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In my last two posts, I discussed what provisions one might add to a farm lease when either the landlord or the tenant wants ownership of farm data generated during the lease. Another scenario arises when the landlord and tenant both want equal access to the farm data. In this situation, the lease should establish co-ownership rights. As a side note, I should mention that data analytic tools on the market at this time, like FARMserver, make this sharing of data between landlords and tenants extremely easy.There is no binding case law precedent, but my prediction is that eventually the law will establish that the “farmer” owns farm data. That means the tenant is the “farmer” and thus de facto owner of the farm data their equipment generates on the leased land. (This is the outcome American Farm Bureau’s Principles for Farm Data Privacy and Security suggests). In that instance, the lease should clarify that the tenant is the owner of farm data, but the tenant assigns all rights to use that data to the landlord as well. Here are my suggestions for language to include in the lease, again, starting with a definition of what "farm data" is:
1. Landlord and tenant recognize that tenant’s farming of the leased farmland during the term of the lease will generate agronomic data, including information related to soil, water, seed variety, crop health, crop maturity, disease, nutrients, fertilizer, herbicides, pesticides, yield etc., in various digital forms, including files, imagery, records, video, photos, etc. (“Farm Data”). Tenant is presumed to be the originator and initial owner of the Farm Data.2. Tenant assigns a non-exclusive right to landlord to utilize Farm Data for any purpose landlord chooses consistent with this lease. Tenant retains all rights to utilize Farm Data generated during the lease term. Both parties shall have all rights associated with Farm Data ownership, including the right to transfer, sell, and disclose to third parties. Landlord and tenant recognize that neither party shall have the exclusive right delete Farm Data, however, each party may delete Farm Data in their own possession or control without liability to the other.3. At the conclusion of the lease, landlord and tenants rights to utilize the Farm Data consistent with these terms shall continue.
One of the unique things about data is that it can be replicated endlessly and perfectly, unlike other forms of tangible property where there is only one item. This means that when a landlord and tenant each have the right to use farm data, they have little control over what the other party may do with that data. Therefore, I recommend in this scenario also adding a provision that spells out what rights each party has to transfer, sell, or copy the farm data generated during the lease. I did not provide such a suggestion here, since the possibilities are quite endless.
These provisions are provided to help farmers have a conversation with their landlords. Should you wish to include these provisions in your lease, I recommend you consult an attorney to tailor the language to fit your situation.
By Todd J. Janzen, Partner, Plews Shadley Racher & Braun LLP
Read more at Janzen Ag Law Blog by Todd Janzen, Partner, Plews Shadley Racher & Braun LLP.
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