BILL ANALYSIS
AB 386
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Anthony Portantino, Chair
AB 386 (Ruskin) - As Amended: April 13, 2009
SUBJECT : Public postsecondary education: instruction
materials: disabled students.
SUMMARY : Authorizes California's public colleges and
universities to provide captioning for nonprinted instructional
materials for students with disabilities if the publisher does
not respond to a request for this service within the two-week
period. Specifically, this bill :
1)Clarifies that publishers of audiovisual instructional
materials and digital media files, including "podcasts" and
"Web clips" as defined, must provide captioning or other
alterations to make these materials accessible to students
with disabilities at California's public colleges and
universities.
2)Requires publishers of nonprinted instructional materials to
provide a captioned copy of these materials, for use by
students with disabilities, within two weeks of receiving a
written request from a California public college or
university.
3)Authorizes California's public colleges and universities to
provide captioning for the nonprinted instructional materials
for students with disabilities if the publisher does not
respond to a request for this service within the two-week
period.
FISCAL EFFECT : Unknown
COMMENTS : Background : Existing law requires nonprinted
instructional materials to be compatible with Braille
translation and speech synthesis software but does not list
"audiovisual captioning software." Thus, when captioning or
other accessible information is not already available on
audiovisual or other type of media, the college or university
must ask the publisher to provide the captioning to make the
information accessible to students.
AB 386
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Need for this bill : According to the California Community
Colleges (CCC) Chancellor's Office, publishers' responses to
these situations vary. Some publishers require a written
request, which can delay by weeks the student's ability to use
the materials. Others will give permission upon payment to
provide this service, and some never respond. Many CCC campuses
are able and willing to add the captioning; however, legal
authority is necessary to caption audiovisual and other types of
media when publishers are not responsive to college requests.
Copyright protections : Existing law provides that the
electronic copies of printed and nonprinted instructional
materials for use by students with disabilities must include the
student's agreement the he or she will only use the materials
for his or her own educational purposes; that he or she will not
copy or duplicate the material for use by others; and that the
disk or file be copy-protected or the college or university take
other precautions to ensure that publishers' copyright
protections are not violated. Further, existing law and this
bill do not authorize any use of instructional materials that
would constitute an infringement of the publishers' copyrights
under federal law. Since existing law was enacted in 1999,
staff is unaware of any disputes over compliance with
publishers' copyright protections that have led to litigation.
Publishers' concerns : The Association of American Publishers
(AAP) argues that this bill and the existing law it modifies
violate federal copyright and constitutional law. Specifically,
AAP states that by allowing colleges and universities to caption
nonprinted instructional materials, this bill violates
publishers' federal copyright protections because the college or
university could distribute the materials to other
hearing-impaired students without any compensation to the
copyright owner. Further, compelling a publisher to provide a
captioned version of its audiovisual materials is an
unconstitutional "taking" because it would require a publisher
to expend funds on behalf of deaf students.
Issues to consider :
1)Should hearing impaired students be treated differently than
visually impaired students? The concerns raised by AAP should
also apply to materials for visually-impaired students. What
is the policy justification for adapting nonprinted
instructional materials for one group of students and not
AB 386
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another? Further, is CCC in violation of the federal American
Disabilities Act if they do not provide access to these
materials for all students?
2)The author may wish to consider amendments to clarify the
publisher notification process to ensure that the written
request is received by a designated party within the
publishing company and that the publisher formally recognize
receipt of the request.
Previous legislation : AB 422 (Steinberg), Chapter 379, Statutes
of 1999, established existing law.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Community Colleges Chancellor's Office (sponsor)
Community College League of California
Disability Rights California
Faculty Association of California Community Colleges
Long Beach Community College District
Opposition
None on file.
Analysis Prepared by : Sandra Fried / HIGHER ED. / (916)
319-3960