Legal Guide for Online Course Creators

Last updated: 12 November 2024

Legal Guide for Online Course Creators – Online course creation has recently boomed. For course creators, new possibilities for sharing knowledge and monetising their expertise have been unlocked. For course participants, this has enabled them to develop unique skills and learn from subject matter experts worldwide. 

But with these opportunities come unique legal challenges. Online course creators must navigate a complex legal landscape from copyright and IP protection to limiting liability and safeguarding privacy. If you’re a course creator, this article offers a comprehensive legal guide to help you launch and run your online course business.

Click on any of the questions below to jump to that section of this legal guide.

If you still have a question after reading this guide, get in touch, as we’d love to keep adding your questions to this comprehensive guide.

Legal Issues with Online Courses

What are the legal issues of creating an online course?

Here are some of the legal issues you may need to consider when creating an online course:

• Copyright: Is your content your original work, or has the person who created it given you permission to use it? What steps have you taken to protect your intellectual property from unauthorised use?
• Privacy: Have you developed a clear Privacy Policy that complies with Australia’s Privacy Act 1988 (Cth)? What about data protection regulations like GDPR or CCPA – do they apply to you, and have you complied with them?
• Terms & Conditions: Do you have these in place? Have you considered refunds, cancellations, intellectual property rights, and liability limitations?
• Marketing: Are you aware of your obligations under the Australian Consumer Law? Are you complying with email marketing and spam regulations?
• Trademarks: Have you taken steps to protect your trademark from copycats? Are you infringing the trademark rights of others?
• Licensing: Have you ensured that your course participants understand how they may/may not use your content? Do they know they cannot make unauthorised copies or share with people they shouldn’t?
• Education and Qualification Rules: Do you have the necessary qualifications, certificates or licences to provide your courses under local laws?
• Disclaimers: Do you have appropriate disclaimers, and are they legally binding on your course participants?
• Data Protection and Security: Do you have suitable measures to protect your business and customers from hackers and security breaches?

What are the legal issues of hosting my course on a third-party website?

There are now a number of online course hosting and management services. Some of the most popular platforms include:

Check their Terms of Service and Privacy Policies to understand how they handle the following legal issues:

• Content Ownership: Do you own the content you publish on the platform, or does the platform take ownership of it? Ensure you’re comfortable with the platform’s claims and content usage restrictions.
• Data Privacy: Confirm that the platform complies with Australian data privacy laws and aligns with your Privacy Policy.
• Payment Processing: Understand the platform’s payment processing, fees, and chargeback policies to safeguard your income.
• Availability & Uptime: Review service level agreements to know what happens if platform issues arise. Who is responsible if your courses go offline? Will the platform accept responsibility?

What regulations and licenses apply to online courses in Australia?

In Australia, there are a variety of regulations and licensing requirements that can apply to online courses, depending on the industry and the nature of the training you provide. 

Courses that are focused on vocational skills and training may be regulated by the Australian Skills Quality Authority (ASQA). ASQA oversees the compliance of vocational education and training (VET) providers and sets national standards for things like course design, delivery, assessment, resources, facilities, staff qualifications and experience.

Courses that are focused on professional skills and training may be overseen by the respective professional body. For example, a professional licence may be necessary for courses covering regulated professions like law, medicine, psychology, financial services, fitness, education and teaching, engineering, architecture, real estate, veterinary science, etc.

We recommend you consult your industry’s association or board to verify any required regulations, licenses, certifications, memberships or ethical codes.

What consumer protection laws do I have to comply with in Australia?

Creating and selling online courses in Australia requires compliance with key consumer protection laws, including:

• Competition and Consumer Act 2010 (CCA): Schedule 2 of the CCA sets out Australian Consumer Law (ACL) and addresses a range of consumer protection issues such as guarantees, misleading and deceptive conduct, unfair contract terms, anti-competitive behaviour, unfair market practices, and product safety.
• Spam Act 2003: This controls commercial electronic messages, such as emails and SMS, and requires obtaining consent and providing an unsubscribe option.
• Privacy Act 1988: This includes the Australian Privacy Principles (APPs), a comprehensive set of rules regarding data collection, consent, information access, and protection.
• National Vocational Education and Training Regulator Act 2011: This applies to vocational education and training courses, outlining registration and accreditation requirements for providers.
• Industry-Specific Laws: There are rules around who can provide training in many industries in Australia. This is because these professions require specialist knowledge and adherence to ethical and professional standards. You must obtain the relevant licences and qualifications to offer training in these fields. Non-compliance can result in penalties, including fines and potential prosecution.

Ensure your online courses comply with relevant Australian consumer protection laws by providing accurate information, fulfilling advertised promises, and protecting customer privacy and data.

Copyright & Intellectual Property (IP)

Are online courses considered intellectual property?

Yes. Online courses, typically classified as literary and artistic works, are generally considered intellectual property. As the course creator, you hold the copyright to the content and have exclusive rights to reproduce, distribute, display, and create derivative works based on the content.

To protect your intellectual property rights, make sure you provide your course users with clear:

• Licensing Terms
• Copyright Notices, and
• Disclaimers

Ensure your course users see these notices and understand the rules before they register for your course. For example, direct your users to a page displaying these notices and ask them to check a box to confirm their understanding and agreement.

Bear in mind it’s a lot easier to prevent breaches of your intellectual property rights by ensuring your users know the rules in advance rather than taking legal action and cleaning things up after a breach! 

Who owns an online course?

The individual who created the course generally owns it and holds the copyright, granting them exclusive rights to reproduce, distribute, display, and create derivative works based on the content. They also have the right to offer licenses for using, distributing, copying, or otherwise utilising all or part of the course content. 

However, sometimes the person who created the course may not actually own it. For example, this might be the case if the course was created under an employment or contractor relationship. The employer may claim they hold the copyright, not the individual creator. Or the course may have been created by multiple contributors who share the ownership jointly.

Alternatively, if the course is distributed via a third-party platform, then it is possible that the third party might claim ownership of the course. Check carefully the Terms & Conditions of any third-party platform you use.

Should I copyright my online course?

In Australia, there is no system for registering copyright. Copyright protection is automatically granted once an original work is created. Therefore, if you are primarily distributing your online course in Australia, it is unnecessary to register your course for copyright protection. You will have copyright protection regardless. 

However, other countries, such as the USA, have a system for registering copyright. There, you still have copyright protection as soon as your original work is created. However, you also have the option to register your course for copyright protection, making it easier to take legal action against infringements. 

Therefore, if your course is likely to be distributed in the USA or other countries outside Australia, you may wish to consider registering for copyright in those jurisdictions.

Should I trademark my online course?

Although you cannot trademark the content of an online course itself, you can protect the unique name, logo, or other identifiers associated with it. Trademarks protect brand elements that distinguish goods or services from others in the market. Registering a trademark can secure legal protection for your online course’s brand identity.

Remember that the trademark registration process can be complex, expensive and time-consuming. If you need help, consider using our Trademark Registration Service.

How can I protect my online course content and prevent piracy?

Safeguarding your online course content from unauthorised use or piracy is essential for protecting your intellectual property rights. To protect your content and prevent piracy, consider the following strategies:

• Copyright Notice: Use Copyright Notices to inform course users about your ownership of the course content.
• Terms & Conditions: Include Terms & Conditions in your course agreement or Terms of Use that clearly outline guidelines and restrictions on sharing, copying, or distributing your content.
• Watermarks: Add watermarks to your videos and slides to deter unauthorised copying or sharing of your content.
• Secure hosting: Use a secure hosting platform with features like password protection, encryption, and digital rights management (DRM) to prevent unauthorised access or copying.
• Licensing Agreement: Include a Licensing statement detailing how long users can access your online course and any content usage restrictions.
• Monitoring and enforcement: Regularly monitor your content’s usage to detect unauthorised use or copying and take appropriate legal action if necessary.
• Non-Disclosure Agreement (NDA): Use NDAs with contractors or employees who have access to your content, ensuring they do not share or use it without permission.
• Limited access: Restrict access to your course content to registered students or customers, preventing unauthorised sharing or use.

By employing a combination of legal protections, technological measures, and vigilant monitoring and enforcement, you can protect your online course content and prevent piracy.

Can I use copyrighted material in my online course?

In addition to protecting your intellectual property rights, it is important to ensure that you are not breaching anyone else’s intellectual property rights. For example, if you have developed your courses based on the information you obtained online, you must ensure you are not plagiarising anyone else’s content.

If you are using someone else’s content, you need to check the necessary permissions or licenses:

• Public domain: Public domain materials are not subject to copyright protection and can be used freely.
• Creative Commons: Some copyrighted materials are available under Creative Commons licences, enabling the copyright owner to specify usage conditions.
• Permission: If you wish to use some materials that are not in the public domain and are not available under a Creative Commons licence, then you should consider asking permission from the copyright owner to use their material. This may involve securing a licence or paying a fee.
• Fair use: The fair use doctrine may allow limited use of copyrighted material for purposes like commentary, criticism, news reporting, teaching, scholarship, or research. However, fair use rules can be complex and vary depending on the situation, so if you are unsure, don’t assume you can rely on the doctrine.

The rules around using someone else’s copyrighted material can be complicated to understand. If in doubt, seek legal advice, or avoid using the copyrighted material at all. It’s crucial to avoid infringing on existing copyrights when creating your online course.

Online Course Terms of Use

What is an Online Course Terms of Use Agreement?

An Online Course Terms of Use Agreement is the contract between you and your customers. It outlines the terms and conditions under which your online course can be accessed and used. This agreement is typically presented to customers before they purchase or register for the course. It is designed to protect your intellectual property rights and establish clear guidelines for using your course content.

If you host your course on a third-party service, you will need your own Terms of Use and Privacy Policy and post them on your third-party host. Thinkific, a very popular online course provider, explains how to do this on its website here.

What are the most important clauses in a Terms of Use Agreement?

The most important clauses in a Terms of Use agreement will depend on the specific nature of your online course. Here are some key issues that are commonly addressed in Terms of Use agreements:

• Purpose: This clause should clearly state the agreement’s purpose, such as establishing the terms and conditions under which your online course can be accessed and used.
• Access, Payment, and General Use: These clauses should outline payments, how the course may be accessed and for how long, the right to cancel or ban users for breach of terms, the specific obligations of users, such as to comply with the Terms of Use Agreement and any applicable laws or regulations.
• Intellectual Property Rights: This clause should establish your ownership of the course content and intellectual property rights. It gives users a “licence” to use the course material and should provide specific rules relating to that licence. It may also include provisions related to copyright, trademarks, and other forms of protection.
• Restrictions on Use: This clause should outline how your course content can only be used for personal or educational purposes. The clause may include uploading restrictions and prohibit unauthorised sharing, copying, or distribution of the content.
• Disclaimers and Limitations of Liability: You should include disclaimers for reliance on the content, warranty disclaimers, limitations of liability, and other legal provisions designed to protect you from potential claims or lawsuits.
• Privacy and Data Protection: This clause should outline your Privacy Policy and data protection practices, including how you collect, use, and store user data.
• Termination and Refunds: You should outline the circumstances under which you may terminate access to your course content, such as for violations of the Terms of Use agreement, and how users may terminate any membership or access to the course and should provide information on refund policies.

An effective Terms of Use agreement should be clear, concise, and tailored to your online course’s specific needs and goals. It should give your users confidence about your courses’ operations, demonstrate professionalism, and protect your legal interests.

Do I need to have a refund policy for my online course?

Yes, your Terms of Use should explain how you handle refunds. Under the Australian Consumer Law (ACL), you must refund users in some circumstances – for example, if you cannot provide the goods/services as promised.

It is against the law to have a standard “no refunds” policy, although you may be able to refuse refunds in certain circumstances, for example, if the user changes their mind.

What are my legal requirements for handling complaints?

As an online course creator, you are legally responsible for handling complaints about your course fairly and promptly. The ACL will apply if you sell your online courses in Australia. 

The ACL provides your users with a set of guarantees for goods and services purchased, and you cannot avoid these guarantees (even if your Terms of Use say something that contradicts them). These guarantees ensure that goods are of acceptable quality, match their description, and are fit for their disclosed purpose. At the same time, services are provided with due care and skill, are fit for a specified purpose, and are delivered within a reasonable time. 

If you fail to meet these guarantees, your users are entitled to a remedy such as a repair, replacement, or refund, and sometimes compensation for damages and loss.

Disclaimers & Liability

Do I need to have a Disclaimer for my course?

Having a Disclaimer for your online course is a good practice to limit liability and clarify student expectations. Your Disclaimer should state clearly that you cannot be responsible for how any course information is interpreted or relied upon. A well-drafted set of Terms of Use should include a Disclaimer, and you should ensure that your users agree to the Terms of Use and read the Disclaimer before starting your course.

How do I limit the liability of running an online course?

There are several strategies you can use to limit your liability when running an online course:

• Have a good set of Terms of Use.
• Have any necessary insurance, such as liability and/or professional indemnity insurance.
• Consider appropriate business structures such as a Pty Ltd Company or a trust. 
• Inform yourself of all relevant laws and regulations and comply with them. 
• Monitor your course content and user activity to ensure users comply with your Terms of Use and applicable laws or regulations. Take appropriate legal action if infringement or noncompliance is suspected.
• Consider consulting with legal, financial, or other professional advisors.

Do I need professional liability or business insurance for my online course?

Whether you need professional liability or business insurance for your online course depends on several factors, such as the nature of your business, the risks involved, and risk tolerance.

Consider the potential risks associated with your industry and course, such as claims of intellectual property infringement, breach of contract, or negligence. Professional liability insurance may be advisable if there is a significant risk of these types of claims.

In some industries and jurisdictions, you may also be required by law to have certain types of insurance, such as workers’ compensation or liability insurance.

Privacy & Personal Data

What are my obligations for protecting the personal data of my students?

Under the Privacy Act 1988 (Cth), as an online course creator, you are required to respect and protect the privacy of your users. This means you need to implement practices and systems in line with the Australian Privacy Principles (APPs).

Key obligations include only collecting personal information for lawful purposes, providing notice to users about the collection and its purpose, ensuring the data collected is relevant and up-to-date, protecting the information from unauthorised access or loss, and offering users the opportunity to access and correct their own personal information. Be aware that you also have obligations if you disclose personal information overseas or use it for direct marketing.

In many cases, if you are operating or providing services within a foreign jurisdiction or processing the personal data of residents of that jurisdiction, you may be subject to that country’s privacy laws. This is particularly true for countries with extraterritorial privacy laws like the EU’s General Data Protection Regulation (GDPR) and California’s Consumer Privacy Act (CCPA) in the United States.

Do I need a Privacy Policy?

Under the Privacy Act 1988 (Cth), there are some limited circumstances in which you may not need to have a Privacy Policy. However, our opinion is that if you are running an online business, it is always a good idea to have a Privacy Policy, whether or not you are legally required to have one. 

A good Privacy Policy helps to build trust with your users and gives them confidence that you will look after their data. It also protects you if your business evolves over time into the kind of business required by law to have a Privacy Policy. 

What are the legal implications of having students from different countries enrolled in my online course?

You may need to comply with the privacy laws and regulations in the countries where your students are located, such as by obtaining appropriate consent for collecting, using, and storing personal information.

Some foreign privacy laws, such as the GDPR in the European Union and the California CCPA in the US, can apply to Australian businesses even if the business has no presence in those jurisdictions. For example, these foreign laws can apply if your courses are available to EU or US users. 

Certificates

Can anyone create online courses and issue a certificate?

Yes, depending on the nature of the course and the industry in which you are operating, it may be possible to issue your students a certificate of completion or participation. However, many industries (such as medicine, law, finance, fitness, health, nutrition or construction) are tightly regulated and require certain degrees and/or association affiliation, so you need to know the specific rules that may apply to you. 

Do employers recognise online courses?

This varies on a case-by-case basis. It depends on various factors such as the employer’s preferences, the course itself and where it is recognised, the industry, the quality of your course and your reputation. 

What are the legal requirements for providing certificates of completion?

In Australia, the legal requirements for providing certificates of completion for an online course depend on the industry. Many industries have certification requirements both for the trainer and the trainee. If you choose to provide certificates of completion of your course, you must ensure they meet the industry requirements and accurately reflect the student’s achievements. Also, comply with relevant accreditation and certification requirements, consumer protection laws, and industry best practices.

Running an Online Course Business

What business structure should I use for my online course?

The business structure you choose for your online course will depend on several factors, including the size and complexity of your business, your personal preferences (including your risk tolerance vs your willingness to handle the administration of more complex structures), and your tax and regulatory requirements. Here are some common business structures to consider:

1. Sole Trader: A sole trader is a simple business structure owned and operated by one person. This structure provides the most flexibility and control but also exposes you to unlimited personal liability for any debts or legal issues related to the business.
2. Partnership: A partnership is similar to a sole trader but involves two or more individuals sharing ownership and management responsibilities. This structure can provide additional resources and expertise and exposes partners to shared liability for legal or financial issues.
3. Pty Ltd Company: A Pty Ltd Company is a separate legal entity providing higher personal liability protection for its owners (shareholders). This structure can provide outside investors and financing access but involves more formalities and regulatory requirements.
4. Trust: A trust is a legal relationship where a trustee (an individual or a company) holds assets for the benefit of others, known as beneficiaries. In Australia, trusts are commonly used to manage assets, protect against personal liability, and use flexible income distribution to reduce taxes. However, they involve more complexity and costs in setup and administration than sole traders or partnerships.

We have written a comprehensive feature article about How to Choose the Right Business Structure in Australia.

Are there any restrictions on advertising my online course?

Yes, there may be restrictions on advertising your online course, depending on the specific regulations and laws in your industry and location. The Australian Competition and Consumer Commission regulates advertising in Australia and can take enforcement action against businesses that don’t comply with the rules. Here are some common restrictions to consider:

• Misleading or deceptive advertising: You may not make false or misleading claims about your course, such as promising specific outcomes or results that are not achievable.
• Intellectual property infringement: You may be prohibited from using copyrighted or trademarked material in your advertising without permission from the owner.
• Endorsements and testimonials: If you use endorsements or testimonials in your advertising, you need to ensure that they are truthful and not misleading and that you have the appropriate consent from the endorsers.
• Clear and conspicuous disclosures: If you are making any disclosures in your advertising, such as about the cost or terms of your course, ensure that they are clear and conspicuous to consumers.
• ‘Recognised’ accreditation: You may not promise ‘recognised’ accreditation if no accrediting association exists or your course is not recognized by the industry body.

Should I register my online course business for GST?

Whether to register your online course business for GST depends on your business structure and annual turnover. GST registration is required for sole traders or partnerships with an annual turnover of $75,000. Companies or other organisations must register regardless of turnover.

Registering for GST can provide benefits, such as claiming input tax credits, but it also requires additional administration and reporting. Consult a tax professional or financial advisor for tailored advice based on your specific situation.

We hope you found this legal guide for online course creators helpful.

About the Author: Vanessa Emilio

Vanessa Emilio (BA Hons, LLB, ACIS, AGIA) is the Founder and CEO of Legal123.com.au and Practice Director of Legal123 Pty Ltd. Vanessa is a qualified Australian lawyer with 20+ years experience in corporate, banking and trust law. Click for full bio of Vanessa Emilio or follow on LinkedIn.

Disclaimer: We hope you found this article helpful, but please be aware that any information, comments or recommendations are general in nature, do not constitute legal advice and may not be suitable for your specific circumstances. Whilst we try our best to ensure that the information is accurate, sometimes there may be errors or new information that has yet to be included. Any decisions you take based on information on this website are made at your own risk and we cannot be held liable for any losses you suffer. Contact us directly before relying on any of this information.