BILL ANALYSIS Ó AB 501 Page 1 Date of Hearing: April 21, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 501 (Levine) - As Introduced February 23, 2015 As Proposed to be Amended SUBJECT: Resources: Delta research KEY ISSUE: Should researchers receiving state funds to conduct research on the Sacramento-San Joaquin Delta be required to promptly prepare and submit results for publication and share their findings and results with other state-funded researchers? SYNOPSIS This bill would promote the sharing of data and research findings among persons and entities engaged in state-funded research on a critical component of California's water system. The Sacramento-San Joaquin Delta Reform Act of 2009 created the Delta Stewardship Council to develop and implement a plan for managing the Delta to meet the state's twin goals of water reliability and ecological sustainability. The Act also created a Delta Science Program to sponsor necessary research toward these ends. This non-controversial bill would require a researcher that receives state funds to share findings, data, and material collected with other state-funded Delta researchers. The bill was referred to this Committee to consider whether the sharing and dissemination requirements constitute an infringement upon the intellectual property rights AB 501 Page 2 of researchers. Although California lacks a consistent approach to handling competing intellectual property claims in state-funded research, individual state agencies tend to follow rules and guidelines established by federal agencies, which in turn look to the general framework provided by the Bayh-Dole Act of 1980. At the risk of oversimplification, federal and state policies generally recognize that a state-funded researcher retains patent rights to inventions that might result from the research and copyrights to any expression of the research, unless a contract expressly provides otherwise or assigns rights in some other manner. However, there is nothing unusual about requiring a researcher, as a condition of receiving the grant, to share research results, including collected data and samples, if possible, with other researchers. This does not preclude a researcher from seeking patent and copyright protection for anything that the researcher invents or creates as a result of the research. Indeed, under this bill the state does not assert any new claim to property rights, intellectual or otherwise; it simply says that if the researcher accepts the grant then he or she agrees to share results as required by the grant. SUMMARY: Requires a person conducting Delta research and whose research is funded in whole or in part by state funds to share findings, data, samples, collections, and other supporting material created and gathered in the course of the research, as specified. Specifically, this bill: 1)Declares Legislative intent that persons conducting Delta research have a responsibility, as members of the scientific community, to share results and findings with other researchers for the public benefit, including data, samples, and other material collected while conducting the research. 2)Requires a researcher, whose research is funded in whole or in part with state funds, to do all of the following: a) Provide the Delta Science Program with access to all primary data created for conducting Delta research. b) Promptly prepare and submit for publication, with authorship that accurately reflects the contributions of AB 501 Page 3 those involved, all significant findings from Delta research. c) Permit and encourage the publication by others performing state-funded research, unless the recipient intends to publish or disseminate those findings by itself. d) Share with other researchers, at not more than incremental cost and within a reasonable time, the primary data, samples, physical collections, and other supporting materials created or gathered in the course of conducting Delta research. e) Encourage and facilitate the sharing of primary data, samples, physical collections, and other supporting materials created or gathered in the course of research. f) Release privileged or confidential information only in a form that protects the privacy of individuals and subjects involved. 3)Provides that a researcher who fails to comply with the sharing and dissemination requirements, as specified, is not eligible for state-funding until he or she complies. 4)Permits the Delta Independent Science Board to adopt guidelines to provide adjustments to, or exemptions from, the requirements of this bill if necessary to safeguard the rights of individuals or the validity or integrity of research. 5)Requires a state agency that funds or participates in Delta research to implement appropriate policies to disseminate and share Delta research results, including by making it a condition of a grant that the grantee share research data, collections, and findings with other researchers. AB 501 Page 4 EXISTING LAW: 1)Creates the Delta Stewardship Council to oversee agencies responsible for implementing the Delta Plan and to promote the state's co-equal goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. Creates the Delta Independent Science Board to oversee the Delta Science Program. Requires the Delta Science Program to fund scientific research, communicate scientific information to policymakers, promote independent scientific peer review, and coordinate with Delta agencies to promote science-based adaptive management. (Water Code Sections 85050 to 85280.) 2)Declares that it is in the interest of the state to ensure that the results of state-funded research are promptly developed and protected to make the research available in the public domain, where appropriate. (Government Code Section 13988 (b).) 3)Provides that everything that an employee acquires by virtue of his employment, except compensation which is due to him by his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment. (Labor Code Section 2860.) 4)Provides, under federal law, for the disposition of patent rights for inventions made with federal assistance. Generally permits third-party contractors to elect to retain intellectual property rights in an invention while granting the government a non-exclusive, nontransferable, irrevocable license. Declares the policy and objective of the Congress to use the patent system to promote the utilization of inventions arising from federally supported research and to ensure that the Government obtains sufficient rights in federally supported inventions to meet the needs of the Government and protect the public against nonuse or unreasonable use of inventions. (35 U.S.C. Section 200 et seq.) AB 501 Page 5 FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: This measure will require a person who conducts state-funded research on the Sacramento-San Joaquin Delta to share her findings, data, and material collected with other state-funded Delta researchers. The approach taken by this bill is wholly consistent with the policies of other federal and state agencies that fund scientific research for the public benefit. This measure would not preclude a researcher from seeking patent and copyright protection for anything that she invents or creates as a result of the research. Indeed, under this bill, the state does not assert any new claim to property rights, intellectual or otherwise; it simply says that if the researcher accepts the grant, she agrees to share data and results as required. Background: The Delta Stewardship Council is charged with achieving the state's "coequal goals" of providing a more reliable water supply for California and protecting, restoring, and enhancing the Sacramento-San Joaquin Delta ecosystem. In furtherance of these goals, the Delta Science Program seeks unbiased research to help lawmakers and state agencies develop scientifically-based water and environmental policies for the Delta. According to the Council's Web site, the science program "has funded 40 research grants totaling more than $25 million. The Science Program considers funding scientific research to be a critical component in establishing unbiased and authoritative knowledge directly relevant to Bay-Delta actions. This knowledge will fundamentally advance the understanding of the complex environments and ecosystems within the Bay-Delta system to aid policy-makers, managers and other decision-makers." ( http://deltacouncil.ca.gov/science-program ) Purpose: According to the author, the fundamental purpose of this bill is to ensure that state-funded scientific research is widely shared and accessible to the scientific community, policy makers, and the public. Specifically, the bill requires AB 501 Page 6 researchers to make primary data available to the Delta Science Program; promptly prepare and submit work for publications; permit other researchers to publish if the grantee does not intend to publish the findings; and share primary data, samples, physical collections, and other supporting materials created or gathered in the course of the research. The bill would also permit the Delta Independent Science Board to adopt guidelines that facilitate the intent of the bill while at the same time create exceptions and adjustments as necessary to safeguard the rights of individuals, the integrity of the research, or otherwise accommodate legitimate research interests. The bill would also require any state agency that funds or participates in Delta research to implement policies to facilitate the sharing and dissemination of research data and results in ways that are appropriate to the circumstances. Finally, the bill provides that if any researcher fails to comply with the sharing and dissemination requirements of this bill, the researcher will not be eligible for state funding until she complies. Intellectual Property Issues: Presumably the bill was referred to this Committee to consider whether the sharing and dissemination requirements constitute an infringement upon the intellectual property rights of researchers. State law provides that anything created by an employee in the scope of employment, including intellectual property, belongs to the employer. An independent contractor or grant recipient, however, generally retains intellectual property rights, but this may vary depending upon the policies of the particular state agency that awarded the grant or contract and conditions in the grant or contract. In the past fifteen years, the Legislature has made several efforts to assist state agencies in managing and developing intellectual property created by state employees or by independent researchers using state funds. Much of this legislation was prompted by a 2000 report by the Bureau of State Audits (now the California State Auditor) which concluded that AB 501 Page 7 "many state agencies are not sufficiently knowledgeable about the intellectual property they own." The report recommended that the Legislature "clarify state law to specifically allow all state agencies to own, and if necessary, formally register intellectual property they create or otherwise acquire when it is deemed to be in the public's best interest." (Bureau of State Audits, State-Owned Intellectual Property, November 2000.) Between 2004 and 2007, at least four bills or resolutions attempted to create a central office to coordinate the policies of the many state agencies funding research, but all of these efforts failed. In 2012, however, AB 744 (Chapter 463, Stats. of 2012) gave the Department of General Services the power to assist state agencies in managing intellectual properties. However, these legislative efforts were primarily concerned with helping state agencies assert the state's right to state-funded intellectual property, subject of course, to any counter claims of researchers which are based in federal patent or copyright law. This bill, however, does not attempt to claim any intellectual property rights on behalf of the state. Rather, the bill merely seeks to clarify that the state has the right to require state-funded researchers, as a condition of receiving state funds, to share and disseminate research findings and results, whether by promptly submitting results for publication, or by sharing research data, findings, and results with other state-funded researchers. Sharing and disseminating the findings, data, and material as provided would not, by itself, expand or limit any right of the researcher to seek a patent for any invention resulting from the research or recording a copyright on any manuscript or similar created work based on the research. This bill is somewhat similar to last year's AB 609 (Chapter 789, Stats. of 2014). That legislation requires any person receiving a research grant from the State Department of Public Health to provide free public access to any publication resulting from that research. Although this bill does not impose the same requirement on the researcher, the policy rationale for that legislation is nearly identical to the bill under AB 501 Page 8 consideration: the results of research funded at state expense to serve a public benefit should be shared with the state to the widest extent possible. Like the bill under review, which is modeled in part on the policies promulgated by the National Science Foundation, AB 609 was modeled on the research funding policies of the National Institutes of Health. These federal policies are, in turn, modeled on the federal Bayh-Dole Act of 1980. At the risk of oversimplification, federal and state policies generally recognize that a government -funded researcher retains patent rights to inventions and copyrights to any expression of the research, unless a contract expressly provides otherwise or assigns rights in some other manner. However, there is nothing unusual about requiring a researcher, as a condition of receiving the grant, to share research results, data, and other materials, or to require the researcher to promptly prepare and submit research findings for publication. This bill, therefore, seems fully consistent with the policies of state and federal agencies, the latter of which have been in place for thirty-five years and have served the dual purpose of making publicly-funded research widely available while simultaneously protecting the legitimate intellectual property rights of researchers. Arguments in Support: According to the author, "AB 501 fosters open, transparent, and credible Delta science by requiring that, for state-funded Delta research, significant findings are promptly published, primary data is made available to the Delta Science Program, and that Delta researchers share their data and supporting materials with others in the scientific community at no more than an incremental cost and within a reasonable time." The author contends that under existing law and practice "there is a lack of formal communication and transparency among State agencies with regard to environmental data, despite the fact that enormously important policy decisions are being made based upon scientific assumptions. Nowhere is this more apparent than in the Sacramento-San Joaquin Delta." Proposed Author Amendments: The author will take the following AB 501 Page 9 amendments in this Committee: 1) On page 2 delete lines 23-24. - On page 2 delete line 25 and on page 3 lines 1-12 delete contents of Section 85285.5 and insert: It is in the intent of the Legislature that persons conducting Delta research have a responsibility, as members of the scientific community, to share results and findings with other researchers for the public benefit, including data, samples, and other material collected while conducting the research. 1) On page 4 lines 3-9 delete contents of Section 85287 and insert: A state agency that funds or participates in Delta research shall implement appropriate policies to disseminate and share Delta research results, including by making it a condition of a grant that the grantee share research data, collections, and findings with other researchers. 2) On page 4 lines 10-14 delete contents of Section 85287.5 and insert: A researcher that does not substantially comply with the requirements of Section 85286 within six months of completing the Delta research project is not eligible for state funding until the researcher complies with those requirements. 3) On page 4 delete lines 15 to 23 AB 501 Page 10 REGISTERED SUPPORT / OPPOSITION: Support None on file Opposition None on file Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334