Capitalismo dei monopoli intellettuali, pseudo-proprietà intellettuale e dati nel settore dell’agricoltura di precisione e dello smart farming: note a margine del right to repair

The scope of this paper is to discuss from a legal perspective the problems arising from the concentration of data and information control and processing power in the hands of commercial monopolies and oligopolies that supply farmers with machines (e.g., tractors), seeds, chemicals (e.g., fertilizers and herbicides) as well as precision farming and smart farming services. Such monopolies and oligopolies derive, at least in part, their strength from intellectual property and pseudo-intellectual property. Pseudo-intellectual property consists of those anomalous forms of exclusivity that are based, for example, on contract and technological protection measures as well as the de facto power that comes from controlling the technological infrastructure on which data are stored, processed, and transmitted. In smart farming and precision agriculture, the power of input-supplying firms can lead to anticompetitive effects and abuses of economic dependence. More generally, the power of intellectual monopolies diminishes the degree of autonomy and freedom of farmers: not only of the individual farmer vis-à-vis the input-supplying firm, but also of the category of farmers vis-à-vis the category of input suppliers within the value chain. Among the legal instruments that have been imagined counteracting such power, the so-called “right to repair”, the right of the user of a device to be able to repair it without being subject to the restrictions imposed by the device manufacturer, deserves attention. Such a right, to be effective, must restrict intellectual property and pseudointellectual property.