An examination of the growing regulatory and legal exposure created by the unauthorised use of third-party training and assessment materials, the practice of auditors verifying proof of purchase and licensing, and the compliance, intellectual property, and governance implications for registered training organisations
The Unauthorised Distribution of Training and Assessment Resources
Reports from across the vocational education and training sector indicate that the unauthorised distribution and use of third-party training and assessment resources remains a persistent and, by multiple accounts, widespread problem. Industry commentary confirms that instances have been identified in which individuals and entities have sold or distributed training and assessment materials developed by established resource publishers without the authorisation of the copyright holder. In some cases, these materials have been repackaged, rebranded, or presented as original work by the party selling them. In other cases, the materials have been distributed in their original form but without any licence or purchase arrangement with the publisher.
This practice is not confined to a single segment of the market. Reports indicate that it occurs across a range of industry areas and involves a variety of actors, including consultants, advisory firms, and intermediaries who supply training and assessment materials to registered training organisations as part of broader service packages. The scale of the problem is difficult to quantify precisely, but the consistency of reports from resource publishers and advisory professionals suggests that it represents a material and ongoing issue within the sector.
The Legal Framework: Copyright Protection of Training and Assessment Resources
Training and assessment resources, including learner guides, assessment tools, assessment instruments, marking guides, mapping documents, and associated materials, are original literary works within the meaning of the Copyright Act 1968 (Cth). Copyright in such works vests automatically in the author or, where the works are created in the course of employment or under certain contractual arrangements, in the employer or commissioning party. The Copyright Act provides the copyright owner with the exclusive right to reproduce the work, to publish the work, to communicate the work to the public, and to make an adaptation of the work. Any person who exercises any of these exclusive rights without the licence or authorisation of the copyright owner infringes copyright.
Source: Copyright Act 1968 (Cth), Parts III and IV — available via the Federal Register of Legislation.
The Copyright Act also provides for both civil and criminal consequences for copyright infringement. Civil remedies include injunctions, damages or an account of profits, and additional damages in cases of flagrant infringement. Criminal penalties apply to commercial-scale infringement, including the sale or distribution of infringing copies for the purpose of trade. The application of these provisions to the unauthorised distribution of training and assessment resources is direct: the sale of copied or repackaged materials without the authorisation of the copyright owner constitutes infringement, regardless of whether the materials are sold in their original form or in a modified version.
Source: Copyright Act 1968 (Cth), Parts IV and V — available via the Federal Register of Legislation.
The fact that training and assessment resources are functional documents, designed for use in regulated training delivery, does not diminish their copyright protection. Copyright protects the expression of the work — the specific text, structure, organisation, and presentation of the material — regardless of whether the work has a practical or educational purpose. A training and assessment resource that has been independently developed by a publisher is entitled to the same copyright protection as any other original literary work.
The Practice of Auditor Verification of Licensing
A significant development in the regulatory approach to this issue is the practice of auditors seeking confirmation of purchase and licensing arrangements for third-party training and assessment materials during regulatory audit processes. Industry reports confirm that auditors have been requesting evidence that the registered training organisation holds a valid licence or purchase agreement for the training and assessment resources it is using. This verification extends to materials developed by external resource publishers and supplied to the provider either directly or through intermediaries such as consultants or advisory firms.
The rationale for this audit practice is grounded in the regulatory standards framework. The standards governing registered training organisations require providers to ensure that their training and assessment practices are supported by appropriate resources. Where those resources are developed by a third party, the provider’s ability to demonstrate that it has a lawful right to use the materials is a relevant consideration in assessing compliance. A provider that cannot demonstrate a valid licence or purchase arrangement for the materials it is using is unable to confirm that its access to those materials is secure, ongoing, and lawful — all of which are relevant to the sustainability and integrity of the training and assessment practices that rely on them.
Source: Standards for Registered Training Organisations; ASQA regulatory audit practice.
The audit verification of licensing has had a demonstrable impact on the detection of unlicensed resource use. Where a provider is asked to produce proof of purchase or a licence agreement and is unable to do so, the audit process creates a documented record of the gap. This record may form part of the audit findings and may contribute to broader compliance concerns about the provider’s governance, due diligence, and resource management practices. The practice also creates a deterrent effect, as providers become aware that licensing verification is a component of the audit process and take steps to ensure that their resource procurement practices are compliant.
How Unlicensed Resources Enter the Provider Market
The mechanisms through which unlicensed training and assessment resources enter the provider market are varied, but industry reports identify several common pathways. The first and most frequently reported pathway involves consultants or advisory firms that supply training and assessment materials to registered training organisations as part of a compliance or setup service package. In some cases, the materials supplied are original works developed by the consultant or firm. In other cases, however, the materials are copied, adapted, or repackaged from resources developed by established publishers, without the authorisation or knowledge of the original copyright holder.
The second pathway involves the informal sharing or transfer of materials between registered training organisations. When a provider acquires licensed materials from a publisher, the licence typically restricts the use of those materials to the licensed entity. Where materials are shared with, transferred to, or used by another provider without the authorisation of the publisher, the second provider’s use is unlicensed, regardless of whether the original acquisition was legitimate. This pathway is particularly common where providers share common ownership, management personnel, or consulting arrangements, creating an informal expectation that materials purchased by one entity may be used across the group.
The third pathway involves the acquisition of materials from online marketplaces, informal networks, or entities that present themselves as authorised distributors but do not, in fact, hold distribution rights from the copyright owner. The proliferation of digital distribution channels has made it easier for unlicensed copies of training and assessment materials to circulate, and the difficulty of verifying the provenance and licensing status of materials obtained through informal channels creates a particular risk for providers that do not conduct thorough due diligence on their resource procurement.
The Compliance Dimension: Resource Integrity and Training Quality
The use of unlicensed training and assessment resources is not merely an intellectual property issue. It has direct implications for the quality and integrity of the training and assessment practices that the resources support. Training and assessment materials developed by established publishers are typically subject to rigorous development processes, including alignment with training package requirements, mapping to units of competency, assessment validation, and ongoing review and updating. These development processes are designed to ensure that the materials meet the standards required by the regulatory framework and that they produce reliable assessment outcomes.
When materials are copied, repackaged, or distributed without authorisation, the integrity of these development processes cannot be assured. Materials that have been modified by an unauthorised party may contain errors, omissions, or alterations that compromise their alignment with the applicable training package requirements. Materials that have been separated from their original publisher’s update and quality assurance processes may become outdated as training packages are reviewed and updated, leaving the provider relying on materials that no longer reflect the current requirements. In either case, the use of such materials creates a risk to the quality and validity of the training and assessment outcomes, which is a matter of direct regulatory concern.
The regulatory standards require registered training organisations to ensure that assessment practices are valid, reliable, flexible, and fair, and that training and assessment are delivered by persons with appropriate competencies and using appropriate resources. Where the resources used in training and assessment have been obtained without authorisation and without access to the publisher’s quality assurance and update processes, the provider’s ability to demonstrate compliance with these requirements may be compromised. The licensing question is therefore not peripheral to the compliance question. It is directly connected to the integrity of the evidence that the provider relies upon to demonstrate that its training and assessment practices meet the applicable standards.
The Governance Dimension: Due Diligence in Resource Procurement
The use of unlicensed resources also raises governance questions for registered training organisations. The regulatory framework expects providers to maintain governance arrangements that support compliance with the applicable standards, including governance over the procurement and management of training and assessment resources. Where a provider acquires resources without verifying the licensing status, provenance, and authorisation chain of those materials, the procurement decision itself may reflect a governance deficiency.
Effective governance in resource procurement involves several elements. The first is provenance verification: confirming that the materials have been sourced from the copyright owner or from an entity that holds a valid distribution or licensing arrangement with the copyright owner. The second is licence compliance: understanding the terms of the licence under which the materials are supplied, including any restrictions on copying, modification, sharing, or sublicensing. The third is ongoing access assurance: confirming that the licence provides for ongoing access to the materials, including access to updates and revisions as training packages and standards change over time.
Providers that rely on consultants or advisory firms to supply training and assessment materials should not assume that the materials supplied are lawfully licensed. The responsibility for ensuring that the provider holds valid licensing rights rests with the provider, not with the consultant or supplier. Where materials are supplied as part of a consulting engagement, the provider should request and retain documentary evidence of the licensing arrangement, including confirmation that the consultant or supplier holds the rights to distribute the materials and that the licence extends to the provider’s use for the purposes of training delivery and assessment.
Consequences for Providers Found Using Unlicensed Materials
A registered training organisation found to be using unlicensed training and assessment materials faces consequences across multiple dimensions. The first dimension is regulatory. Where an audit identifies that the provider is using materials for which it cannot demonstrate a valid licence, the audit findings may include concerns about the provider’s resource management, governance, and compliance with the standards relating to training and assessment practices. These findings may contribute to broader adverse outcomes in the audit, including conditions on registration, directions to rectify, or more serious regulatory consequences, depending on the scope and severity of the non-compliance.
The second dimension is legal. The copyright owner of the unlicensed materials may pursue civil remedies against the provider for copyright infringement, including damages and injunctive relief. The provider’s use of the materials without authorisation constitutes infringement regardless of whether the provider was aware that the materials were unlicensed. The Copyright Act 1968 (Cth) does not require the infringer to have knowledge of the infringement for liability to arise in civil proceedings, although knowledge and intent may be relevant to the quantum of damages and the availability of additional damages.
Source: Copyright Act 1968 (Cth), Parts IV and V — available via the Federal Register of Legislation.
The third dimension is operational. Where a provider is required to cease using unlicensed materials, the immediate operational consequence is a gap in the provider’s training and assessment resource base. Replacing the materials at short notice — either by acquiring a legitimate licence from the original publisher or by sourcing alternative resources — can be costly and time-consuming, particularly where the materials relate to a large number of units of competency or training products. During the period in which the provider does not have access to compliant resources, training delivery and assessment may be disrupted, with flow-on consequences for enrolled students and for the provider’s compliance with its obligations to those students.
Consequences for Entities That Distribute Unlicensed Materials
The legal and reputational consequences for individuals and entities that distribute training and assessment materials without authorisation are equally significant. The unauthorised distribution of copyrighted materials constitutes copyright infringement under the Copyright Act 1968 (Cth), and the copyright owner may pursue civil remedies including injunctions, damages, an account of profits, and costs. Where the distribution is conducted on a commercial basis, including where materials are sold as part of a consulting or advisory service package, the conduct may also attract criminal penalties under the provisions of the Copyright Act that address commercial-scale infringement.
Source: Copyright Act 1968 (Cth), Parts IV and V — available via the Federal Register of Legislation.
Beyond the legal consequences, the distribution of unlicensed materials carries significant reputational risk for the individuals and entities involved. The vocational education and training sector is a specialised market in which reputation and trust are central to commercial viability. Consultants and advisory firms that are identified as having distributed unlicensed materials risk loss of credibility with current and prospective clients, exclusion from professional networks, and damage to their standing in the sector. Where the conduct also involves the misrepresentation of materials as original work — for example, by rebranding or repackaging materials developed by another publisher — the reputational consequences are compounded by questions about the integrity and honesty of the entity’s broader business practices.
The fit and proper person framework, discussed elsewhere in this edition, adds a further dimension. Where an individual who has been involved in the distribution of unlicensed materials is also a person who falls within the scope of fit and proper person assessment — whether as a director, officer, high managerial agent, or consultant who participates in the management of a registered training organisation — the conduct may become relevant to the fit and proper person assessment. The regulator’s published guidance identifies compliance with law as one of the matters that may be considered in a fit and proper person assessment, and copyright infringement is a matter of legal non-compliance.
Source: National Vocational Education and Training Regulator Act 2011 (Federal Register of Legislation); ASQA, practice guide on fit and proper person requirements (asqa.gov.au).
Practical Steps for Registered Training Organisations
In light of the regulatory, legal, and operational risks associated with unlicensed resource use, registered training organisations should implement structured processes for verifying the licensing status of all third-party training and assessment materials in use across their scope of registration. This verification should be conducted as a standing governance function, not as a one-time exercise, and should cover materials acquired from all sources, including direct purchases from publishers, materials supplied by consultants or advisory firms, and materials obtained through informal channels or prior arrangements.
The first step is a comprehensive audit of the provider’s current resource inventory, identifying all third-party materials in use and the source from which each set of materials was obtained. For each set of materials, the provider should confirm that a valid licence or purchase agreement exists, that the licence is current, and that the terms of the licence authorise the provider’s use of the materials for the purposes of training delivery and assessment. Where a licence cannot be confirmed, the provider should take immediate steps to either acquire a valid licence from the copyright owner or replace the materials with lawfully licensed alternatives.
The second step is the establishment of procurement controls that require licensing verification as a condition of resource acquisition. These controls should apply to all channels through which materials enter the provider’s resource base, including direct purchases, consultant-supplied materials, and transfers from related entities. The controls should require documentary evidence of the licensing arrangement to be obtained and retained at the point of acquisition, and should include a requirement for periodic review to confirm that licences remain current and that the terms of use continue to be observed.
The third step is the inclusion of licensing verification as a component of the provider’s internal audit and quality assurance processes. Just as the national regulator’s auditors now verify licensing during regulatory audit processes, providers should proactively verify their own licensing position on a regular basis. Identifying and resolving licensing gaps before they are discovered in a regulatory audit is materially preferable to addressing the issue under the time pressure and adverse conditions of an audit finding.
Conclusion: Licensing Compliance as a Governance and Risk Management Priority
The unauthorised distribution and use of training and assessment resources in the vocational education and training sector is a problem with regulatory, legal, and operational dimensions. The practice of auditors verifying proof of purchase and licensing during regulatory audits has brought the issue into sharper focus, and registered training organisations can no longer assume that the provenance and licensing status of their materials will not be examined. The consequences of being found in possession of unlicensed materials extend beyond copyright liability to include regulatory audit findings, governance concerns, and potential implications for the fit and proper person standing of associated individuals.
For registered training organisations, the priority is clear: licensing compliance for training and assessment resources should be treated as a governance and risk management function of equivalent importance to any other dimension of regulatory compliance. The investment in legitimate, licensed resources — and in the governance processes that ensure licensing status is verified and maintained — is an investment in the integrity, sustainability, and regulatory defensibility of the provider’s training and assessment practices.
Resource publishers and copyright owners also have a role in addressing the problem. The enforcement of intellectual property rights through the mechanisms available under the Copyright Act 1968 (Cth), combined with proactive engagement with the regulatory framework to support the detection of unlicensed use, contributes to a market environment in which the development and maintenance of high-quality training and assessment resources is commercially sustainable. The integrity of the resource market and the integrity of the training and assessment system are, in this respect, mutually dependent.
