The principles led to the formation of the Ag Data Transparency Evaluator, which audits agriculture data contracts to align with the Privacy and Security Principles of Farm Data, said Jim Kukowski, a member of the American Soybean Association (ASA) board and a soybean grower in Strathcona, Minn.

“ASA is trying to guide farmers to do business with companies that value and follow best practices around farm-data privacy — and more than 25 companies are now recognized as ag-data transparent,” he told Digital Privacy News.

Issue of Air Rights

But beyond the land is the sky. Aerial-imagery technology can be the farmer’s friend, or foe, depending on how it’s perceived, experts told Digital Privacy News.

“It’s kind of an issue with some farmers but some farmers not,” said Frank, the Iowa soybean farmer. “As long as you get permission, or if they can use the imagery, it’s a go.”

“In copyright law, it’s the person that controls the shutter that owns the photograph.”

Matt Poulsen, Suiter Swantz IP, Omaha, Neb.

Some confusion, however, surrounds who owns any images taken from above.

No specific rules govern aerial imagery in agriculture, but it is subject to general copyright law, said Matt Poulsen, a patent attorney and co-owner of Suiter Swantz IP, an intellectual property firm in Omaha, Neb.

U.S. copyright law states that whoever takes the photo is the author of the image.

“In copyright law, it’s the person that controls the shutter that owns the photograph,” he said.

Exceptions Abound

But there are exceptions. If a farmer hires an aerial-imagery company to take photos, the company, not its employee operating the camera, is the author of the images — based on a work-for-hire rule in copyright law.

If the company subcontracts a freelance photographer to shoot the pictures, then the freelancer is the author, Poulsen said.

“Whoever contracts to have that imagery or have that data collected would want to make sure all of that is spelled out in the contract.”

Lydia Hilton, Berman, Fink, Van Horn, Atlanta.

But work agreements bound by written contracts with clauses specifying authorship of the images override copyright law. 

“By default, it’s going to be owned by the contractor unless they contract around that — in which case, the farmer could own it,” Poulsen said. “But it needs to be an explicit statement that the farmer owns it.”

Image authorship or ownership also varies from agreement to agreement, said Lydia Hilton, a drone attorney at the Berman, Fink, Van Horn law firm in Atlanta.

Details regarding ownership of images needs to be fleshed out in contracts or handbooks, she said. And, then, there is the question of ownership involving “autonomous image collation,” Hilton noted.

“Whoever contracts to have that imagery or have that data collected would want to make sure all of that is spelled out in the contract,” she told Digital Privacy News.

Ultimately, it comes down to the fine print and the specifics of the contract, said Frank, the Iowa farmer.

Crop Data More Valuable

Though farmers are anxious about privacy, they’re mostly concerned with neighboring farmers or landowners ascertaining property values through crop-yield data.

That could lead to a farm being rented by, or to, someone else.

“The aerial imagery is a lot less personal than like your yield data,” Frank said. “It isn’t anything that’s going to change anything or make it easier for me to get something that I couldn’t get otherwise.”

And using aerial data brings many other questions; copyrights and contracts are parts of a bigger picture. 

“That’s why farmers need a good contract.”

Roger Royse, Haynes and Boone, Palo Alto, Calif.

“New issues surrounding aerial images, the entities that are collecting them and how those data are used are just emerging,” ASA’s Kukowski said.

“Will aerial imaging be a great new tool for farmers or a security headache? That remains to be seen.”

As the use of images to enhance a farmer’s operation swells, the ownership question is yet straightforward and indeterminate. 

“That’s why farmers need a good contract that defines who owns their information and what they can do with it,” said Roger Royse, a partner in the California law firm of Haynes and Boone.

The firm specializes in legal solutions for companies, including ag tech businesses.

“The law has been slow to catch up with this issue as it relates to agriculture, especially as imaging technology gets better and better.”

Christopher Adams is a Texas writer.

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