Tackling Kenya’s ‘rampant’ film piracy problem

In Kenya, the film industry plays a key role in the social and economic development of the country as it offers a venue for idea sharing and conversation, which fosters public engagement. Further, it is important for the creation of employment and the generation of wealth, especially among the youth.

Copyright law is vital, as it tutors and safeguards the sector, giving the authors legal protection and the possibility to act against those who use the products of their creation without permission. And it encourages creative minds to create further works with the financial returns, without fear of unauthorised use by another party.

The industry is constantly shifting, aiming to evolve and increase its revenues. In addition, digital progress in Kenya has created conditions for the film industry to thrive by improving distribution and access to internet-based audiovisual products. Nevertheless, this progress goes hand-in-hand with a growing scourge: digital piracy, which has taken on a new dimension, leaving the film industry vulnerable.

Digital piracy and its motivations

Briefly put, digital piracy refers to the illegal copying or distribution of copyrighted material via the Internet. It negatively affects the creative industries, posing, in this specific case, a threat to film producers, actors and film crew.

Not only does online piracy pose a threat to potential investors in the industry, but it also reduces revenue for film producers. Digital progress aids consumers in easily accessing foreign films at a lower cost in comparison to locally produced films. Moreover, digital technology has made it easier to access and download local films before they are distributed into the market,  preventing film creators from earning royalties and awards for their films.

As possible motivations or excuses for acts of digital piracy, we may consider: unwillingness to pay; financial hardship; one-time use; belief that companies have enough money already and therefore the pirates have a right to freely distribute to the less fortunate and give everyone a chance to enjoy or use.

Then there is financial gain, where hackers download pirated content with the intention of reselling it, making a profit and, finally, a simple failure to understand the adverse effects of piracy.

This last point is manifest in Kenya, as many people don’t seem to understand that piracy takes away from the revenue streams of creatives and that they are participating in a crime.

The case in Kenya

Online piracy of films is rampant in Kenya. According to the Kenya Institute for Public Policy Research and Analysis (KIPPRA) Policy Brief no. 18/2022-23, one can gain access to films from movie shops and from traders on the streets, who illegally sell films.

Pirated foreign films entering the Kenyan market cause financial losses for local film producers and lead to unfair competition between easily available and affordable foreign films and those produced locally. Such illegal practice demoralises filmmakers and stifles their talent, preventing them from earning a living from their creativity.

Further, digital piracy hinders filmmakers from sustaining future operations. Similarly, a pirated film on the market deprives film creators of royalties that would have otherwise been paid through authorised film distribution. What’s more, excessive piracy drives away investors who would have otherwise invested in Kenya’s film industry.

Partners Against Piracy (PAP), a multi-sectoral association formed to combat digital piracy, estimates that Kenya’s creative industry is losing Sh92 billion ($585.1 million)  annually due to online piracy. Relying on the numbers of some creative sectors: In 2022, Sh15 billion is lost through pirated music, Sh32 billion is lost to pirated video content and Sh5 billion is lost from cinema.

The industry loses another Sh8 billion from television, Sh29 billion from pirated books, magazines, and newspapers and Sh3 billion is lost in gaming.

On World IP Day 2022, Mike Strano, PAP interim convener and MyMovies.Africa co-founder, said: “Pirates do not register their businesses and do not pay tax.  They also do not create employment.  Reducing piracy in Kenya can create at least 50,000 jobs”

In delivering a call for action, he added: “Creative industry is the next industrial revolution in Africa. The government and Corporates in Nigeria, South Africa, Ghana and Tanzania place a higher value on their creatives. Are we going to allow Kenya to be left behind?”.

A need for action

In view of the current situation, the Kenyan government, along with some relevant entities, has joined efforts to implement some measures and improve some existing shortcomings.

The government through the Kenya Copyright Board (KECOBO) and the Kenya Film Classification Board (KFCB) banned the importation of foreign films by labelling all the films. However, the enforcement of this prohibition remains a challenge.

In this sense, KECOBO introduced the Anti-Piracy Security Device (APSD), a unique barcode applied to legitimate video and audiovisual works, working to distinguish legitimate video and audiovisual works from the pirated works and to monitor the online distribution of films. KECOBO is currently the responsible body for seizing films that lack APSD.

The Kenya Industrial Property Institute (KIPI) is also supporting the film industry by bringing IP understanding to rural and distant locations through programmes that assist innovators and creators in the nation. This initiative is vital for educating and creating an awareness of the value of IP and the damage caused by piracy among the nationals.

The Communications Authority of Kenya (CAK) on behalf of the government established a 40% local quota restriction for registered local broadcasters of local broadcasting airtime to promote the distribution and presentation of local films. Local content creators and filmmakers have benefited greatly from this government mandate.

The World Intellectual Property Organization (WIPO) conducted in-depth talks about internet piracy and encouraged its member states—Kenya among them—to enact legislation against it, thereby bolstering national efforts to stop it.

Further to this initiative, KECOBO took another step, and in November 2022 submitted a project proposal on development of strategies and tools to address online copyright piracy in the African digital market to the WIPO’s Committee on Development and Intellectual Property (CDIP).

The project is expected to last 36 months and has the scope of assisting beneficiary countries in effectively addressing online copyright infringement by examining potential enhancements of the regulatory framework, exchanging good practices, adopting cost-effective technical tools, conducting capacity-building activities, and providing customised technical assistance.

Overcoming challenges

Touching on challenges that need to be overcome to effectively decrease digital piracy in the film industry, KIPPRA, in the Policy Brief no. 18/2022-23, states that: “While Kenya has made progress in fighting digital piracy, through the development of legislation, policies, and establishment of institutions, there seems to be overlapping roles within the institutions established. This has led to weak coordination and implementation of piracy laws and legislation, among the enforcing agencies.”

Such an event may be related to the fact that the Copyright Act 2001 received presidential assent on December 31 2001 and was brought into force without the requisite implementing regulations on February 1 2003, resulting in several difficulties related to its enforcement.

Furthermore, domestic copyright law does not provide clear guidelines to protect film creators against digital piracy. Sections 35B (takedown notice) and 35C (role of internet Service Provider) of the Copyright Amendment Act (2019) have put in place a legal basis for Internet Service Providers (ISPs) to help in regulating online piracy of films. However, three years have passed since its enactment, and the Act has yet to be implemented and enforced. Some entities, such as MultiChoice Kenya (Africa's leading entertainment platform) and KIPPRA, have been communicating the urgent need for implementation, as this would objectively restrain the ongoing unlawful acts of pirates.

Gaps remain

Within the scope of the Kenya Cyber Crime Act, for instance, its current provisions do not specifically require Internet Backbone Providers (IBPs) to take active measures to prevent access to infringing and inappropriate domains. Leonard Agufa, the head of operations support at MultiChoice Kenya in his opinion article, Tighten Law To Curb Digital Piracy, says there is a need to address this gap and place a measure of responsibility on these key players in the digital ecosystem to maintain a safer and healthier online environment.

He underlines that the law needs to be tightened to empower IBPs to identify and block domains involved in the dissemination of copyrighted material without the necessary permissions from the rights holders.

The Kenyan government and the relevant above-mentioned entities have taken important steps towards curbing digital piracy, however, it is important to establish regulation and enforcement capacity for state agencies in the film industry to prevent foreign exploitation of local filmmakers, to strengthen the Kenya Film Classification Board's (KFCB) institutional capacity to harmonise film licensing, to increase public awareness of IP  rights, and to enhance coordination among institutions to protect this crucial sector.

Diana Pereira is a trademark and patent attorney at Inventa. She can be contacted at:  dpereira@inventa.com