BILL ANALYSIS Ó
Bill No: AB 609
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Lou Correa, Chair
2013-2014 Regular Session
Staff Analysis
AB 609 Author: Nestande
As Amended: June 4, 2014
Hearing Date: June 10, 2014
Consultant: Paul Donahue
SUBJECT
State-funded research; Publications
DESCRIPTION
Entitled the California Taxpayer Access to Publicly Funded
Research Act, this bill requires research papers be
provided to the state when a "state agency" has financed
any portion of the research. Specifically, this bill :
1)Specifies that any grantee that receives funding, in
whole or in part, in the form of a research grant from a
state agency shall provide for free public access to any
publication of a state agency-funded invention or state
agency-funded technology.
2)Defines a "state agency" to mean every state office,
department, division, bureau, board, and commission, but
does not include the University of California, the
California State University, the Legislature, the courts,
and any agency in the judicial branch of government.<1>
3)Requires a state agency that provides any funding in the
form of a research grant to include the following terms
and conditions in the research grant to which a grantee
must adhere as a condition of receiving the grant:
a) Any published work must be made available to the
public no later than 12 months after official
publication, but grantees may request an additional 6
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<1> See Public Contract Code § 10295.1
AB 609 (Nestande) continued
PageB
months with the appropriate data and justification.
b) Grantees must ensure that any publishing or
copyright agreements concerning submitted articles
correspond to the 12-month public access provisions.
c) Grantees must report to the state agency the final
disposition of the research grant, such as, but not
limited to, if it was published, when it was
published, where it was published, and, when the
12-month time period expires, and where the manuscript
will be available for open access.
d) State agencies shall retain information regarding
all issued research grants that resulted in published
works.
4)Specifies that 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<2> is submitted to the funding
state agency or to an appropriate publicly accessible
database no later than 12 months after the official date
of publication, to be made publicly available.<3>
5)Provides that if the grantee provides data to the state
agency showing there is a more appropriate time period
for that field of study, the grantee may request that the
not later than 12-month time period be extended to 18
months.
6)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.
7)If the grantee is unable to submit the manuscript to an
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<2> A "peer-reviewed manuscript" means a manuscript after
it has been peer reviewed and in the form in which it has
been accepted for publication in a scientific journal.
<3>The UC's eScholarship Repository at the California
Digital Library, PubMed Central, and the California Digital
Open Source Library are examples of suitable databases.
AB 609 (Nestande) continued
PageC
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. <4>
8)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.
9)States that grantees are responsible for ensuring that
any publishing or copyright agreements concerning
submitted articles fully comply with this section.
10)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.
11)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.
12)Specifies that nothing in AB 609 shall authorize any use
of a peer-reviewed manuscript that would constitute
copyright infringement under federal law.
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<4> In lieu of the final peer-reviewed manuscript, the
grantee may submit the final published article.
AB 609 (Nestande) continued
PageD
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
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
1)Purpose : The author states: "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 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 ? [the] completed research publications will
become openly accessible, free of charge, to the public."
2)Exemptions for the CSU and UC systems : The version of AB
609 that failed passage last year<5> expressly excluded
the University of California (UC) and California State
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<5> AB 609 failed passage in this Committee on June 25,
2013. The Committee granted Reconsideration.
AB 609 (Nestande) continued
PageE
University (CSU) systems from the definition of "state
agency" in the bill. The CSU and UC systems remain exempt
in the version of the bill before the Committee today.
These exemptions are relevant, in part because California
public universities and colleges are responsible for a
significant share of state-funded research. If the
purpose of AB 609 is to ensure that the public has access
to the published results of California taxpayer-funded
research at no cost, then it stands to reason that the
state universities and colleges should be made to adhere
to this policy.
In fact, however, the University of California does not
actually require "open access" to research and
scholarship funded by UC. The University has an open
access policy, which authorizes the University to publish
scholarly articles and manuscripts pursuant to a
nonexclusive license. However, a taxpayer-financed author
is entitled to opt out of the UC open access policy. The
policy states that, "upon express direction by a Faculty
member, the University of California will waive the
license for a particular article, or delay access to the
article for a specified period of time." <6>
The author or the Committee should consider amendments to
the bill that: (1) require State colleges and
universities to comply with the policies outlined in AB
609, or (2) incorporate into AB 609 the waiver and
opt-out procedures set forth in the Open Access policy
that has been adopted by the University of California.
3)No guarantee of public access to manuscripts : AB 609
requires a grantee to submit electronic or hard copy
versions of manuscripts accepted in a peer-reviewed
journal to the state agency funding the grant, or to one
of several publicly accessible databases. But the bill
does not require the state agency to take any steps to
ensure that the manuscript is actually made available to
the public after the embargo period.
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<6> Open Access Policy for the Academic Senate of the
University of California, available at
http://osc.universityofcalifornia.edu/open-access-policy/pol
icy-text/
AB 609 (Nestande) continued
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The absence of an express requirement to ensure that the
public can obtain open, free access to state-funded
articles or manuscripts begs the question of whether
these documents would be available to the public as
envisioned by AB 609.
In contrast, the National Institutes of Health (NIH)
Public Access Policy ensures that NIH will provide public
access to taxpayer-funded research within 12 months
following original publication. This is accomplished by a
specific appropriation, which was included in the
Consolidated Appropriations Act of 2008 (H.R. 2764). This
Congressional appropriations bill provided funding to NIH
to ensure that complete electronic copies of
peer-reviewed research and findings from NIH-funded
research would appear in PubMed Central.<7>
Rather than simply requiring the grantee to submit a
manuscript to the state agency or to a publicly
accessible database, the author or the Committee should
consider amending AB 609 to specifically direct the state
agency to ensure that the manuscripts it receives are
indexed, formatted and published on the ca.gov Internet
domain or other appropriate database.
4)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 and products.
5)Statements in opposition : Opponents say that AB 609 will
not promote public access to scientific research because
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<7> PubMed Central (PMC) is a free digital repository that
archives publicly accessible full-text scholarly articles
that have been published within the biomedical and life
sciences journal literature. Submissions into PMC undergo
an indexing and formatting procedure which results in
enhanced metadata and unique identifiers which enrich the
data for each article on deposit. Content within PMC can
easily be interlinked to many other databases and accessed
via various Internet search and retrieval systems.
AB 609 (Nestande) continued
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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 on the life sciences. Likewise, 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.
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 timeframe 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.
6)Suggested amendment concerning 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 un-codified findings and
declarations.
7)Technical amendment : On page 4, line 7, the bill should
be amended to read as follows:
(C) Grantees shall report to the state agency the final
disposition of the research grant, such as, but not
limited to, if it was published, when it was published,
where it was published, when the 12-month time period
that may be extended by to 18 months pursuant to
subdivision (b) expires, and where the manuscript will be
available for open access.
PRIOR/RELATED LEGISLATION
AB 744 (Perez), Chapter 463, Statutes of 2012. Authorizes
AB 609 (Nestande) continued
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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 the
California Institute for Regenerative Medicine (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
Public Knowledge
Public Library of Science
Public.Resource.Org
Scholarly Publishing & Academic Resources Coalition (SPARC)
AB 609 (Nestande) continued
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Susan G. Komen - California Affiliates
TechNet
UCLA Institute for Society and Genetics
University of California
Several individuals
OPPOSE:
American Institute of Physics
American Mathematical Society
American Physiological Society
American Society of Mechanical Engineers
Association of American Publishers, Inc.
California Chamber of Commerce
Council of Scientific Society Presidents
Human Factors and Ergonomics Society
John Wiley & Sons, Inc.
Seismological Society of America
The Optical Society
DUAL REFERRAL: Senate Judiciary Committee
FISCAL COMMITTEE: Senate Appropriations Committee
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