Online learning has long ceased to be a temporary alternative to regular classes. Today, foreign languages, marketing, programming, design, professional skills, and dozens of other areas are taught via the Internet.
Launching such a course is technically simple: prepare a program, record materials, create a website or page for sale, and provide access to students.
But from a legal point of view, more questions arise. Do you need a license? How to arrange payment and relations with students? Is a public offer enough? How to establish refund rules and protect educational materials from copying?
Let’s consider the main points.
Is an online course an educational activity?
The Law of Ukraine “On Education” defines educational activity as the activity of an educational entity aimed at organizing, ensuring and implementing the educational process in formal and/or informal education.
An educational service is a set of actions of an educational entity, defined by legislation, an educational program and/or a contract, which have a certain cost and are aimed at achieving the expected learning outcomes by the student.
Therefore, conducting online training can be an educational activity. At the same time, the mere fact that a person teaches others for a fee does not mean that it is necessary to obtain an educational license for this.
Is a license required for online courses?
The need for licensing depends not on whether the training is conducted online or offline, and not only on the chosen KVED, but on the content and type of educational activity.
The Law of Ukraine “On Education” provides for the licensing of educational activities in cases established by law. The relevant requirements are detailed in special educational legislation and the Licensing Conditions for the Conduct of Educational Activities, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 1187.
Therefore, ordinary commercial courses, trainings, master classes and other informal learning programs that do not involve the conduct of a type of educational activity for which mandatory licensing is established by law can be conducted without obtaining an educational license.
For example, selling an author’s course on marketing, design or the use of software does not in itself mean the need to obtain an educational license.
At the same time, specialized programs that are positioned as professional education, advanced training or provide for the issuance of documents on the relevant educational or professional qualifications need to be analyzed separately.
Individual entrepreneur or legal entity?
If online courses are sold systematically for the purpose of generating income, the activity must properly formalize.
In practice, an individual entrepreneur is often used for small educational projects, and a legal entity is used for larger platforms or businesses with several founders.
When registering, it is necessary to correctly determine the types of economic activity. For many non-formal education courses, KVED 85.59 “Other types of education, n.e.c.” can be used.
However, it is important to understand: the presence of this KVED does not automatically mean that the activity does not require licensing. The KVED describes the type of economic activity, while the need for a license is determined by special legislation.
How to formalize relations with students?
It is usually not necessary to conclude a separate paper contract with each buyer of an online course.
For mass sales of courses, a convenient mechanism is to place a contract on the website, the terms of which the user accepts when placing an order.
Depending on the content and sales model, such a contract may have the features of a public contract and an accession contract.
At the same time, the procedure for concluding a contract through the website is also regulated by the Law of Ukraine “On Electronic Commerce”.
An electronic contract is concluded by making an offer to conclude it – an offer – and accepting such an offer by the other party.
Acceptance can be carried out by filling out an electronic form or performing another action that is previously determined by the parties as acceptance of the terms of the contract.
Therefore, the model “offer on the website – order placement – confirmation of agreement with the terms – payment” can create full-fledged contractual relations without signing a paper contract.
At the same time, the user must have a real opportunity to familiarize himself with the terms of the contract before accepting them.
What should be provided for in the contract?
The contract must correspond to the actual course model.
First of all, it is necessary to determine what exactly the student receives: participation in live online classes, access to recorded video materials, checking homework, teacher consultations, access to a closed community or a set of these services.
It is equally important to determine the duration of the training and the period of access to the materials. If access is provided, for example, for three or six months, this should be explicitly stated at the time of payment.
It is worth separately regulating the price and payment procedure, conditions for cancellation of participation, refunds, transfer of classes, communication procedure, technical requirements, responsibility of the parties and conditions for obtaining a certificate.
The rules may differ for different course models. For example, the legal nature of live online learning and providing access to pre-created digital content is not always the same.
Can the learning outcome be guaranteed?
In advertising for online courses, one can often see promises of a specific outcome: mastering a profession, guaranteed income, or employment.
From a legal point of view, such formulations should be treated with caution.
If the provider sells access to a training program, its obligation is primarily to properly provide the contractually defined set of services: conducting classes, providing materials, checking assignments, consulting, etc.
The personal result of the student may also depend on his abilities, the time he devotes to learning, completing assignments, and other circumstances beyond the control of the provider.
Therefore, the contract should clearly distinguish the proper provision of services from the individual learning outcome.
At the same time, it does not allow the performer to advertise a guaranteed result that cannot actually be provided. Information about the course must correspond to its actual content and conditions.
Refunds and consumer rights
If a course is purchased by an individual for personal needs, such relations are subject to consumer protection legislation.
In addition, depending on the format of the product, special rules may apply to digital content and digital services.
Before concluding a contract, the buyer must obtain the necessary information about the performer, the content of the service, its cost and the main terms of purchase.
That is why the universal phrase “money is not refundable after payment” is not sufficient legal protection.
The procedure for canceling the contract and refunding funds must be formed taking into account the specific model of the course: live classes, recorded content, individual consultations or a combination of them.
Personal data of students
When registering for a course, the student usually provides his name, phone number, email address and other personal data.
Their processing must be carried out in accordance with the Law of Ukraine “On the Protection of Personal Data”.
The course organizer should determine what data is collected, for what purpose it is used, to whom it can be transferred and for how long it is stored.
If the data is used not only for the performance of the contract, but also, for example, for advertising or information mailings, this must also be properly regulated.
How to protect course materials?
Video lessons, texts, presentations, graphics, methodological materials, tests and other results of creative activity can be protected by copyright.
According to the Law of Ukraine “On Copyright and Related Rights”, copyright arises as a result of the fact of creating the corresponding work. State registration is not a prerequisite for the emergence of copyright.
At the same time, copyright protects the specific form of expression of a work, and not the abstract idea, method or concept of learning as such.
Therefore, the protection of an online course should not be limited to a reference to copyright.
The contract with the student should stipulate that access to the materials is provided for personal use, and prohibit their illegal copying, distribution, resale, transfer of access to third parties or other use in violation of intellectual property rights.
If guest teachers, designers, photographers, videographers or other contractors work on the course, the issue of property rights to the materials created by them should be separately regulated in the contracts.
Certificate after completing the course
The organizer of informal learning can confirm the fact of completing their own course with an appropriate certificate.
However, such a certificate should not be positioned as a document of education or confirmation of a state-recognized educational or professional qualification, unless there are grounds for this provided for by law.
Therefore, even before launching the program, it is necessary to determine what exactly the certificate will confirm and how this information will be presented to students.
Conclusions
To launch an online course, it is not enough to record training materials and set up payment acceptance.
Even before the first sale, it is worth determining whether a specific activity requires licensing, properly register a business entity, prepare a contract with students, set up a mechanism for its electronic conclusion, determine the rules for payment and refunds, regulate the processing of personal data and protect the rights to training materials.
At the same time, the legal model must correspond to the actual format of the course. Selling access to a library of recorded lectures, live training with a teacher and a full-fledged educational program are different models for which both contractual terms and legal risks will differ.
Therefore, it is better to think over the legal registration of an online course even before sales start. This is much easier than changing the rules of operation after a dispute with a student or illegal distribution of course materials.
