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

Recently I was asked this question: When a farm cooperative (a “co-op”) does work for a farmer and in the process generates agronomic data, does the co-op own that data or does the farmer? Many in the ag industry like to say “the farmer owns the data,” but the co-op’s generation of farm data presents a more complicated problem. Of course, if the co-op has a written contract that addresses ownership, this is a non-issue. (See my previous post for more on this: Co-Ops and Custom Applicators: Are You Addressing Farm Data?).  But who owns the data if there is no written contract?

When there is no written contract between the farmer and the co-op, data ownership is ambiguous. The farmer could say that he or she owns the data, since the data was generated on their land. The co-op could also claim ownership, since such information could be proprietary to the co-op. For example, imagine a farmer asks the co-op to spray a particular weed on his field, but he leaves herbicide selection and formulation to the co-op to determine.    

American Farm Bureau Federation’s recently released Principles for Privacy and Security of Farm Data does not answer this question. It suggests that when there are multiple parties claiming an ownership in farm data, these parties should agree among themselves as to who is the data owner.  

If farm data is a trade secret from a legal standpoint, then the Uniform Trade Secrets Act (“USTA”) (adopted in most states) may shed some light on the issue. It defines a trade secret as: 

information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Applying this definition to farm data generated by a co-op, the USTA suggests that the person who creates the “pattern,” “method” or “technique” — the co-op — would be the owner of the trade secret.

But that does not fully answer the question, because the law also recognizes that some intellectual property is done as a “work for hire.” This means the person creating the trade secret (or patent, copyright, or trademark) is working for an employer. That employer is the owner of the “work” in those situations. Perhaps a court would view a co-op’s farm data as a “work for hire” belonging to the farmer.  I’m not aware of any case addressing this point.

 All these unknowns boil down to this: farmers and co-ops need to establish who owns farm data in their agreements.