Kenya’s Film Board: Licensing of Online Content

published on June 29, 2018

 

Do I Need A Licence From Kenya’s Film Board To Post A Video On My Webpage Or On Social Media? A look into 1962 legislation and current application of licensing regime by the Kenya Film Classification Board.​
 

 
Anxious to get that full Wi-Fi bar signal so you can post that video on your Instagram “page” or on your Whatsapp status? Well, your social media followers might have to hold on a bit longer before they can view any of your video uploads from now on-hold for your application for a license in this regard is issued to you. This is if the Kenya Film Classification Board (KFCB) takes an interpretation (which was alluded to by one senior official) of the 1962 law, the Kenya Film and Stage Plays Act.
 

In a recent newspaper notice titled 'Requirements for Filming in Kenya and Penalties for Non-Compliance', the KFCB refers to the Kenya Film and Stage Plays Act which prohibits creation of any films meant for public exhibition without obtaining a filming license from KFCB in the following words: 'Subject to the provisions of section 10 (on exemption from licensing) of this Act, no film shall be made within Kenya for public exhibition or sale either within or outside Kenya except under and in accordance with the terms and conditions of a filming license issued by the licensing officer under this Part.'
 

The stated requirements for a license apply where the film is being created for the purpose of public exhibition or for sale.
 

The implication would therefore be that KFCB would require video creators to pay an annual registration fee of KShs 12,000 and KSh 5,000 for every video produced as long as it is under 40 minutes and Sh1,000 for every time you upload the video. The penalty for non-compliance is KShs 100,000 or 5 years imprisonment, or both.

 

Making a film for sale or for public exhibition

 ‘For sale’ is likely easy to comprehend and less likely to be misinterpreted. On the other hand, an ordinary meaning of ‘public exhibition’ would indeed suggest that a license is required when, for example, an individual makes a video and posts it on the internet (on Youtube, on a website, or social media et cetera).
 
However, the Film and Stage Plays Act, from which the KFCB’s mandate stems, gives a very specific meaning of a ‘public exhibition’. An exhibition is defined to mean ‘the projection of a film or other optical effect by means of a cinematograph or similar apparatus’, while a public exhibition is ‘an exhibition to which the public are admitted, whether on payment or gratuitously’. In other words a video is made for public exhibition depending on the apparatus used to exhibit it and as such the licensing issue turns on the apparatus used to project or show it.
 
Our view is that posting videos on websites or on social media (usually the videos themselves are not for sale, notwithstanding that they may be promotional) is NOT public exhibition of the video because posting does not constitute projecting such videos using a cinematograph or similar apparatus. It would be a stretch to conclude that uploading a video online could have been contemplated as being similar to the apparatus called a cinematograph, which we paste below for your clarity.
 

Our best guess is that the closest modern day ‘similar apparatus’ is a projector.

 

Ellone Korir

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Judy Chebet

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