February 16, 2018

AB 609: California Leads on Open Access to Publicly Funded Research

Open_Access_logoCalifornia has become the first state to mandate open access for the products of some taxpayer-funded research. On September 29 Governor Jerry Brown signed into law the California Taxpayer Access to Publicly Funded Research Act, coauthored by Assemblyman Brian Nestande (R–Palm Desert) and Assemblyman Mike Gatto (D–Los Angeles). AB 609, as the bill is known, ensures that those who stand to benefit most from state-funded research, such as healthcare providers, students and professors, biotech professionals, and anyone with an interest in the field, will have access to current research results free of charge. Beginning January 1, 2015, the products of more than $200 million in annual research paid for by California taxpayers will be freely available—with some restrictions: AB 609 applies only to research funded by the Department of Public Health.

The legislation requires researchers whose work is supported by a fully or partially state-funded grant, and has been accepted for publication by a peer-reviewed journal, to submit an electronic version of this resulting article to a publicly accessible database. The database itself is not specified; suggested options include the University of California’s (UC) eScholarship Repository at the California Digital Library (CDL), PubMed Central, or the California Digital Open Source Library (CDOSL). The article would then be made publicly accessible through the California State Library no later than 12 months from its publication date. (If work has previously been submitted to a repository to satisfy OA requirements from another institution or funding agency, the researcher only needs to supply a link to that article to the funding agency and the California State Library.)

AB 609 does not call for mandatory open licensing. While most work deposited in CDOSL is required by California Education Code to bear a Creative Commons CC-BY attribution allowing others to “use, distribute, and create derivative works based upon the digital material while still allowing the authors or creators of the material to receive credit for their efforts,” material deposited under AB 609 is exempt from this condition. All work will be listed and linked to in an online bibliography.


The bill was first introduced in February 2013, and was supported in a 2013 letter to the California State Senate signed by, among others, Google, the Internet Archive, and the Public Library of Science (PLoS). It passed the house assembly in June 2013. In the process, however, the bill underwent some significant changes that did not please everyone.

The original legislation called for commercial publishers to be granted an embargo on articles of no longer than six months. Eventually the permissible embargo was extended to a period of up to a year. This reflects the maximum 12-month embargo that publishers are allowed under the 2008 National Institute of Health Public Access Policy, which mandates that all NIH-funded research papers be deposited in PubMedCentral, the National Library of Medicine’s repository. The new bill’s drafters felt that a shorter state embargo period could result in a potential conflict with California researchers’ eligibility for federal grants, according to assemblyman Nestande’s chief of staff Nanette Farag.

Heather Joseph, executive director of the Scholarly Publishing and Academic Resources Coalition (SPARC), told LJ, “We would have liked to see six months—it’s been pretty well proven that a six-month period is eminently workable.” The Fair Access to Science and Technology Research Act (FASTR), a federal open access bill introduced in February 2013, calls for a maximum six-month embargo. Nonetheless, says Joseph, “We understand that right now these embargo periods are part of the policy landscape.”

In addition, an earlier version of the legislation would have applied the OA mandate to all state-funded research, but AB 609 now only covers research funded by the Department of Public Health. Due to the large number of papers funded by the state, a broader application of the law might have had significant implications for OA in the United States as a whole; UC researchers account for 12 percent of the journal Nature’s content, and UC San Francisco is the largest public institutional recipient of National Institute of Health (NIH) funding. In the Los Angeles Times, columnist Michael Hiltzik asserts, “The state’s law, if it were much more aggressive, could have had as much influence on academic publishing as its fuel efficiency standards have on the auto industry and the environment.”

OA in the United States has often depended on concessions to gain acceptance. In 2013 the ten-campus UC system instituted an OA policy requiring that its faculty members deposit a copy of their work in the university’s eScholarship archive and grant the university a non-exclusive license to make it freely available. However, the policy contains an opt-out clause for work appearing in journals that insist on exclusive rights. The clause has been criticized for allowing the publishers of larger or more prestigious journals to demand that authors opt out, a limitation that OA policies were designed to bypass in the first place. It is, however, little utilized, according to Catherine Mitchell, director of CDL’s Access & Publishing division at UC. “Very few publishers have explicitly responded by saying they will require waivers,” she told LJ “The numbers are very small compared with the total number of UC-authored publications.”


Even with its concessions, AB 609 is considered to be a success for OA initiatives. In a statement on its website, (SPARC) stated, “California’s taxpayers fund this research and they have a right to expect that the results are available, and that they themselves have access to published results. To remain at the forefront of cutting-edge discoveries and innovations, we must make sure that this information is available to those who can translate this knowledge into public benefits.”

In addition, Joseph told LJ, “It’s fascinating and encouraging that a bill controlled by a Republican passed—California legislation is Democrat-controlled and it can be very difficult for Republican legislation to move. We wondered whether Brown would sign it. So it’s encouraging that everyone got together around open access.”

Illinois may be the next state to pass state-level OA policy. The Illinois Open Access to Articles Act (SB 1900), introduced into the State Senate by Senator Daniel Biss (D-Evanston) in February 2013, would apply to work from Illinois State Universities and Colleges. If the legislation passes, it would need to be presented to the Illinois State Senate by January 1, 2015.

In the meantime, California hopes to leverage its strong research initiative to be a leader in OA policy. “There is a great deal of enthusiasm about the passage of AB 609,” CDL’s Mitchell told LJ. “This is a really good step for California…. We have an opportunity to lead the way here and let other states watch what happens. Hopefully we’ll have good news for everyone.”

Lisa Peet About Lisa Peet

Lisa Peet is Associate Editor, News for Library Journal.

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