I've drafted and reviewed dozens of farmland leases over the years, but I've yet to see a lease that addresses the issues associated with ownership and transfer of farm data. As farmers embrace new data storage and analytic tools, it’s time to modernize the traditional farm lease to address farm data. This post begins a series of articles on how to address farm data ownership, privacy, and sharing, in a farm lease.
A landlord and tenant have three basic ways they can address the ownership of data generated on farmland: (a) the person farming the land--the tenant--can own all data generated on the land; (b) the landlord can own all data generated on the land; or (c) the landlord and tenant can share, or co-own any farm data generated. Let’s start with the first of these options since I presume it will be most common.
When a tenant owns farm data generated on the field, at least three provisions need to be added to a lease: (1) a definition of “Farm Data”; (2) a provision establishing who owns “Farm Data”; and (3) a provision establishing what happens to “Farm Data” at the end of the lease. Here is a suggestion of how this might look:
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”).
Landlord assigns all rights and interest to Farm Data to tenant and relinquishes landlord’s rights in the same. Tenant is the exclusive owner of all Farm Data generated on the leased farmland during the lease term. Tenant shall have all rights associated with Farm Data ownership, including deletion, transfer, sale, and disclosure rights.
At the conclusion of the lease, tenant shall assign and transfer all Farm Data from the prior crop year to landlord, or at landlord’s election, the subsequent tenant.
I envision that the landlord will want to make sure he or she obtains the Farm Data at the end of the lease for the prior crop year, since that will be valuable to the next tenant. I suggested that the tenant provide the prior year's Farm Data to landlord, but there are many different ways this could be addressed.
These provisions are merely a suggestion to get farmers thinking about this issue. These provisions may not work for your situation. You should contact your attorney to make sure your lease has the exact provisions you need.