Summary
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1. Use of data accessed through the NBN Atlas
The NBN Atlas is an internet based data delivery service. The site is available for use by anyone to make biodiversity data that they hold available for others to view and use in line with the NBN Atlas Terms of Use.
Content that you access through the NBN Atlas website may also be subject to specific terms and conditions imposed by a Data Partner (Data Partner Terms). These Data Partner Terms may include certain licences to use the Content, such as Creative Commons licences.
The Data Partner Terms and the Terms of Use form the legally binding agreement between you, the NBN Atlas and/or the Data Partner.
2. Breach of licence conditions
If a data user is found to have breached the Data Partner Terms, NBN Atlas Terms of Use or the licence conditions associated with data accessed through the NBN Atlas, the NBN Trust may issue a Fixed Charge Notice (FCN). The Notice will clearly state the reason as to why the notice was issued. In most cases the FCN will be emailed to the data user.
No actions or decisions by the NBN Trust, are intended to prejudice any potential action by the Data Partner.
2.1 Data Partners
When a Data Partner highlights a suspected breach of licence conditions and requests follow up by the NBN Trust, they must:
- be an NBN member
- provide evidence in support of the suspicion that the licence conditions have been breached
- have already made reasonable attempts to resolve the issue with the data user
The NBN Trust reserves the right to
- decline the request to intervene if the criteria above have not been met
- decline to escalate the claim to the county court, e.g. if it is believed that the benefits of pursuing the claim are likely to be outweighed by the costs incurred, or, if pursuing the claim is deemed contrary to the values of the NBN Trust
- review and/or amend this policy at any time
3. Summary of Procedure following a suspected breach of the CC-BY-NC licence conditions
The CC-BY-NC licence does not allow commercial use of that data, guidance on commercial and non- commercial use is available on the NBN Atlas. Downloading or viewing data available on the NBN Atlas under a CC-BY-NC licence for the purposes of producing a report or advice for which the data user is receiving any sort of payment (including cost recovery) is considered to be a breach of the licence.
If a data user is believed to have breached the terms of a CC-BY-NC licence, the procedure set out below will be followed. However, this policy is not exclusive and the NBN Trust reserves the right to pursue alternative options.
- The data partner should contact the NBN Trust with details of:
a. the name and contact details of the data user they believe has breached the licence conditions
b. evidence of use e.g. a specific report
c. the reason they consider the use to be commercial
d. details and copies of material correspondence between the data provider and the data user concerning the alleged breach
- If the use appears commercial, the NBN Trust will contact the data user in writing to enquire about the use of the data and remind the data user of the possible fixed charge notice if a satisfactory explanation is not received. In response the data user has the option to explain why they did not deem the use commercial.
- If there is no response after 21 days, the NBN Trust may issue a fixed charge notice (see section 4)
- The data user must pay the FCN or formally appeal within 21 days (see section 5)
- if the data user neither pays nor formally appeals within 21 days, the NBN Trust may consider making a claim through the county court claims system
a. All claims will be dealt with under the jurisdiction of the courts of England and Wales as per our terms of use
4. What are your options if you receive a Fixed Charge Notice?
If you receive a FCN, you should either pay or appeal the Notice. The full amount of the Notice or appeal must be received within 21 days from the date of issue.
If you wish to dispute the liability of a FCN then you may appeal in writing to us (the Creditor) named in the FCN. Appeals must be received within 21 days of the date of this notice. You must provide your full name and address, and the FCN number at the top of your Notice along with your full reasons (with supporting evidence, if any) for contesting liability, otherwise your appeal will not be processed.
If you do appeal and do not hear from the NBN Trust within 28 days then please make contact, do not assume that your appeal has been successful.
If you ignore the Notice or fail to pay when requested, the NBN Trust may take further action to recover the sum you owe. This can result in additional charges being applied to the Fixed Charge Notice and may result in a County Court Judgment.
5. Appeals Process
The data user has the right to appeal the fixed charge notice. Appeals must be received within 21 days of the notice being issued. The NBN Trust will then convene an appeals panel to discuss the details of the case and reach a decision on whether the data use breached the conditions of the licence. The panel will reach its decision solely on the basis of the submissions and evidence provided to it by or on behalf of the data user, the data provider and the NBN Trust. If the panel cannot return a unanimous decision, a majority decision will be accepted.
- Appeals must be made in writing and emailed to support@nbn.org.uk including the Fixed Charge Notice reference in the subject line or sent to the NBN Trust at 14 – 18 St. Mary’s Gate, Nottingham, NG1 1PF
- The appeal must include evidence to corroborate the assertion that the use was not commercial
- The NBN Trust will acknowledge receipt of the appeal within 2 working days
- The NBN Trust will convene an appeals panel within 15 working days of receipt of the written appeal
- The outcome of the appeals panel will be communicated to the data partner and data user within 3 working days
- If a fixed charge is issued, this will be split between Data Partner and NBN Trust 60% / 40% in favour of the Data Partner.
5.1 The Appeals Panel
The NBN Secretariat will establish a list of individuals and organisations willing to sit on an appeals panel. The panel will be comprised of five, impartial, individuals from within the NBN membership. When convening an appeals panel, the proposed panel members will be asked to declare any past or current associations with the data user or data provider in question and, if the NBN Secretariat considers there to be any risk of conflict of interests, it will re-convene the panel with one or more alternative members. The composition of the panel may vary between appeals, however, the members of the panel will always include a mixture of data users and data providers to provide a balanced view.