ArticlesIntellectual Property in the Film and Cinema Industry

Intellectual Property in the Film and Cinema Industry

By Sudi Wandabusi

The film and cinema industry is one of the most creative and lucrative sectors in the global economy. It is one of the biggest contributors to Kenya’s creative economy. The Film Industry Satellite Account Report, produced in 2023 by the Kenya Film Commission, sought to estimate the economic contribution of the film industry in Kenya. This report, done in partnership with GIZ and the Kenya Bureau of Statistics, reveals the industry’s substantial growth, with gross output value of Kshs. 86.9 billion in 2022 and Gross Value Added (GVA) of Ksh 38.1 billion in the same year. The report further showed that, even with the COVID-19 pandemic, the film industry created 42,823 jobs in 2022, and earnings stood at Ksh 14.4 billion. It was also reported that the film and broadcasting industry contributed 0.4% of the country’s GDP from 2016 to 2022.

But behind every successful show, movie, or streaming series, there are countless concepts, scripts, characters, and technical innovations that need protection. Intellectual Property (IP) plays a vital role in safeguarding the creativity, innovation, and commercial interests of filmmakers, producers, and other stakeholders. The challenges to the film industry in Kenya and globally are compounded by the fast changing technological advancement especially the current Artificial Intelligence era. This article explores the various aspects of IP in the film and cinema industry, examining the different types of IP protection and their importance in maintaining the integrity and profitability of film projects.

What is Intellectual Property?

Intellectual Property refers to the legal rights granted to creators, inventors, and businesses to protect their creations and innovations. In the context of the film industry, IP covers a wide range of assets, including scripts, characters, soundtracks, visual effects, and even the innovative technologies used to make films. IP rights allow creators and businesses to control how their works are used, distributed, and monetized, ensuring that they can profit from their creative efforts and preventing unauthorized exploitation.

Article 41 of the Kenyan Constitution provides for the protection of Intellection Property as a bill of right under the Right to Protection of Private Property. The Industrial Property Act, Trademarks Act, Copyright Act and Anti-Counterfeit Act are the key legislations enacted in the country to protect Intellectual Property.

There are several types of IP protection commonly used in the film and cinema industry:

1. Copyright
2. Trademarks
3. Patents
4. Trade Secrets

Each of these IP rights plays a distinct role in protecting the various elements of a film project. I have discussed each of these IP rights and their role in the Film Industry in separate articles.

Challenges in Protecting IP in the Film Industry

While IP protection is essential for filmmakers, there are several challenges in ensuring that IP rights are respected and enforced:

1. Piracy and Illegal Distribution: Piracy is a significant issue in the film industry, with unauthorized copies of films being distributed online, leading to revenue loss for creators. Digital rights management (DRM) tools and legal actions against piracy are commonly used to combat this.
2. Global IP Enforcement: The film industry is global, and enforcing IP rights across different countries with varying IP laws can be challenging. Filmmakers and production companies often need to work with legal experts in each jurisdiction to ensure their IP is protected.
3. Collaborative Nature of Filmmaking: Film production is a highly collaborative process, involving many contributors, including writers, directors, actors, and technicians. Without well crafted IP ownership and rights, conflicts over ownership and revenue sharing are bound to arise.
4. Changing Technology: The rapid pace of technological advancement in the film industry, particularly in areas like digital distribution, streaming, and special effects, means that IP laws must adapt to keep up with new methods of creation and distribution. Artificial Intelligence has come with a disruptive effect and poses a challenge to enforcement of some IP rights such as copyright.

Conclusion

Intellectual Property is a fundamental aspect of the film and cinema industry, ensuring that creators and businesses can protect their creative works and innovations. In an industry where ideas and creativity are the foundation of success, strong IP protection helps filmmakers, production companies, and distributors maximize the value of their works and maintain control over their intellectual assets. As technology and the global market continue to evolve, IP will remain an essential tool for maintaining the integrity and profitability of the film industry.

A robust Intellectual Property protection regime gives confidence to investors in the film and cinema industry to consider Kenya as a film destination, as well as guaranteeing maximum returns for our local film makers.

At OGSLaw, we have a full-fledged department for Intellectual Property, Telecommunication Media and Technology and Sports Law. You can contact us for any inquiry on IP protection.