How is citizen science incorporated into environmental impact assessments?

Yes, but certain uses are allowed even for fully copyrighted works. The CC license does not change that; releasing a work under a new license can only make use easier, it cannot impose additional restrictions on uses that are already legal. This interpretation of copyright law would also mean that you could not use a fact that was published in a scientific paper, in a book, or nearly anywhere else. It would mean that I couldn’t legally publish the sentences “Harry Potter is a book about wizards at a school called Hogwarts” or “on page 154 of Harry Potter book 1, Harry fights a troll”. It would make scientific publishing impossible, all papers cite facts that were originally published in other copyrighted works. It would mean not that only that you couldn’t share observations from iNaturalist, but also observations from anybody else that has not explicitly given you permission and/or released them into the public domain.

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I’m definitely not an expert in UK copyright law, but it seems to me the legal advice you’re getting is misleading. And to some extent the debate around CC-BY-NC licensing is a red herring.

Let’s imagine that you read a published paper that reports distribution information for, say, Isle of Man Cabbage, based entirely on the authors’ own observations, none of which are shared publicly except in their All Rights Reserved paper. Certainly, you cannot republish any portion of their text beyond a brief fair use quote, or the figures they include (e.g. distribution maps). But you absolutely are entitled to use their paper’s reporting that Coincya monensis ssp. monensis is present at Crosby Coastal Park but extirpated from Knotty Ash. And someone could write an environmental impact analysis report that references the published paper as part of its analysis of the a project’s potential impact.

If people could not legally use the information they learn from copyrighted works, why publish or read in the first place? The freedom to cite published references is a pretty core tenet of academic research.

Going back to the use of iNat observations, whatever license may be applied to them has the potential to limit your wholesale republication of that observation content. But using information you learn from a iNat observation that shows Isle of Man Cabbage growing on or near a specific development site should not be limited by any licensing considerations.

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Surely biological observations are ‘facts’, and not generally covered by copyright law.
e.g. . Are facts copyrighted? | New Media Rights
an
Works Not Covered By Copyright | Digital Media Law Project (dmlp.org)

Images are a different matter.

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My opinion as a non-lawyer:

In the case of an environmental impact assessment undertaken for commercial gain, it is the interpretation of the data that is receiving the fee, not the data itself.

There is no harm or loss to the IP owner. Harm in its most loosely defined form (distress over unauthorised use) is extremely unlikely.

The biological observation is a fact and not a copyrightable work, but the presentation of the facts in the form of an observation is copyrightable. So the occurrence of X. y species at x,y location on d,m,y date is freely useable, but a screenshot of the observation, for instance, is not.

An environmental impact assessment that lists taxa that were reported in iNat as present at a location, even if including numbers of each, is a new work not deemed to be a copy of anything, let alone an individual observation.

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Hi @deedb8. Thanks for that link to the NBN Atlas Guidance on the definition of non-commercial use. It’s clear that they take a very hard line on any commercial use of the data they aggregate.

Commercial Use

  • Any use which is primarily intended or directed towards commercial advantage or monetary compensation (this includes cost recovery) e.g.
    • Any part of the process directed at gaining planning consent, land or infrastructure development including background research and report writing
    • Use on a third-party data aggregation website or app, even if that website or app is not in itself commercial

That interpretation is certainly at odds with the consensus opinion regarding use of scientific data.

What’s less clear to me is whether the NBN’s more restrictive opinion is different because:

  1. UK copyright law has specific provisions that differ from many other countries. Certainly, there are rights in the UK, such as the database right, that are not applicable in other jurisdictions such as the United States. But it doesn’t seem that this is the root of the issue here, because the limited rationale the NBN provides focuses mostly on the CC-BY-NC license.

  2. The NBN’s lawyers don’t have a clear understanding of the distinction between copyrightable original content and non-copyrightable objective fact.

  3. The NBN’s lawyers don’t have a clear understanding between republishing copyright content (prohibited) and gaining knowledge from the information in it (allowed).

  4. The NBN’s lawyers are putting up stronger restrictions than they need to because they’re just overly risk averse.

  5. The NBN’s lawyers are putting up stronger restrictions than they need to because they’re trying to protect the paid revenue stream for providers who contribute data.

Regardless, I’m sorry that you’re in a situation where a national research body is trying to limit the use of objective data to inform certain types of decisions.

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Here are some ways that citizen science observations like those on iNat can factor into an EIA/EIR (based on experience from California, but possibly generalizable elsewhere).

The developer of a typical large development project will need to provide some type of assessment that shows what impacts might be caused by the proposed project and by various alternatives (one being the “no project” alternative). There are broadly similar requirements under the California Environmental Quality Act (CEQA) and the U.S. National Environmental Policy Act (NEPA). I’m guessing Canada has something similar.

Usually the developer will hire a lead consultant firm to prepare the report and they will hire specialists in various areas including “biological resources”. The biologist will research the site and possible species of concern, and try to determine whether they are (ever) present on the site, and in some cases whether the site represents potential habitat (e.g. for an endangered species that’s subject to a restoration program). There will then be field survey work (ideally at several times of year) to establish the presence of possible species at the site.

From what I have seen, there can be more focus on demonstrating the absence of improbable species with higher levels of protection (e.g. federally endangered fish, even at urban sites with no obvious surface water) than there is on determining the presence of moderately rare but less improbable ones (e.g. locally rare plants).

So how might iNat observations help? Maybe the consulting biologist will check iNat (or GBIF) when they do their research and see that a species of concern has been reported at the site, or in the immediate area. That should help ensure they then try to validate the species’ presence during the field survey. Of course that can be difficult with mobile and seasonal species.

But it’s not all dependent on the professionalism of the hired biologist. Even if the EIA/EIR ignores iNat data, it’s still possible for a local or national nature protection org (or the state’s own environmental protection employees) to use that same iNat data to provide input during the decision process. This could be as simple as submitting a comment that says “The EIR says there’s no evidence of Ivory-billed woodpeckers at the site and that none were found during the field survey, but the data from iNaturalist shows the species has been recorded from the site three times in the past five years. The EIR should be revised to address the likely impact on the only remaining population of this species.”

The CEQA process requires the revised EIR to then address any substantial criticisms. And even if the developer’s consultant chooses to cast doubt on the iNat data, decision makers can decide whether they’re willing to certify the EIR over objections to its adequacy. In important cases, these decisions may be appealed in the courts, but the foundation of any case is the EIR and any comments by the public and government bodies.

iNat data can also feed into this type of process more indirectly, by informing the designation of protected species in the first place. Before the boom in citizen science, information about the distribution of less common organisms could be quite sparse (even if it was potentially of higher quality because it might be gathered by trained professionals, backed by herbarium/museum specimens, etc.) Now that there are more observations from sources such as iNat, biologists working on protection assessments for specific taxa can get a better picture of current distribution.

It could be that an iNat user documents an undiscovered or lost population of an unusual species, leading to it receiving protection from the state. Alternatively, iNat observations might show there are many previously unknown populations of a supposedly rare species, justifying moving that species to a lower tier of protection. Of course, all of this would ideally be backed up by field research by professionals, but the original information source would be iNat users.

Lastly, it seems that including citizen science as part of EIRs has now become California policy. As an example, the City of Sausalito recently issued a draft EIR for its proposed 2040 General Plan update (under CEQA, major government initiatives can require an EIR, not just specific developments). In response, the California Department of Fish and Wildlife (CDFW) asked the city to update its proposed criteria for biological assessments to add the following language (my emphasis):

The special study shall be conducted by a qualified biologist and shall minimally include a data review and habitat assessment, prior to Project approval, to identify whether any special-status plant or animal species’ habitat or sensitive natural communities occur on-site. The data reviewed shall include the biological resources setting of the EIR and the best available current data for the area, including an updated review of the California Natural Diversity Database (CNDDB) and relevant citizen scientist data such as iNaturalist. Habitat assessments shall be completed at an appropriate time of year for identifying potential habitat and no more than one year prior to Project activity commencement.

So if you submit an iNat observation of something rare near a development site in Sausalito (or presumably any other part of California, in time) then the developer will be required to take account of it!

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In the US it depends on the type of environmental assessment. It absolutely can be used in the context of the Endangered Species Act, important provisions of which have a best available science requirement, such as in biological opinions for federal projects/actions (which are effectively types of environmental impact statements). The National Environmental Policy Act under which most EISes are done in the US doesn’t have a best available science requirement though some read that into it. But even in those cases if it’s the only data available, it could be used as long as it is credible.

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