BILL ANALYSIS Ó
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