§ 67302.5. — (Amended by Stats. 2012, Ch. 621, Sec. 4.)

California § 67302.5.

• Jurisdiction: California
• Code EDC: Education Code - EDC
• Div.: 5.
• Title 3.: DIVISION 5. GENERAL PROVISIONS
• Part 40.: PART 40. DONAHOE HIGHER EDUCATION ACT
• Ch. 14.: CHAPTER 14. Disabled Student Services
• Art. 1.: ARTICLE 1. General Provisions

Text

(a)
As used in this section, the following terms have the following meanings:
(1)
“Captioned” or “captioning” means the display of text corresponding to, and synchronized with, the spoken-word audio portion of instructional material.
(2)
“Electronic format” means a computer file or other digital medium that embodies instructional material, is not itself captioned, but from which a captioned format may be created using commercially available technology.
(3)
“Institution” means the University of California, the California State University, a California Community College, or any campus or location
of any of those institutions.
(4)
“Instructional material” means any audiovisual work, as that term is defined in Section 101 of Title 17 of the United States Code, that is created and published primarily for use by students in postsecondary instruction, and is required for a student’s success in a course of study in which a student with a disability is enrolled. The determination of which materials are “required for student success” shall be made by the instructor of the course in consultation with the official making the request pursuant to subdivision (b) in accordance with guidelines issued pursuant to subdivision (i). “Instructional material” includes audio-visual works that constitute digital open source textbooks and related materials developed or acquired pursuant to Section 66409.
(5)
“Publisher” means any individual, firm, partnership, or
corporation that is engaged in the business, whether for profit or not for profit, of selling instructional material in which it owns or controls some or all of the copyright to that material. “Publisher” does not include any entity that is a subdivision of any state or other governmental body, other than the State of California.
(6)
“Writing” includes facsimile transmission and e-mail.
(b)
(1)
A publisher that publishes instructional material used by students attending, or by instructors for use in classroom presentations at, the University of California, the California State University, or a California Community College, shall, upon request by an institution on behalf of a student or instructor at that institution, do one of the following:
(A)
Provide access to a captioned format of the
instructional material directly to the student or the instructor by providing an Internet password, delivery of a disk or file, or in any other appropriate manner.
(B)
Provide to the institution a captioned format of the instructional material.
(C)
Provide to the institution an electronic format, if available, of the instructional material, unless the institution already has an electronic format in its possession, and a license permitting the institution to create a captioned format of the material, to the extent the publisher has the right to grant that license.
(2)
A publisher shall respond to a properly addressed request that meets the requirements of subdivision (c) in the following manner, as applicable:
(A)
Within 10 calendar days after the
receipt of the request, the publisher shall provide to the institution a notice, in writing, as to which of the three actions in paragraph (1) it intends to take.
(B)
If the publisher does not possess an electronic format of the instructional material, it shall advise the institution of that fact in the notice provided pursuant to subparagraph (A).
(C)
If the publisher lacks sufficient rights to distribute, or license the institution to create, a captioned format of some or all of the instructional material covered by the request, it shall advise the institution of that fact in the notice provided pursuant to subparagraph (A), and shall provide both of the following to the institution, to the extent that the publisher is able to do so:
(i)
An electronic format of the instructional material to which the publisher does
not control the applicable rights.
(ii)
The name and contact information of the person that the publisher believes to be capable of authorizing creation of a captioned format of the instructional material. Any person capable of authorizing the creation of the captioned format shall be deemed to be the publisher of that material for purposes of this section.
(D)
If the publisher notifies the institution that it will provide an electronic format and a license permitting the institution to create a captioned format, it shall provide the electronic format and the license within seven calendar days of providing the notice pursuant to subparagraph (A).
(E)
If the publisher notifies the institution that it will provide a captioned format of the requested material, the publisher shall provide the captioned format as soon as
it is possible to do so, but not later than 14 calendar days after providing the notice pursuant to subparagraph (A).
(3)
If a publisher fails to respond to a request, as required by paragraph (2), within 10 calendar days of receiving the request, the institution shall be deemed to have received a license permitting the institution to create a captioned format of the instructional material.
(4)
If and when the California Open Source Digital Library is established pursuant to statute, the request described in paragraph (1) shall be submitted to, and satisfied by, the library where the instructional material needed by a student with a disability is available from that library.
(c)
(1)
An institution, if it chooses to submit a request pursuant to subdivision (b), shall include
in the request all of the following:
(A)
Certification that the institution or an instructor at that institution has purchased the instructional material either (i) for use by a student with an auditory disability that prevents the student from using the instructional material in a noncaptioned format or (ii) for use in a class in which a student with such a disability is enrolled, or that a student with such a disability attending, or registered to attend, that institution has purchased the instructional material. The requirements of this subparagraph shall be satisfied if the instructional material consists of a digital open source textbook or related materials developed or acquired pursuant to Section 66409.
(B)
Certification that the student has an auditory disability that prevents the student from using instructional material in noncaptioned format.
(C)
Certification that the instructional material is for use by the student or an instructor in connection with a course in which the student is registered or enrolled at the institution.
(D)
The signature of the coordinator of services for students with disabilities at the institution, or by an official responsible for monitoring compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) at the institution.
(E)
At a minimum, an e-mail address and a facsimile number at which the person signing the request may be contacted.
(2)
A publisher may require, in addition to the requirements enumerated in paragraph (1), a request to include a statement signed by the student agreeing to both of the following:
(A)
He or she will use the captioned format of the instructional material solely for his or her own educational purposes.
(B)
He or she will not distribute or reproduce the captioned format for use by others.
(d)
(1)
Any institution possessing an electronic format of an instructional material shall take reasonable precautions to ensure that the electronic format is not distributed to any third party, except as provided in paragraph (2) and subdivision (e), and shall, to the extent possible, maintain in effect all copy-protection measures embedded in any electronic format provided by a publisher.
(2)
An institution may retain an outside vendor to assist it in the exercise of rights granted to it by a publisher or by this section, and
shall ensure, pursuant to an agreement that the publisher and the institution shall both have the power to enforce, that the electronic format is not further distributed and that any captioned format made from it is provided only to the institution.
(e)
(1)
If a publisher provides to an institution a captioned format of instructional materials, the institution shall provide the captioned format to the student or instructor on whose behalf the request was made and may retain a copy of that captioned format.
(2)
Except as provided in paragraph (4), if a publisher grants an institution a license to create a captioned format, the institution shall provide a copy of the resulting captioned format to the publisher and may retain a copy of the captioned format.
(3)
Pursuant to paragraph (1) or (2), the
institution may provide additional copies to any other of its students, any instructor employed by the institution for classroom use, any student at any other institution, or any other institution for classroom use, if the institution collects and forwards to the publisher all institutional and student certifications required under subdivision (b).
(4)
The institution shall cease to distribute additional copies of a captioned format to any other institution if either of the following occurs:
(A)
The institution receives notice that a captioned format has become commercially available from the publisher or other copyright owner of the instructional material. However, if this occurs, the institution may continue to allow its own instructors to use any captioned format that the institution previously created.
(B)
The
publisher, or other copyright owner, of the instructional material notifies the institution that the institution’s captioned format contains material errors or omissions.
(5)
An instructor who receives a captioned format, or access to a captioned format pursuant to subparagraph (A) of paragraph (1) of subdivision (b), shall not use the captioned format for any purposes except for the classroom use for which the captioned format was requested or, in accordance with paragraph (3), for use in other classes at the institution with which the instructor is affiliated at the time that a request was made pursuant to subdivision (b).
(f)
(1)
The Chancellor of the California Community Colleges, the Chancellor of the California State University, and the President of the University of California may each designate an office, or may by agreement designate a single office,
to maintain a registry of publisher contact information. A registry office designated pursuant to this subdivision may be a center described in subdivision (g) of this section or subdivision (g) of Section 67302.
(2)
A publisher intending to sell instructional materials in the state shall provide to the office designated pursuant to paragraph (1) the name and contact information of its office or employee designated to handle requests made under this section, or an Internet Web site containing that information. If a publisher fails to provide that information, a request under subdivision (b) may be sent to a publisher at the address of its primary place of business, to the attention of its rights and permissions department.
(g)
The Chancellor of the California Community Colleges, the Chancellor of the California State University, and the President of the University of California
may each establish one or more centers within their respective segments to process requests pursuant to this section. A center under this subdivision may be a center established under subdivision (g) of Section 67302. All of the following requirements apply with respect to any center established or designated for the purposes of this subdivision:
(1)
If an institution designated as within the jurisdiction of a center chooses to process requests in the manner set forth in this subdivision, it shall submit all requests made under this section to the center, which shall transmit these requests to publishers.
(2)
Each center shall make every effort to coordinate requests within its segment.
(3)
A publisher shall not be required to respond to requests from institutions that a center has been designated to represent,
unless those requests are communicated through the center.
(4)
The center shall, in handling all electronic formats and captioned formats for the benefit of students enrolled in the institutions the center represents, have the same rights and obligations arising under subdivisions (d) and (e) as the institutions on whose behalf it acts.
(h)
Access to a captioned format, an electronic format, or a license to create a captioned format pursuant to subdivision (b) shall be provided free of any fee or royalty that is additional to the initial purchase of the instructional material by the student, the instructor, or the institution.
(i)
(1)
The Board of Governors of the California Community Colleges and the Trustees of the California State University may, and the Regents of the University of
California are requested to, adopt guidelines consistent with this section for its implementation and administration. It is the intent of the Legislature that the guidelines, if adopted, address all of the following:
(A)
The designation of materials deemed “required for student success.”
(B)
The procedures and standards relating to distribution of files and materials pursuant to subdivisions (b), (d), and (e).
(C)
The possibility of involving outside networks or partnerships between publishers and institutions to provide for access to instructional materials for students with disabilities and to facilitate the issuance of licenses by publishers under subparagraph (C) of paragraph (1), and paragraph (3), of subdivision (b).
(D)
Other matters as are
deemed necessary or appropriate to carry out the purposes of this section.
(2)
For purposes of paragraph (1), the Board of Governors of the California Community Colleges, the Trustees of the California State University, and the University of California are encouraged, from time to time, in the reasonable discretion of the respective governing body, to convene an advisory group, at least one-third of the membership of which shall be representatives designated by publishers as having a substantial volume of transactions with institutions under this section.
(j)
Nothing in this section shall be construed to require a publisher to produce or deliver an electronic format of instructional material if the publisher offers that instructional material for sale only in a form that is not computer-readable.
(k)
Nothing in this
section shall be construed as vesting any copyright or copyright interest in any captioned format in any person or entity other than the publisher.
(l)
Nothing in this section shall be construed to authorize any use of instructional materials that would violate the takings clause of the Fifth Amendment to the United States Constitution or would constitute an infringement of copyright under the Copyright Revision Act of 1976, as amended (17 U.S.C. Sec. 101 et seq.).
(m)
This section exclusively governs requests for captioned formats of instructional materials and Section 67302 does not apply to requests for captioned formats of instructional materials.
(n)
The provisions of this section shall apply to the University of California, the California State University, and the California Community Colleges only to the
extent that the respective institution, by appropriate resolution, makes these provisions applicable.

Legislative History

Amended by Stats. 2012, Ch. 621, Sec. 4. (SB 1052) Effective January 1, 2013. Operation contingent upon funding, as described in Sec. 5 of Ch. 621.