BILL ANALYSIS Ó
AB 744
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CONCURRENCE IN SENATE AMENDMENTS
AB 744 (John A. Pérez)
As Amended August 24, 2012
Majority vote
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|ASSEMBLY: |65-4 |(January 30, |SENATE: |26-9 |(August 28, |
| | |2012) | | |2012) |
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Original Committee Reference: B.,P. & C.P.
SUMMARY : Requires the Department of General Services (DGS) to
identify and provide policy guidance for state agency management
of intellectual property (IP) developed by state employees or with
state funds.
The Senate amendments :
1)Replace all references to the Office of Intellectual Property
(OIP) with the DGS in relation to identifying and tracking state
IP.
2)Require the DGS to track IP generated by state employees or
state funding, commencing January 1, 2015, and every three years
thereafter.
3)Specify that the provisions of this bill relating to the
development of an IP database, plan, or agreement do not apply
to the use of expressive works created by non-state employees or
without state funding.
4)Specify that state-funded research contracts with the California
State University and the University of California shall be
subject to specified model contract provisions.
5)Create the following definitions:
a) "Expressive works" to mean a play, book, magazine,
newspaper, musical composition, audiovisual work, radio or
television program, work of art, work of political or
newsworthy value, or an advertisement or commercial
announcement for any of these works, if it is fictional or
nonfictional entertainment, or a dramatic, literary, or
musical work; and,
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b) "State funding" to not include funding from the California
Film and Television Tax Credit Program.
6)Redefine "state funding" to also exclude any fee, tax, fine, or
penalty assessed, collected, or received by an air pollution
control district or an air quality management district,
including any fee, tax, fine, or penalty that is authorized by
the state but is not remitted to a state agency. However, state
funding shall include a fee, tax, fine, or penalty that is
collected by an air pollution control district or an air quality
management district that is remitted to a state agency, such as
the State Air Resources Board.
7)Make technical and clarifying changes.
8)Make additional legislative findings.
AS PASSED BY THE ASSEMBLY , this bill established the OIP within
the DGS for purposes of identifying and providing policy guidance
for state agency management of IP developed by state employees or
with state funds.
EXISTING LAW permits various state agencies to enter into
contracts and agreements, create liabilities, and develop, own,
and control the use of IP developed by the state.
FISCAL EFFECT : According to the Senate Appropriations Committee:
1)Up to $350,000 in 2012-13 and 2013-14 to develop legally
supported policies for identifying, and procedures for
protecting, IP.
2)Up to $700,000 annually for 1.5 staff counsels, three associate
governmental program analysts, one staff services manager, one
executive assistant and one office technician with potentially
offsetting state agency workload savings.
3)Cost split approximately 80% General Fund (GF) and 20% special
funds.
4)Unknown increase in GF and special fund revenue to the extent
the processes formalized by this bill relating to IP result in
royalties to the state.
COMMENTS : According to the author, "To date there is no clear
accounting of what IP the state owns or the types of agreements
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state agencies have entered into. Three reports on the issue have
expressed the need to establish a centralized IP tracking system.
This disjointed system ultimately costs the state more money. As
technology continues to advance, state agencies without sufficient
knowledge of how to protect IP will become increasingly vulnerable
to unauthorized use and inability to capitalize on reduced
contracts costs or increasing revenue to the state. AB 744 sets
up the framework to determine what IP the state owns and informs
state agencies of their rights and abilities to protect the
state's IP."
IP typically consists of copyrights, trademarks, patents, and
trade secrets. In November 2000, the Bureau of State Audits (BSA)
published the report, "State-Owned IP," which found that many
state agencies have insufficient knowledge about IP they own and
incomplete written policies on managing IP. This could result in
state agencies failing to act against individuals and entities
that inappropriately use the state's IP by profiting from products
developed at state expense, unauthorized use of trademarks, and
state patents. BSA recommendations include developing an outreach
campaign informing state agencies of their rights and abilities
concerning IP and establishing guidelines for state agencies to
administer their IP. The BSA report identified more than 113,000
items of state-owned IP across 125 state agencies, but estimated
that there were more.
Under this bill, OIP would be required to identify state IP, and
establish and periodically update guidelines for state agencies to
appropriately administer their IP. These guidelines would include
policies about when products should be considered IP, when
products should be placed in the public domain, and when agencies
should sell or license their IP. OIP would also be required to
develop an outreach campaign to help state agencies understand
their rights with respect to their IP and to develop sample
agreements to effectuate the state's rights to IP developed by
state employees.
This bill, as amended in the Senate, is consistent with Assembly
actions.
Analysis Prepared by : Joanna Gin / B.,P. & C.P. / (916)
319-3301 FN: 0005714
AB 744
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