By Ashley Ellixson
Here we are yet again discussing farm data, one of the major hot topics in ag law and technology right now. Why? We are turning to “big data” and ownership again because, well, there are still many unanswered questions. You may recall my post from a while ago on “big data” and its definition. Today I am going to focus on non-disclosure agreements and how this contract can be used to help protect your farm data.
Farm data can be one of three kinds:
Agronomic Data: Information derived from activities and conditions on farm fields. Examples include soil analysis, nutrient information, hybrid selection, plant populations, and yield data.
Machine Data: Information associated with how equipment is functioning. Examples include fuel consumption, machine health indicators, diagnostic codes, and engine performance.
Weather Data: Information about precipitation, wind, temperature, and other climate conditions.
When the legal question of data protection comes up, lawyers immediately look to how the item at issue is classified. Presently, farm data has not been legally classified. There is a strong argument, however, that it may fall under intellectual property and more specifically, trade secret. To read further on this topic, see my blog post on trade secrets.
Besides considering a traditional contract with your agriculture technology provider, farmer coop, or the like, another document to consider when thinking of data protections are nondisclosure agreements (NDA). A NDA is a legally enforceable contract which creates a confidential relationship between a person holding some kind of trade secret (arguably, the farmer) and a person to whom the trade secret will be disclosed (ATP, coop, etc.). It is extremely important to have the employee sign an NDA BEFORE any information is disclosed. NDAs contain a few key elements including:
Defining who is disclosing and receiving
Defining the trade secrets in detail
Omitting what is NOT protected as a trade secret (EX: publicly available information)
Establishing duty to keep information secret
Specifying both allowed and prohibited uses
Setting a period of enforceability, usually defined by event rather than time
Some additional items to consider including in a NDA are:
Data destruction requirements
Injunctive relief
Indemnity clause
Integration clause
Attorney fees
Alternative Dispute Resolution (ADR) be required before using a court
These considerations are not an exhaustive list in contracting farm data protections. It may be worth time and money to have a qualified attorney look over the details of the contract. Until the legal framework catches up to agricultural technology, contracting to have your farm data protected is one of the best management practices. NDAs only work to cover trade secrets, however, so this idea of contracting may not be foolproof since neither legislatures nor courts have defined whether farm data is classified as trade secret.