Leanne Wiseman
| Organization | Griffith University, Australia |
|---|---|
| Organization type | University |
| Organization role |
Associate Professor of Law
|
| Country | Australia |
| Area of Expertise |
legal issues arising from digital agriculture
legal governance and policy implications of digital agricultural technologies |
This member participated in the following Forums
Forum E-consultation on ethical, legal and policy aspects of data sharing affecting farmers
Day 3: Long-term ethical, legal and policy changes needed to move from the current scenario to the desired scenarios
"Trust" is at the heart of the digital innovations occuring around the world in many differnent sectors. Trust Centres are an ideal - these may be based around farmer co-operatives, data co-operatives or such data platforms. At the heart of any of the data platform solutions must be careful consideration of the terms of use of the platforms themselves - the "ownership" that is often claimed or asserted over the aggregation of the data deposited is something to which good governance and policy needs to be directed - as how the rights are mediated between Governments, third party and private sectors is ripe for closer examination with the overarching principle of clarifying what rights are really needed in the aggregation - it is positive to see such initiatives being developed
I agree that GDPR offers some useful pointers but how do we ensure the broad notion of consent extends to agricultural and farm data in areas where the GDPR will not have impact? While HLT/blockchain may offer solutions in some contexts will this technology provide assistance in farming communities who are not currently benefiting from the digital revolution ? developing legal ethical and policy frameworks that places more onerous obligations on service providers of transparency, security and privacy to ensure that the data shared benefits those communities who contribute the data would make positive steps in redressing the inequities
Thank you for highlighting the common scenarios. Yes I agree wholeheartedly that keeping the farmer and their communities at the centre of the smart farming revolution is the key to successful long term legal, ethical and policy solutions. While common data platforms, data shared in the cloud may provide solutions, care must be taken to ensure the privacy and security of this data - the 'clouds'' must offer its services of storgae on terms that are fair, equitable and transparent to those who contibute the data and who wish to benefit from the stored and shared data. Traditional knowledge and farmer's rights do need to be respected and recognised so that successes can be shared by all and not only those who collect the data.
Hello Everyone
Welcome to Day 3 of this E-Consultation on the ethical, legal and policy aspects of data sharing affecting farmers. I am about 10 hours ahead of many of you so I thought I would being our discussion a little earlier with a few thoughts.
My name is Leanne Wiseman I am also excited to accept the challenge of moderating Day 3 of our discussion. This discussion will begin on Wednesday the 6th June.
Today we would like to focus on the Long-term ethical, legal and policy changes needed to move from the current scenario to the desired scenarios.
We have been provided with some guidance of some points for our discussion so I look forward to hearing your thoughts and suggestions as to how we address some long terms goals.
- Ethical: what are the ethical questions we should make to contribute to increase food and nutrition security and better livelihoods of the poorest and most vulnerable farmers around the world by harnessing their access to and use of agricultural data? How should our mindset change in the long term about data rights? Should data rights be recognized as human rights? Should we still consider receiving a service in exchange for surrendering data an ethically acceptable business model?
The issue of whether data rights should be recognized as human rights is an interesting notion. Certainly the introduction and impact of the GDPR in the EU and also the soon to be introduced Consumer Data Right (CDR) (see http://dataavailability.pmc.gov.au/consumer-data-right) that will be introduced into Australia, sector by sector, in the near future reinforces the notion that individuals should have the right to data that is generated about them or by them.
There is a useful discussion here of data as a human right http://www.ohchr.org/Documents/Issues/HRIndicators/GuidanceNoteonApproachtoData.pdf
- Legal: what do you think are the best legal approaches to achieve the desired scenarios? How to recognize and implement farmers’ intellectual property rights over their data and traditional knowledge? How should the licensing scenario change?
When thinking about the best legal approaches to solve problems, the law can be a very blunt and inflexible tool when trying to encourage behaviour change. It is often 'soft' law or policy driven changes that are more influential in influencing and shaping behaviour. How can the current data licensing practices be changed to ensure a more equitable outcome for famers? How best can traditional knowledge, particularly in relation to farmining practices be safeguarded from exploitation? Empowering our farmers and their communities with the tools to realise the value of their information is one positive step. How can this be done? Should not the onus of changing the current licensing practices come from regulators who can shape the conduct of multi-nationals by requiring more transparency and openess about their data management practices?
While we have seen the adoption of data principles and codes of conduct around data management, which have resulted in the raising of awareness of the issues of data sharing and the potential for misuse, there has been little uptake by multinationals. How does 'best practice' of data management and use be embedded into businesses' social conscience?
- Policy: what strategies and priority areas of intervention would you recommend at the policy level? Do you think there should be more governance and by whom? Do you think international agreements could help?
We have seen the positive impact of international agreements such as the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD) so there is clear evidence that international treaties can make a positive change to behaviour.
An interesting question is whether agricultural data/ farm data is sufficiently meritorious of a new independant treaty or whether the international shift, such as the GDPR etc around the need for better data managemetn practices around consumer data are sufficient to provide coverage for the issues arising from the increasing collection, aggregation and dissemination of agricultural data? Some would argue that agronomic and agricultural data has a significantly different value proposition to that of consumer data ? others disagree ?
Looking forward to your contributions to what long-term ethical, legal and policy changes that need to happen
Day 1: Major challenges from a policy legal and ethical perspective, preventing smallholder farmers benefiting from data sharing
It is very true that farmers are not aware or do not understand the contracts/licences that enter into when adopting new smart farming technologies or machinery. An interesting development that occured in Australia in 2016 was the introduction of Unfair Terms legislation to protect smaller businesses again the terms and conditions imposed by larger companies by their use of standard form contracts that contain terms that are presented on a 'take it or leave it' basis eg with smart farming technologies - farmers enter into these contracts when software is downloaded or farm machinery is turned on. Many of the broad terms of use that involve wide dissemination and sharing of data without full and infomred consent would be considered 'unfair'. For some further detail see: https://theconversation.com/changes-to-contract-laws-could-give-small-farming-businesses-more-control-of-data-and-innovation-69275. The only concern I have is that it places the onus on the farmer to commence an action to have a contract declared unfair - perhaps a fairer way would be contracts containing such unfair and harsh terms - then those terms should be unenforcable. More attention should be paid to the unreasonable terms of use in these smart farming contracts -terms that allow the widespread sharing of data collected without informed consent of the farmer. There are very few examples of clear and transparent terms of use around data sharing in smart farming contracts. Just as the GDPR has introduced a broader notion of consent, there needs to be a broader dialogue with farming communities about their ability to have a say in the way that their farm data is used. Farmers at the very least should be entitled to portabillity rights in relation to their data ie to be able to have their data returned so that they can make use of it themselves in the future. A good example would be a local data co-operative where farmers are able to contribute their data to the local community for the benefit of that local community. While Government data should be made available to its citizens, individuals whether they be farmers/consumers of digital technologies should be made aware of how their data may be used and shared. The onus needs to be placed on the agribusinesses to reveal the way in which they plan to control store and manage data collected in simple easy to understand ways, rather than placing the onus on farmers to be expected to understand the intracies of data contracts.
I also agree - I think the CGIAR's approach is a useful one as it recognises that all data cannot (nor shouold not) be made open - ie open as possible and closed as necessary
The CGIAR Open Access and Data Managemetn Policy stems from – and complies with – the CGIAR Principles on the Management of Intellectual Assets (“CGIAR IA Principles”) which expands on Article 6.1 of the CGIAR IA Principles which provides that “The CGIAR and the Centers shall promptly and broadly disseminate their research results, subject to confidentiality as may be associated with [certain] permitted restrictions, or subject to limited delays to seek IP Rights [(patents, etc.)]”.
When thinking about data sharing, it is useful to think about what benefits farmers are getting for the sharing of their data. Given that there are so many different types of agricultural data that is generated off farms: ie machinery data, financial data, personal data, soil, yield, nutrient and chemical use data etc it is important to distinguish between which types of data farmers are willing to share. Often machinery data etc is willingly shared however personal, financial and production data may be considered more valuable to individiual farmers and what is the incentive being provided to them for sharing this information?
It may be useful to look to the notion of the access and benefit sharing arrangements that are required under the Convention on Biological Diversity (CBD) in Article 15. The main principles are countries have national sovereignty over their genetic resources, but that there should be facilitated access and benefit sharing under mutually agreed terms and with prior informed consent. The issue of prior informed consent and mutually agreed terms is something that would certainly assist to address the power imbalance between those data aggregators and those farmers who are being asked to share their data ? It is a fair question to ask what is being given in return to those farmers who share their data ?
Simone, you make some very good points in your contribution. I agree that speaking about 'data ownership' is rather unhelpful and discussions should really focus on the issues of who has control of farm data and who is sharing the farm data that is often being collected without prior informed consent. It is interesting to see the development of data co-operatives in agriculture where farmers are pooling together their agricultural and farm data so that they have some bargaining power with the agribusinesses who are currently collecting, aggregating and disseminating farm data without divulging any of the the terms of use of their 'smart farming' or precision agricultural technologies. Therefore I agree that the strong relationships that are built by farming communities are a vital first step in the discussion about who is getting the value from the farm data - certainly in many instances we are seeing that third parties are getting the value at the expence of the data contributors who are working on the land.
Privacy law in many countries is often thought to provide a potential remedy however the way in which Privacy laws operate in many countries is that is limited to personal data or personal/consumer information. As far as I am aware there is very little guidance given under privacy law regimes of whether agricultural data would be considered to be personal data. Much agronomic or agricultural data (including machinery data) collected from farms would not be considered to be personal data so would not be protected by privacy laws. While some information and data collected from farms potentially would fall within the notion of personal information/data.