BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 501


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          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  








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          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  








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               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.









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          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.) 









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          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  








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          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  








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          "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  








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          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  








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          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 


          









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          REGISTERED SUPPORT / OPPOSITION:


          Support




          None on file 


          Opposition


          None on file 


          Analysis Prepared  
          by:              Thomas Clark / JUD. / (916) 319-2334