Does a marketer own data related to performance of its own marketing campaigns? It might surprise marketers to know that data ownership isn’t automatically so. Or more broadly, who does own that data? A data rights clause in contracts with DSPs or agencies might state something like this:
“Client owns and retains all right, title and interest (including without limitation all intellectual property rights) in and to Client Data”,
… where “Client Data” is defined as “Client’s data files”. Or this:
“As between the Parties, Advertiser retains and shall have sole and exclusive ownership and Intellectual Property Rights in the … Performance Data”,
… where “Performance Data” means “campaign data related to the delivery and tracking of Advertiser’s digital advertising”.
Both clauses are vague, although the second is broader and more favorable to the marketer. In neither case are “data files” or “campaign data” defined with any particularity, and neither case includes any delivery obligation much less specifications for formatting, reporting or performance analytics. And even if data were provided by a vendor or agency, these other questions remain: What kind of data would be provided, how would it be provided, and how useful would the data be if it were provided?
2 threshold issues:
First, when marketers refer to “their own data”, there’s probably no argument that “client data files” (see above) or “advertiser content” belong to the marketer. After all, this is data or content supplied by the marketer, and even creative or design material or code supplied by the vendor is clearly client material even without explicit “work for hire” language in the contract.
The trickier area is campaign data. “[O]ften the most vital information is locked away in databases run by agencies, DSPs, SaaS providers and other external parties,” writes Ericka Chickowski in AdExchanger. Chickowski quotes Jay Stocki, VP online marketing for Experian Marketing Services, who says “many agencies view a marketer’s [campaign performance] data as intellectual property on par with creative work.” By analogy to consumer marketing, Oreo cookie fans contribute reams of performance data by their spending habits, but Nabisco certainly prizes and protects that same market intelligence for its brand. An agency may not be interested in performance data for Oreo sales, but certainly creates and values proprietary market intelligence from the related performance metrics for different marketing channels.
Data disputes are driven by more than just worries about losing control over the relationship. Agencies and DSPs really are building proprietary content, research and intelligence on market performance and really are using data to build competitive edge. As Alexandra Bruell writes in Advertising Age, “The ownership line blurs when an agency uses its clients’ data to create its own intelligence … which is why some large marketers are building their own in-house digital-trading and data platforms.” Clearly there’s value in market intelligence.
A second threshold issue is format or utility. It might be that the contract is good at clearly allocating data rights, so the DSP turns over data to a marketer, but what’s a data dump worth? Not much if you can’t do anything with it.
“As consumer packaged goods and retail organizations look to make real-time, personalized consumer decisions, they need the data from the agencies to drive decisions across the organizations,” writes Chickowski of AdExchanger, quoting Justin Honaman, of Teradata and formerly of Coca-Cola. It is one thing for a marketer to truly build a viable in-house data platform. It’s another thing to be overwhelmed by data, which makes the agency or third-party data management relationship that much more critical. So … the agencies might argue that they “own” the performance data, but what they’re really saying is that marketers need their help in making the data useful.
Do marketers want to be in the business of analyzing data? Probably not, especially with the availability of so much external vendor expertise and sophisticated third-party tools. But they also don’t want to be in a position where they’re so dependent on an agency or other vendor that they can’t switch if they want to (or need to).
To this point, Bruell of Advertising Age interviewed several prominent marketing executives who emphasized the issue of access over ownership when it came to data. And the savvy DSPs are responding, including Turn which reportedly allows agency clients to maintain the direct vendor relationship but still share access to automated data reports with clients.
Which leads back to the original question: Does a marketer own data related to performance of its own campaigns? The answer depends on whether it really needs to.
