PhD Defense C. Atik LLM

The proliferation of IoT implementations and the utilization of advanced data analytics technologies has transformed many industries including the most traditional ones. Agriculture is one of them. Despite the many benefits and significant potential, this digital transformation is accompanied by a set of challenges related to agricultural data access and control. PhD candidate Can Atik investigated possible ways to mitigate the complexities of the ‘ag-data access puzzle’.

Digital transformation in agriculture has initiated a paradigm shift from traditional agricultural decision-making to data-driven ‘smart farming’. Farmers can now detect issues early, track developments, and take swift action based on the generated insights through collecting and processing data from their farms. Data-driven ‘smart farming’ promises higher productivity, reduced input usage, and minimal environmental impact.

However, this digital transformation is accompanied by a set of challenges related to data access and control, which hinder competition, innovation, and trust among stakeholders. Effectively addressing the complexities surrounding access to agricultural data is crucial. In this context, the overall research question of this dissertation is the following:

1. What are the prominent problems deriving from the ambiguities about ag-data access and control from the perspective of facilitating the development of a competitive Digital Agriculture sector, and
2. To what extent are the EU regulatory initiatives and/or traditional EU competition law enforcement able to address these challenges?

Accordingly, this dissertation offers a comprehensive legal analysis of the effectiveness of voluntary rule-making initiatives, EU regulatory initiatives, and EU competition law enforcement in addressing these challenges. As a result, Can Atik reached the following conclusions and regulatory suggestions:

1. The lack of legal clarity on ag-data access conditions and technical issues results in the following problems: lock-in of farmers in first-mover technology providers, fragmented ag-data sets, unanswered data access needs in the farm-to-fork chain, and trust-related problems hindering farmers’ adoption of digital technologies and data sharing;
2. Existing regulatory frameworks and voluntary rule-making initiatives in the EU is not adequate to remove the underlying reasons for the sectoral problems in the Digital Agriculture sector despite the significant advancement after the recent Data Act proposal;
3. Although sectoral literature advocates ‘data ownership’ rights for farmers, the possible future sector-specific regulatory design (after the horizontal framework of the Data Act) needs to be more sophisticated to effectively address the underlying reasons for the sectoral issues with tailored data access rights and data re-use modalities;
4. A well-designed set of rules, rights and obligations is a necessary step, but it is not sufficient alone to remove all the problems in the sector. Sectoral regulation should be complemented by a technical data access hub together with obligations towards data standards and interoperability;
5. Designing a tech-neutral and future-proof mechanism is still a significant challenge. Recurring problems are best addressed by a holistic sector-specific regulatory intervention, while new and unexplored issues still require the case-by-case enforcement of EU competition law.

Identifying the Ag-data Access Problems

Lack of clarity regarding who has what rights over which ag-data sets generated interconnected problems in the emerging markets in the Digital Agriculture sector. First of all, farmers struggle to access and transfer their farm data sets, which are technically controlled by technology providers. This locks farmers in these first-mover data controllers, and erodes their sense of trust in the digital transformation and sharing of data. Also, there is no clear way for various data access seekers in the farm-to-fork chain. For instance, a start-up needs to access ag-data sets to train algorithms and generate a competitive service, but data is stored in isolated databases of different first-mover technology providers. This isolation, therefore, also limits the potential of entire Big Data sets in the sector for further innovation. Effectively addressing the complexities surrounding access to agricultural data is crucial to the development of the emerging Digital Agriculture sector and the welfare of the entire society that will benefit from the digital transformation of agriculture.

Adequacy of the Existing Legal Framework

The vast majority of ag-data is unlikely to be considered personal, and the applicability of the personal data protection regime (GDPR) is either not possible or not adequate to solve business-to-business data access challenges in the sector. Other recent regulations are mostly focussed on personal data and regulation of online platforms, and they are not applicable to IoT-generated non-personal ag-data setting. Sectoral stakeholders were aware of this, and generated voluntary rules and principles (EU Code of Conduct), but this initiative has inherent limitations due to challenges connected to incentives, participation and enforcement. The recent Data Act proposal is an important advancement, but it is a general framework for all the IoT-driven sectors and naturally not able to eradicate all the sectoral problems. Therefore, there is a need for sector-specific binding regulatory intervention with tailored specifications to the remaining needs of the sector.

Need for a Sectoral Legal Design

Although sectoral literature, stakeholders and farmers' associations advocate a ‘data ownership’ right for farmers, exclusive and transferable ownership right design is likely to generate more harm than benefits, and this design might exacerbate the sectoral problems. Data rights can be accumulated by a few vertically integrated conglomerates that can keep the data for themselves, and thus, farmers may become more dependent and broader data access would become less likely. Instead, inalienable data access rights should be designed to be linked with ‘farm units’ rather than individual farmers or companies to ensure continuous access to ag-data sets by actual operators of the related farms while not precluding broader data re-use possibilities. This may help to unlock farmers. In addition, it is recommended to establish a technical data access hub and a sectoral authority to overcome the problems deriving from interoperability problems and broader data access needs in the farm-to-fork chain. The establishment of such a mechanism to run the operation of the data access hub and decide on data re-use requests based on certain modalities, is needed for further innovation and development of the sector without harming the incentives of farmers and existing companies in the sector.

Role of EU Competition Law Enforcement

Even though the aforementioned suggestion to create sectoral rules, generate a technical data access hub, and impose data interoperability standards provide a comprehensive solution, it is still difficult to design a tech-neutral and future-proof legal framework in dynamic data-driven sectors like Digital Agriculture. Therefore, the thesis also highlighted that traditional competition law enforcement can play a complementary role in addressing dynamic challenges if it is updated in the age of ‘Big Data’ to more accurately assess the competition concerns and to provide more effective remedies in the digital age.