Senate Bill No. 194
(By Senator Hunter)
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[Introduced January 10, 2008; referred to the Committee on
Education; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §18B-1-12, relating
to providing electronic copies of instructional material for
blind, visually impaired students and students with dyslexia
who are enrolled at public institutions of higher education.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §18B-1-12, to read as
follows:
ARTICLE 1. GOVERNANCE.
§18B-1-12. Electronic instructional materials for blind and
visually impaired students and students with
dyslexia.
(a) The following words when used in the article mean:
(1) "Blind or visually impaired student" includes any student whose visual acuity is impaired to the extent that the student is
unable to read the print in the standard instructional material
used in a course in which the student is enrolled.
(2) "Commission" shall mean the West Virginia Higher Education
Policy Commission.
(3) "Dyslexia" is a condition of dyslexia considered to be a
disability under the Americans with Disabilities Act (42 U.S.C.
§1210 et seq.) of §504 of the Rehabilitation Act of 1973 (29 U.S.C.
§794).
(4) "Institution of higher education" means any institution as
defined by Sections 401(f),(g), and (h) of the federal Higher
Education Facilities Act of 1963, as amended.
(5) "Instructional material" means a printed textbook or
other printed instructional material or a combination of a printed
book and supplementary printed instructional material that:
(A) Conveys information to or otherwise contributes to the
learning process of a student; and
(B) Was published on or after January 1, 2004.
(6) "Special instructional material" means instructional
material in Braille, large print, audio format, digital text, or
any other medium or any apparatus that conveys information to or
otherwise contributes to the learning process of a blind or
visually impaired student or a student with dyslexia.
(b) This section applies only to instructional material that
is:
(1) Written and published primarily for post-secondary
instruction of students; and
(2) Required or essential for a student's success in a
course at an institution of higher education, as identified by the
instructor of the course for which the instructional material will
be used, in consultation with the person at the institution with
primary responsibility for services for students with disabilities;
(c) Materials that are considered required or essential for a
course or program requirement are those materials that are:
(1) Identified in writing by an academic department or
instructor as being essential for the student to compete a course
or program requirement;
(2) Listed on a course syllabus, or other written format used
to describe the course; or
(3) Identified by agreement between instructor and student as
essential for completing a program requirement not part of specific
course, such as an independent research project.
(d) In order to facilitate students getting their materials in
a timely manner, instructors and academic departments shall comply
with their institution's procedures for turning in materials and
reading lists by the established deadlines.
(e) Students who qualify to receive instructional materials
under this provision will submit their request to the publisher or manufacturer through their institution. To assist the institution
in producing special instructional material, a publisher or
manufacturer of instructional material assigned by an institution
of higher education for use by students in connection with a course
at the institution shall provide to the institution on the
institution's request in accordance with this section a copy in an
electronic format of the instructional material. The publisher or
manufacturer, as applicable, shall provide the electronic copy not
later than the 15th business day after the date of receipt of the
request.
(f) A request made by an institution of higher education under
this section must:
(1) Certify that for each blind or visually impaired student
or student with dyslexia who will use specialized instructional
material based on the requested copy of the material in an
electronic format for a course in which the student is enrolled at
the institution, either the institution or the student has
purchased a printed copy of the instructional material; and
(2) Be signed by the person at the institution with primary
responsibility for services for students with disabilities; and
(3) Include all available identifying information related to
the material, to include, but not limited to ISBN number.
(g) A publisher or manufacturer may require that a request
made by an institution of higher education under subsection (f) include from each student for whom the institution is making the
request a signed statement in which the student agrees:
(1) To use the requested electronic copy and related special
instructional material only for the student's own educational
purposes;
(2) Not to copy or otherwise distribute in a manner that
violates 17 U.S.C. §101 et seq. the requested electronic copy or
the instructional material on which the requested electronic copy
is based;
(3) Agree to return electronic copy of instructional material
to the institution's disability services office upon reselling the
original printed material, dropping the course for which the
material was requested, or withdrawing from the institution; and
(4) Attest that any violation of provisions in the signed
statement may jeopardize future provision of electronic formats by
the manufacturer or publisher for the student under this section,
and may result in further disciplinary measures from the
institution.
(h) Each electronic copy of instructional material must:
(1) Be in a format that:
(A) Contains all of the information that is in the
instructional material, including any text, sidebar, table of
contents, chapter headings, chapter subheadings, footnotes, index,
glossary, and bibliography, and is approved by the publisher or manufacturer, as applicable, and the institution of higher
education as a format that will contain that material; and
(B) Is compatible with commonly used Braille translation and
speech synthesis software; and
(C) Includes any correction or revision available at the time
the electronic copy is provided.
(2) If the publisher or manufacturer and the institution of
higher education are not able to agree on a format, the publisher
or manufacturer, as applicable, shall provide the electronic copy
of the instructional material in a format that can be read by a
word processing application and that contains as much of the
material specified by that subsection as is practicable.
(3) Materials provided under this section may be delivered by
traditional mail, by e-mail, or via a file transfer protocol site
with notification provided to an institution as to the availability
of the material.
(i) The Higher Education Policy Commission may impose a
reasonable administrative penalty, not to exceed two hundred and
fifty dollars per violation, against a publisher or manufacturer
that knowingly violates this section. The commission shall base
the penalty on:
(1) The seriousness of the violation;
(2) Any history of a previous violation;
(3) The amount necessary to deter a future violation;
(4) Any effort to correct the violation; and
(5) Any other matter justice requires.
(j) Notwithstanding any other provision of this section, a
publisher or manufacturer is not required to comply with any
requirement in this section, if the commission, using procedures
and criteria adopted by commission rules and based on information
provided by the publisher or manufacturer, determines that:
(1) Compliance by the manufacturer or publisher would violate
a law, rule, or regulation relating to copyrights; or
(2) The instructional material on which the requested
electronic copy is based is:
(A) Out of print; or
(B) In a format that makes it impracticable to convert the
material into an electronic format.
(k) The manufacturer or publisher has the sole discretion to
allow an institution to maintain a repository of electronic formats
of previously requested instructional materials for reuse in order
to comply with this section. An institution that is authorized to
reuse previously requested instructional materials must comply with
all other provisions outlined in this section.
(l) A manufacturer or publisher may deliver an electronic
format authorized under this section with electronic security
measures (to include encryption) so long as the measures do not
interfere with access for the institution of the student who requested the materials.
NOTE: The purpose of this bill is to provide electronic
instructional materials to visually disabled students.
This section is new; therefore, strike-throughs and
underscoring have been omitted.