Written by Aishwarya S M, pursuing Diploma in Intellectual Property, Media and Entertainment Laws as part of her coursework. Aishwarya is a 5th year law student at University Law College, Bangalore.

This article shall explain the point of difference while drafting the terms and conditions of an e-learning website like Udemy or Coursera with that of an entertainment website like Netflix, Hotstar and Amazon prime which act as major video streaming service providers in various countries.

Differences In Terms And Conditions Of An E-learning Website From That Of Entertainment Website

The primary difference between both the website is that they both provide services upon different subject-matter, that is an e-learning website like Udemy or Coursera provides its users with a platform for online learning while that of an entertainment website like Netflix or Hotstar or amazon-prime which are based on the subject of entertaining its viewers by providing access to exclusive videos (e.g. movies, TV shows, etc.) that stream online. The similarity in case of both is that both these websites require a user subscription by the person who intends to enjoy these services. Now let us understand the various clauses involved in these websites and their differences:

Definition Clause

The definition clause helps in understanding the meaning of certain terms involved in that agreement from the point of view of the reader. This provides clarity in case of any confusion or enables a better understanding of the terms of use.

Upon observing the terms and conditions of the above-stated websites, it can be seen that apart from ‘Hotstar’ none of the other websites provide in terms of use with a definition clause. The website of ‘Hotstar’ has tried to explain the terms like Registered User, Subscriber, Partner, Application, Device, etc. Example: clause 2(n) of the definition clause explains the meaning of the term Registered User as follows: “Registered User(s)” means a person who registers on the Hotstar App through an e-mail ID of Facebook ID to access and/or play the Game Play. The definition clause explains the meaning of the terms and should, therefore, be included while drafting the terms and conditions for any website.

Accounts/Membership

The rules in relation to the User account of a subscriber have been provided under various headings by these websites like Subscription Services, Membership Cancellation, Who May Use our Services, Accounts, Membership, etc. All these clauses signify the importance, objective or the purpose for which the particular clause is drafted.

This can be better understood by pointing out the difference in the clauses:

Subscription/accounts

Hotstar

Here, it mainly focuses on explaining who can avail the services and explains as to what personal information has to be provided to subscribe. That is, although it permits user free access to certain content, some of the Content made available on the Site can be availed only by registered Users who have registered under a subscription model. In such cases, it explains as to what personal information has to be provided to become a subscribed user. It also highlights on the ‘subscription fee’ upon the payment of which the services are rendered.

Amazon Prime

Unlike Hotstar no person can avail the benefits of any content provided by prime without Subscription. And such a subscription is offered by Amazon for different terms and tenures. Such a classification is solely based on the time period up to which a person intends to use the services.  The mode of payment is also specified by them in this regard.

Netflix

The membership in case of Netflix is again a charged one after the completion of 1 month free services (with a certain limitation on usage) offered to the subscriber. Upon the completion of which if the subscriber further intends to continue with their services then he shall have to make payment through any of the prescribed mode specified by them on monthly basis.

Udemy

‘Accounts’ clause in Udemy speaks about the enrollment for any particular course provided by them. It focuses on the aspect of liability for any activity from any particular account, as per which the user who has registered and taken up the course, and under whose name the login details exists shall be liable for any activity carried out from that particular account.  The user in such cases is solely responsible for the password protected account managed by him.

From the above explanation, it can be observed that a user does not get a choice to decide if he wishes to avail the services of a particular website as long as he does not subscribe and make payment for it. This can to some extent also limit the interested users. Therefore, while drafting the clause relating to membership one has to specify about what benefit the membership has to offer to its users. Also, in the case of free services rendered for a certain period or in some cases, it should ensure to state clearly the limitations or to the extent to which such services can be used.

Renewability

The renewability in case of Amazon is in user friendly format that is, the user has two methods to decide on payment mode: (i) Auto Renewal (ii) Recurring Mode, as per which if a person intends to continue with the services then his payment will be authorized to have been permitted by him to deducted made automatically, whereas in case of the recurring mode the person can decide to terminate the availing the service with the help of recurring mode wherein the user has to authorize the service provider to collect the membership fee for the next membership terms. Netflix does not provide with any such option to its user that is unless subscriber cancels the membership before the monthly billing date, the subscriber authorizes Netflix to charge the next month’s membership fee to respective Payment Method of such subscriber.

There is no question of renewability in case of e-learning website because the membership is provided for lifetime upon subscription. The subscriber, therefore, gets access to the contents of the services opted by him for the lifetime, which makes it more user-convenient.

Age criteria

It can be observed that the E-Learning websites provide for a particular age criterion that decides if the user is eligible to hold an account or enroll for that particular course. Whereas, in case of entertainment websites no such age criteria has been specified.

Example:  The age criterion upon the completion of which the user is entitled to create an account in case of Udemy is 18 years. That is the website clearly specifies that the minimum age required for enrolling into a course provided by them is 18 years. In case of a younger person than the required age, he cannot directly set up the account but encourages such a person to invite a parent or guardian to open an account and help to enroll in courses that he/she wishes for. Similarly, the age criterion in case of Coursera is 13 years. Any use or access by anyone under the age of 13 is prohibited, and certain courses may have additional requirements and/or restrictions.

Legality in case of misuse

If the service providers discover that the account is created or subscribed by a younger person than the required age for consent to use online services (for example, 13 in the US), the account will be terminated by them. Therefore, under the Agreement, verification of identity has to be completed before getting authorization to submit a course for publication on Udemy.

Limited access

The E-Learning websites can be accessed only by 1 user that is any person who registered for it while that of an Entertainment website provides multiple user access. This is because the later is in form of a subscription plan that can be subscribed by a group of users together like in case of a family.

The Services And License

E-learning websites grants its users a limited, non-exclusive, non-transferable license to access and view the courses and associated content for which payment of all required fees is made, solely for personal, non- commercial, educational purposes through the Services, in accordance with the Terms and any conditions or restrictions associated with a particular courses or feature of Services. All other uses are expressly prohibited under it.

Also, it does not permit its user the right to reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, sublicense, or otherwise transfer or use any course unless an explicit permission to do so in a written agreement signed by the website’s authorized representative is provided.

Entertainment websites do not usually require this clause since it has a sub-license to stream a particular video and is not the true owner and hence are not explicitly mentioned. However, such a clause persists in case of its own videos which are not streamed anywhere else and of which it acts as the true owner. Example, Hotstar has a particular clause which reads as follows: ‘You are given a limited, non-exclusive, non-transferable, non-sub-licensable, revocable permission to view the Site and avail the Service during the subsistence of Your Account with Novi for the territory of the world or limited territories as applicable in respect of specified Content and as set forth in these Terms and Conditions and no right, title or interest in any Content will be deemed transferred to You.  And, You agree not to either directly or through the use of any device, software, internet site, web-based service, or other means copy, download, capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content or create any work or material that is derived from or based on the Content. This prohibition applies regardless of whether such derivative works or materials are sold, bartered, or given away.’

Accessibility

It specifies the time period up to which the subscription can be availed. This is usually based on either the payment made or the type of service for which such a subscription is made.

E-learning websites mentioned above provide access to the course contents for the lifetime and only for personal use and not for any other purpose. Whereas, the entertainment websites provide access to the account only for a year or so, based on the Subscription Plan. However, such a subscription can be renewed from time to time by making payment or can change the subscription plan as and when required.

Charges And Payment

E-learning websites

Under the e-learning websites the price applicable to a course will be the price at the time at which the user completes the purchase of the course. This means the prices for the course can keep varying as and when the need arises.

Also, the e-learning websites do not enable its users to see the pricing in other currencies that are upon logging into an account, the listed currency is based on the location where the account was created. If not a pre-existing user, the price currency is based on the country where the person is located.

The taxes shall be made applicable in accordance with the tax system of the country the user is located at. This is because the service providers are responsible for collecting and remitting that tax to the proper tax authorities. Therefore, the price shown includes taxes.

Authorized payment modes are prescribed to make payments. If the payment method fails and the user still gets access to the course enrolling in, an implied obligation lies on the user to pay the service provider the corresponding fees within thirty (30) days of notification provided in relation to the same. In case of non-payment, the service provider can disable access to any course for which the payment is not made.

Entertainment websites

The subscription plans in case of an entertainment also vary from time to time, but such price changes are not made instantly applicable unlike an e-learning website, here the changed prices will be notified 30 days prior, only after the completion of which the price changes shall be made applicable.

These websites most often specify the payment mode and are not user-friendly like that of an e-learning website, wherein if the payment is not successful the user is given a time period of 30 days to make payment after being notified about the same. The entertainment websites do not provide any such time period for access and prescribe its users the mode in which the payment has to be made when the first attempt of payment is unsuccessful.

The payment for services rendered on an entertainment website also includes foreign transaction fees or other fees relating to the processing of the Payment Method.

Refund Policy

In case of an e-learning website if the user is not satisfied with the service provided he/she can get a 30-day refund or credit for course purchases. Refunds in such cases are not available if there is any violation of the terms of the agreement. But such a policy is not available in case of an entertainment website wherein the payments made through any mode are non-refundable and no credits or such benefits are provided by them.

Limitations Of Liability

Extent of liability

In case of both e-learning website and entertainment website, the extent of liability is usually deemed as follows: ‘to the extent permitted by law, we (and our group companies, suppliers, partners, and agents) will not be liable for any indirect, incidental, punitive, or consequential damages (including loss of data, revenue, profits, or business opportunities, or personal injury or death), whether arising in contract, warranty, tort, product liability, or otherwise, and even if we’ve been advised of the possibility of damages in advance.’

Compensation payable

The liability fixed by each website or course as per monetary terms vary.

Example:

  1.    In the case of Udemy, it is limited to the greater of one hundred dollars ($100) or the amount paid in the twelve (12) months before the event giving rise to the claims.
  2.    In the case of Hotstar, it reads as follows: ‘liability for the services or the content or material thereof on the site shall be limited to INR 1000. Where the laws do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such jurisdictions, liability shall be limited to the extent permitted by law.’

Governing Law

The governing law in case of each website mainly in case of disputes is usually based on the location from which the service is rendered and is not based on the country in which the user resides.

Example:

Udemy

‘These Terms are governed by the laws of the State of California, the USA without reference to its choice or conflicts of law principles. Where the “Dispute Resolution” section below does not apply, you and we consent to the exclusive jurisdiction and venue of federal and state courts in San Francisco, California, USA.’

Netflix

These Terms of Use shall be governed by and construed in accordance with the laws of the Netherlands and the forum to decide any proceeding brought by You(subscriber) shall be exclusively before the courts at Mumbai, India.’

This provision avoids any form of uncertainty as to the applicability of the laws in case of disputes and also provides the courts with the jurisdiction to settle matters.

Exclusive Clauses

Under E-learning Websites (Common In Both Coursera & Udemy)

Honor Code

The code of conduct in case of Coursera reads as follows:

All students participating in the class must agree to abide by the following code of conduct:

  • I will register for only one account.
  • My answers to homework, quizzes, exams, projects, and other assignments will be my own work (except for assignments that explicitly permit collaboration).
  • I will not make solutions to homework, quizzes, exams, projects, and other assignments available to anyone else (except to the extent an assignment explicitly permits sharing solutions). This includes both solutions written by me, as well as any solutions provided by the course staff or others.
  • I will not engage in any other activities that will dishonestly improve my results or dishonestly improve or hurt the results of others.

This is a unique feature of an e-learning website wherein the service provides certain behavioral conduct for a student or the user of online education. Such rule of conduct is a specific clause found in case of e-learning website to govern the actions of its user. This is not mandatory in case of an entertainment website since it does not involve any modules, homework or tests conducted as a part of it. Such a clause brings in a sense of commitment in the minds of students and enhances the learning progress.

Rights To Content Of User

This is another exclusive clause of an e-learning website which may not be found in other entertainment websites, as per this clause the e-learning websites will have right over the content posted by a user in relation to the course subscribed by him. This clause reserves the right with the service provider over any post submitted by its user while in relation to or while availing the benefits of the course or as a part of it, so that they can share the content to anyone through any media, including promoting it via advertising on other websites.

Intellectual Property Rights

The Intellectual property right in case of an e-learning website is a mandatory clause. This is because the violation of it can invite damages.

Example, this clause has been included under the e-learning website of Coursera as follows: “Coursera respects the intellectual property rights of our partner institutions, instructors, and other third parties and expects our users to do the same when using the Services. We reserve the right to suspend, disable, or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights, trademarks, or other intellectual property rights of others.

If you believe in good faith that materials on the Services infringe your copyright, the DCMA provides that you (or your agent) may send us a notice requesting that the material be removed or access to it blocked. We suggest that you consult your legal advisor before filing a notice. Also, be aware that there can be penalties for false claims under the DMCA.

Coursera also respects the trademark rights of others. Accounts with any other content that misleads others or violates another’s trademark may be updated, suspended, disabled, or terminated by Coursera in its sole discretion. If you are concerned that someone may be using your trademark in an infringing way on our Services, please email us at [email protected], and we will review your complaint. If we deem appropriate, we may remove the offending content, warn the individual who posted the content, and/or temporarily or permanently suspend or disable the individual’s account.”

Such a protection gives a monopoly rights over the contents with the authorized service provider, by doing so any violation at any given point of time in relation to these rights can be claimed and the damages will be awarded subsequently.

Under Entertainment Websites (Common To Hotstar, Netflix & Amazon Prime)

Free Trials

The concept of a free trial is one of the unique feature or clause of an entertainment website to attract users by providing access for a limited period of time freely after providing certain details or fulfillment of eligibility criteria. Example, Clause 2 of the Netflix reads as follows: ‘2.1. Your Netflix membership may start with a free trial. The free trial period of your membership lasts for one month, or as otherwise specified during sign-up and is intended to allow new members and certain former members to try the service.’

Such a free trial or service is provided at the sole discretion of the service provider also and the service provider holds the right to limit the eligibility or duration to prevent free trial abuse. They also have the right to revoke the free trial or put the account on hold in the event of non-fulfillment of eligibility criteria. But since e-learning websites are usually employed for educational purposes no such free trails are granted and the services run purely on the basis of payment of prescribed fees.

Conclusion

These are the few important points of differences while drafting the terms and conditions of an e-learning website or that of an entertainment website. Additional clauses like severability, disclaimer, assignation, issue and complaints, indemnification etc., based on common terms/grounds are provided by both the e-learning and entertainment websites.  The advantages of e-learning websites like Udemy and Coursera in the long run ensures to it’s students long-term benefits with its features like lifetime access also it permits fair use in the form of personal use of the material provided by them which is again beneficial for any learner who intends to continue with it further in his career. The terms and conditions of these websites are user-friendly that is it more student-friendly and ensures a maximum advantage in his favor. In case of an entertainment website like amazon prime, Hotstar or Netflix although they are not very user oriented and the focus lies on monetizing or making profits. It also has its own perks like a free trial period and such other provisions which make the investment or subscription worth the price paid.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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