Who Owns the Data?

February 2, 2015 by Nicholas R. Merker, Partner
Ice Miller can help innovators overcome critical challenges to grow successful agribusinesses. Learn more about the unique business and legal challenges facing food and agricultural innovators and how to protect and grow that innovation in our 2015 Agribusiness Guide. An excerpt follows: 
A critical issue for producers is the concept of data ownership, and this is clearly reflected in the Principles’ concept of Data Ownership. Nevertheless, even if an ATP agrees that producers own this information (and implements contracts that say the same), producers should be careful to understand the license rights granted to ATPs when handing over such information. Even though a producer might own information that they give to an ATP, the license granted to the ATP may look, act, and feel like ownership.
We have seen this issue in other industries. For example, in the social media context, Instagram dealt with user backlash in 2012 when the photo-sharing service updated its Terms of Use which required users to agree that a business could pay Instagram to display the user’s name, likeness, and photos in connection with paid or sponsored content or promotions, without any compensation to the user. Although Instagram backed off from this position a few days after announcing it, the license granted by users to Instagram upon uploading a photo today still very much feels like ownership even though Instagram disclaims any ownership rights:
Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy . . . .
This example from a photo-sharing service is directly on point to the implementation of the Principles’ concept of ownership because mere ownership may not tell the whole story. Producers may want to review license grants set forth in contracts and policies from ATPs before sharing information to make sure the license is limited solely to the use cases that the producer agrees upon. Similarly, ATPs should review their contracts and policies to make sure that the spirit of the Principles’ ownership concept is upheld and provides proper Notice and Choice to producers regarding license rights in shared information. Instagram arguably lost some consumer goodwill due to this backlash, and an ATP could quickly lose producer goodwill if caught in a similar issue.
Alternatively, ATPs who wish to obtain licenses that permit them to aggregate and use producer data should draft and implement policies that clearly define the scope of the desired usage and ensure producers understand and agree with the scope of usage. ATP policies and agreements should strive to ensure that the interests of both ATPs and producers are aligned and producers adequately understand and are in agreement with the licensed use of the producers data. Proper alignment of the interests of both ATPs and producers should result in tangible benefits to both parties and mitigate the risk of misunderstandings and disagreements over future data usage.

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