BILL ANALYSIS �
Bill No: AB 609
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2013-2014 Regular Session
Staff Analysis
AB 609 Author: Nestande
As Amended: June 18, 2013
Hearing Date: June 25, 2013
Consultant: Paul Donahue
SUBJECT
State-funded research
DESCRIPTION
Entitled the California Taxpayer Access to Publicly Funded
Research Act, this bill requires open access publication of
research papers when research has been funded by state
agencies. Specifically, this bill :
1)Applies to all state agencies, boards, commissions, and
the like, except that the University of California (UC)
and the California State University (CSU) are expressly
excluded from the definition of a state agency for
purposes of this bill.
2)Requires any grantee that receives funding, in whole or
in part, in the form of a research grant from a state
agency to provide for free public access to any
publication of a state agency-funded invention or state
agency-funded technology.
3)For any manuscript that is accepted for publication in a
peer-reviewed journal, the grantee must ensure that an
electronic version of the final peer-reviewed manuscript
is submitted to the funding agency or to an appropriate
AB 609 (Nestande) continued
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publicly accessible database<1> approved by the agency no
later than 12 months after the official date of
publication, to be made publicly available.
4)Requires the grantee to make reasonable efforts to comply
with the open access publication requirement through
submission of the manuscript to an approved publicly
accessible database, including notifying the funding
agency of submission.
5)If the grantee is unable to submit the manuscript to an
approved publicly accessible database, the grantee may
alternatively provide the manuscript to the funding
agency, no later than 12 months after the official date
of publication. <2>
6)Specifies that for specified meeting abstracts and other
documents, the grantee shall comply by providing the
manuscript to the funding agency no later than 12 months
after the official date of publication.
7)Clarifies that grantees are responsible for ensuring that
any publishing or copyright agreements concerning
submitted articles fully comply with this section.
8)Entitles grantees to use grant money for publication
costs, including fees charged by a publisher for color
and page charges, or fees for digital distribution.
9)Exempts grantees that receive funding from a state agency
or funding agency that has an existing publication
requirement that meets or exceeds the requirements of
this bill, on or before the effective date of this
chapter.
EXISTING LAW
1)Directs the Department of General Services (DGS) to
assist state agencies in the management and development
of intellectual property developed by state employees or
-------------------------
<1>The UC's eScholarship Repository at the California
Digital Library, PubMed Central, and the California Digital
Open Source Library are listed as examples or suitable
databases.
<2> In lieu of the final peer-reviewed manuscript, the
grantee may submit the final published article.
AB 609 (Nestande) continued
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with state funding, and authorizes DGS to develop a
database of state-owned intellectual property.
2)Authorizes state agencies and departments to, upon
request by DGS, share records and information related to
intellectual property generated by state employees, or
with state funding.
3)Imposes certain restrictions on employees and former
employees of the DGS with respect to divulging certain
information provided by state agencies and departments
regarding intellectual property.
BACKGROUND
Purpose : The author states that "AB 609 will provide public
access to research that is particularly important in
California? By removing barriers in the sharing and use of
this research, we can speed the pace of scientific
discovery, and encourage new, interdisciplinary approaches
to research challenges. Expanded sharing and reuse of
results will lead to increased use and application of
research, and accelerate the translation of this knowledge
into products and services that will benefit the public,
spur innovation, and fuel long-term economic growth."
"AB 609 will ensure that the public can access the
published results of California taxpayer-funded research
for free. This bill requires each researcher receiving a
state-funded research grant to submit an electronic copy of
their research publication to an appropriate digital
repository no later than twelve months after the work is
published. This policy will apply to peer-reviewed research
publications that have been supported, in whole or in part,
with direct costs from a California state agency, and not
indiscriminately to all public postsecondary faculty
members receiving their salary from the state. The
completed research publications will become openly
accessible, free of charge, to the public."
"California taxpayers invest hundreds of millions of
dollars annually in research. State research funding
includes research and development by universities and state
agencies, as well as efforts such as the California
Institute for Regenerative Medicine (CIRM) and specific
disease research programs. Upon completion of a project,
researchers write an article explaining the results of the
AB 609 (Nestande) continued
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study, which is then submitted to an academic journal for
publication. Access to the information contained in these
research articles is an essential component of our state's
investment in science, and should be widely shared with the
public.
"Unfortunately, most taxpayers - including students,
medical professionals, scientists, and entrepreneurs -
cannot readily gain access to all the research paid for
with their taxes. The majority of research funded with
public dollars is available only with costly journal
subscriptions. Single articles can cost up to $30 each, and
some journals cost up to $40,000 year. The 10-campus
University of California system spends nearly $40 million
each year to buy access to academic journals, even though
many of the articles are written, reviewed, and edited by
UC professors as part of their academic scholarly duties."
Exemptions for the CSU and UC systems : Under this bill, all
state agencies issuing research grants are subject to its
provisions; however the bill expressly excludes the UC and
CSU systems from the definition of "state agency" for
purposes of this bill.
The author's office states emphatically that UC and CSU are
not exempt from this bill because individual professors and
researchers employed by the UC and CSU are required to
comply with the provisions of this bill if they receive a
grant. The author does acknowledge, however, that state
university-funded, or "internally" funded studies and
research are not subject to the provisions of the bill,
noting that "this policy will apply to peer-reviewed
research publications that have been supported, in whole or
in part, with direct costs from a California state agency,
and not indiscriminately to all public postsecondary
faculty members receiving their salary from the state." The
author adds that the intent of this bill is not to dictate
how the universities appropriate their funding, so the bill
only applies to research grants issued by the state
agencies. The author also notes that state universities are
not classified as "state agencies" within the Executive
AB 609 (Nestande) continued
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Branch.<3>
The University of California : Writing in support of AB 609,
the UC notes that "[s]cholars at [UC] have a vested
interest in ensuring that their work reaches the widest
possible audience, including members of the public whose
tax dollars support the University's research.
Unfortunately, the increasing cost of journal subscriptions
in recent years often acts to restrict access to research
results. This increasing restriction on the dissemination
of research results runs counter to the spirit in which UC
faculty, researchers and students undertake their scholarly
activity. Accordingly, UC is supportive of efforts?to make
research as widely accessible as possible."
In a letter to the UC Provost dated April 11, 2013, the UC
Academic Senate outlined a proposed policy for increasing
open access to scholarly works created by UC faculty
members. In general, their suggested policy has two
components - a default non-exclusive license to the
University to exercise copyright rights in faculty members'
scholarly articles, combined with deposit of the final
version of each published article in the eScholarship
repository of the California Digital Library.
Peer review : The author's office states that AB 609 will
not affect the integrity of the research and peer review
process. According to the author, there is a common
misconception that editors and peer-reviewers are employed
by the publisher. However, they are not paid by the
publisher of the journal. They are fellow academics who
volunteer their time as part of their scholarly duties.
Thus, the author concludes that this bill will not impact
research integrity or peer review. Research resulting from
state-funded grants will still be submitted to professional
journals for peer review, and will continue to follow the
same process. The author additionally states that research
submitted for peer review is done so anonymously. This is a
standard that has always been in place in order to protect
the integrity of the work so that the publisher, editors,
and peer reviews cannot demonstrate a bias for or against
-------------------------
<3> The author's office also states that "UCSF has already
implemented and open access policy for university funded
research, and the UC is exploring this system-wide by
utilizing the California Digital Library (CDL). Over 56,000
publications are currently available through CDL."
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the researcher. Information about granting organizations
and reporting requirements are viewable after the work has
been accepted for publication.
Opponents believe that this bill would adversely impact the
peer review system that ensures the high quality and
reliability of scientific and other scholarly research.
Opponents further contend that the core publisher
activities of supporting peer review, ensuring the
continued integrity and reliability of the scholarly
record, etc., do not come without costs and ongoing
investment. One opponent says that, if the government truly
believes that peer review is important, it must find a way
to sustain peer review - either by adopting access policies
that do not compete with publishers or undermine their
subscription base, or by paying for the full cost of peer
review, journal hosting, etc. through article processing
fees.
New CIRM regulations have similar publication requirements :
California's stem cell agency recently modified its
regulations governing publication requirements. Effective
July 1, 2013, CIRM regulations state that, for any
manuscript that is peer-reviewed and accepted for
publication in a scientific journal, the grantee must
ensure that an electronic version of the final
peer-reviewed manuscript is submitted to PubMed Central or
to CIRM to be made publicly available no later than 12
months after the official date of publication. In addition,
Grantees are responsible for ensuring that any publishing
or copyright agreements concerning submitted articles fully
comply with this new regulation.<4> These provisions
correspond to the requirements set forth in AB 609, and
will replace existing regulations that require submission
of a "500 word abstract written for the general public that
highlights the findings of the published body of work."<5>
National Institute of Health (NIH) publication
requirements : The NIH Public Access Policy requires public
access to taxpayer-funded research within 12 months
following publication. The author and supporters state
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<4> See, 17 Cal. Code Regs. � 100303. Publication
Requirements. (Effective July 1, 2013)
<5> See, 17 Cal. Code Regs. � 100303. Publication
Requirements. (Repealed on July 1, 2013)
AB 609 (Nestande) continued
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that, since its implementation, the NIH policy has ensured
that more than 90,000 new biomedical manuscripts are
deposited each year, and that demand for this information
is extremely high, with more than 700,000 unique users
accessing material from this repository each weekday.
New federal guidelines : In February, 2013, the White House
Office of Science and Technology Policy issued a policy
memorandum to all Executive Departments and Agencies on the
issue of increasing access to the results of federally
funded scientific research.
The federal guidelines differ from what opponents call a
"one size fits all" regulatory scheme set forth in AB 609.
The corresponding federal directive states that each
agency's public access plan shall:
"Ensure that the public can read, download, and
analyze in digital form final peer reviewed
manuscripts or final published documents within a
timeframe that is appropriate for each type of
research conducted or sponsored by the agency.
Specifically, each agency:
i) shall use a twelve-month post-publication
embargo period as a guideline for making research
papers publicly available; however, an agency may
tailor its plan as necessary to address the
objectives articulated in this memorandum, as
well as the challenges and public interests that
are unique to each field and mission combination,
and
ii) shall also provide a mechanism for
stakeholders to petition for changing the embargo
period for a specific field by presenting
evidence demonstrating that the plan would be
inconsistent with the objectives articulated in
this memorandum."
Statements of support : Supporters generally state that
requiring state-funded research to be made publicly
available will eliminate barriers to knowledge and make
important findings more accessible to researchers,
students, and the public. Supporters contend that the
increased sharing and use of this information will help to
advance the pace of discovery, as well as to speed the
translation of this knowledge into innovative new services
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and products.
Statements in opposition : Opponents contend that there will
be significant state costs associated with open access
fees. They also state that, in the medical field, a
12-month embargo period might be appropriate, but this
rigid time period fails to recognize the considerable
variation among various fields of science in terms of the
recoverability of publisher investments in the review,
publication, and distribution of the articles in question.
To illustrate, the Seismological Society of America notes
that in the earth sciences, the "shelf life" of journals is
much longer than many sciences. They note that they
recently invested over $100,000 to digitize and post all of
the articles published since the beginning of one of its
journals in 1911 because they are still in demand.
Opponents say that AB 609 will not promote public access to
scientific research because the repositories mentioned in
the bill are restricted and are not available to most
researchers. They note that PubMedCentral, run by NIH, only
accepts manuscripts reporting only on the life sciences.
The California Digital Library only accepts manuscripts
produced by UC. They note that the proposed backup is to
have state agencies collect the articles, but there is no
funding allocated in the bill for this purpose.
Finally, opponents suggest that, rather than advance this
bill, that the Legislature should instead order a study of
the feasibility and desirability of requiring each
researcher to submit an electronic copy of each original
research paper. Opponents state that such a feasibility
study bill was recently passed by the Illinois Legislature,
in which the study was to examine the costs to the state to
collect papers and develop electronic systems for their
distribution, the costs to the state of the potential
transfer of publishing business models from a reader pays
to an author pays system, and the like.
Suggested amendment re: codification of legislative intent :
This measure would codify several findings and declarations
of the Legislature in Section 13989.4 of the Government
Code. The author and the committee may wish to exclude
these provisions altogether, or at a minimum, recast these
provisions in the bill as uncodified findings and
declarations.
PRIOR/RELATED LEGISLATION
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AB 744 (Perez), Chapter 463, Statutes of 2012. Authorizes
DGS to identify and provide policy guidance for state
agency management of intellectual property developed by
state employees or with state funds.
SB 1064 (Alquist), Chapter 637, Statutes of 2010. Among
other things, requires a grantee that licenses an invention
or technology that arises from research funded by CIRM to
pay 25% of the revenues it receives in excess of $500,000
to the General Fund.
SUPPORT:
Advancement Project
Association of College and Research Libraries
Association of Research Libraries
California Academy of Preventive Medicine
California Association of Physician Groups
California Association of Psychiatric Technicians
California Common Cause
Californians Aware
Coalition of Open Access Policy Institutions (COAPI)
Creative Commons
CREDO Action
eCitizens.org
eLife Sciences Publications
Electronic Frontier Foundation
Engine Advocacy
Evari GIS Consulting, Inc.
Figshare
Google
Greater Western Library Alliance
Howard Hughes Medical Institute
Internet Archive
Measured Voice
Mozilla Foundation
National Association of Graduate-Professional Students
New Media Rights
O'Reilly Media
Open Knowledge Foundation America
Open Science Federation
PeerJ
PLOS
Public Knowledge
Public Library of Science
AB 609 (Nestande) continued
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Public.Resource.Org
Scholarly Publishing & Academic Resources Coalition (SPARC)
Susan G. Komen - California Affiliates
TechNet
UCLA Institute for Society and Genetics
University of California
Several individuals
OPPOSE:
American Mathematical Society
American Physiological Society
American Society of Mechanical Engineers
Association of American Publishers, Inc.
California Chamber of Commerce
Human Factors and Ergonomics Society
John Wiley & Sons, Inc.
Seismological Society of America
DUAL REFERRAL: Senate Judiciary Committee
FISCAL COMMITTEE: Senate Appropriations Committee
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