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RULE §4.206The Procedures and Standards Relating to Distribution of Electronic Copies of Instructional Material Under this Section

(a) 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 or 15th business day after publication of the material, whichever comes later.

(b) A request made by an institution of higher education under this provision 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;

  (2) be signed by the person at the institution with primary responsibility for services for students with disabilities or his designee; and

  (3) include all available identifying information related to the material, to include but not limited to ISBN number.

(c) A publisher or manufacturer may require that a request made by an institution of higher education under this section include from each student for whom the institution is mailing 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 re-selling 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 contained 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.

(d) Each electronic copy of instructional material must:

  (1) be in a format that:

    (A) except as provided by this subsection, 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 as required by paragraph (1) of this subsection, 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 email or via a File Transfer Protocol site with notification provided to an institution as to the availability of the material.

(e) The Coordinating Board may impose a reasonable administrative penalty, not to exceed $250 per violation, against a publisher or manufacturer that knowingly violates this section. The Coordinating Board shall provide for a hearing to be held, in accordance with Chapter 1, Subchapter B (relating to Dispute Resolution) of Coordinating Board rules, to determine whether a penalty is to be imposed and the amount of any penalty. The Coordinating Board shall base the amount of any 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.

(f) Notwithstanding any other provision of this section, a publisher or manufacturer is not required to comply with subsection (a) or (d) of this section, as applicable, if the coordinating board, using procedures and criteria adopted by coordinating board rule 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.

(g) 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 re-use in order to comply with this Section. An institution that is authorized to re-use previously requested instructional materials must comply with provisions in subsections (b) and (c) of this section related to requesting instructional material and all other provisions outlined in this section.

(h) 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 or the student who requested the materials.

Source Note: The provisions of this §4.206 adopted to be effective November 29, 2007, 32 TexReg 8488

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