Where Copyright Meets Privacy in the Big Data Era: Access to and Control Over User Data in Agriculture and the Role of Copyright
The application of big data in different sectors of the economy and its transformative value has recently attracted considerable attention. However, this transformation, driven by the application of advanced technologies that utilize big data—such as the Internet of Things (IoT), artificial intelligence (AI), and software systems—raises concerns about access to and control over the user data that results from the uptake in using digital technologies. This Article examines the role different legal regimes have in framing access to and control over various forms of user data from the perspective of technology users in the agriculture sector. This Article then goes on to inquire whether copyright law in unpublished works can serve as a model for a new form of data regulation that shifts ownership claims towards ensuring access and controlling disclosure.
The current regime regulating access to and controlling user data is the Fair Information Practices model, implemented primarily through private ordering in contractual arrangement—specifically agreements establishing the relationship between users and technology providers, data intermediaries, and data platforms. This Article seeks to provide a framework that recognizes and protects data originators’ privacy and economic interests in user data by proposing a trust model of data sharing. It does so by studying the normative roots underpinning copyright protection of unpublished works under the doctrine of joint authorship in copyright law. Based on these normative roots, this Article argues that a sui generis legislative framework can be enacted at the federal level, both in Canada and the United States, in order to cater to the interests of technology users regarding data they originate, particularly in terms of activity data, such as farm-operation data and technical data in the form of agronomy data. The Article identifies rights to control disclosure and access data as two minimum rights, which new legislation ought to recognize as flowing from users’ authorship of data and their categorization as users of works under copyright.