Earlier this year the ACCC released a discussion paper titled “Agricultural machinery: after-sales markets”. It looks at concerns about potential harm to competition in the agricultural equipment after-market, such as barriers to having equipment repaired by independent repairers, and uncertainties controlling and accessing data collected by complex machinery perhaps creating an interoperability barrier with other machinery or brands.
For example, access to diagnostic software tools, technical information and service manuals might be one barrier to independent repairs. Access to data about the machine’s operation and performance (telematics), or about the machine’s productive use (eg. crop yield data) may raise issues around interoperability and “ownership”. Whose data is this?
Although the ACCC’s report is expressed in terms of competition rather than intellectual property, there are genuine copyright (eg. operating firmware) and associated confidentiality issues (perhaps claimed as manufacturer “proprietary” data) that can create tensions between manufacturers and operators of sophisticated data-recording agricultural equipment.
The deadline for submissions was the end of May, and the timetable for next steps is presently not clear. Next steps might depend on the content of submissions received, but might include the ACCC making recommendations to overcome any identified barriers to competition. It will be interesting to see where this may go.
More broadly, there is an interesting trend here. The ACCC is increasingly involving itself with issues around ownership and control of, and access to, data. Other examples include:
- the new consumer data right (giving consumers access to data held about them, initially by banks, but to be extended to energy and then other sectors across the economy); and
- the in-progress digital platforms mandatory code of conduct, which is to address concerns about the valuation and assessment of online news content, information and data by Google, Facebook and others.
- The ACCC is increasingly interested in issues surrounding the control of, and access to, consumers’ and business’ data, in this case, collected by agricultural equipment.
- With the increasing recognition of data control and access as a competition or consumer law issue, it decreases the role of intellectual property law, which perhaps was not the right vehicle (pardon the pun) for “ownership” of data in any case.