Not quite. The content put out by the likes of Abel Mutua and co. falls under the category of audio-visual works. An audio-visual work is media that contains both sound(audio) and pictorial/video(visual) components. According to the Films and Stage Plays Act (told you this law would come in handy) audio-visual works are included in the broader definition of the term film. And, as per Section 4 of the Act, no one is allowed to make films in the country for public consumption without a filming licence.
So, who issues these filming licences you ask? That mandate belongs to the Kenya Film Classification Board through authorized licensing officers. However, (insert Ian Mbugua’s voice), there are a couple of things to note about obtaining a filming licence. Most notable is that the licences are not blanket permits issued one-off to filmmakers or which operate for a specific period. Every film warrants a new licence which application is made by submitting a full description of the scenes and the script. If any of these is in a language other than English, then a translation must be provided. The licensing officer will examine the requested documents and use his discretion (fancy word for wisdom) to issue or refuse to issue a licence. He can also demand that certain conditions be met before issuance of the licence. Creative freedoms are almost non-existent when it comes to these licences because filmmakers are not allowed to make any alterations to the films without the prior consent of the licensing officer.
A strict reading and interpretation of the Films and Stage Plays Act shows that KFCB was well within its mandate to issue the letters. This strict adherence to the literal words as used in any law or regulation is referred to as keeping to the letter of the law. Consequently, and in keeping with the letter of the law, the content creators were required to obtain filming licences before making and distributing their content on the various platforms.
The letters issued by KFCB only tell one side of the story; that of the licensing authority. The recipients of the letters also told their side by posting them on social media and the revocation by KFCB shows that their story was more compelling. Context is important and none more so than the digital age we live in. The advent of over-the-top (OTT) and social media platforms has drastically reduced mainstream film production and the arduous processes that come with it. Audio-visual works are shot on smartphones and go-pro cameras and very quickly uploaded on the World Wide Web.
Demanding filmmakers to obtain licences for every video uploaded on YouTube or TikTok sounds borderline impossible. Content creation has become a source of livelihood for many. Demanding compliance with the strictures of the Films and Stage Plays Act seems retrogressive in a country where so many youths are struggling with unemployment. The demands by KFCB seem even more punitive when platforms such as YouTube, TikTok and Facebook Watch have their own community/user guidelines on the content that can be uploaded and shared. These guidelines are usually backed by local laws and tend to vary from country to country. It would therefore seem that KFCB need to adopt a more lax approach to the implementation of the law and consider the drafters’ intention (spirit of the law).
For more insights on media law, please contact Wahome Wilson at wahome@gwrifa.com or info@gwrifa.com