Poor artists in a rich industry

A man with empty pockets. [iStockphoto]

If it is not musicians fighting over royalty issues, it is filmmakers crying foul about film recording licensing issues or digital content creators up in arms over new taxes. And then there is the fashion that isn’t even sure where to present their grievances.

And it is not just about policy, remuneration within the industry is also a thorny issue.

How much should a musician charge for a gig? Who decides how much an actor should be paid for playing the lead role in a winning play? What is the worth of a Miss World Kenya or even say Miss Universe Kenya title holder? What does this title of a ‘celeb’ come with?

It is claimed that the Kenyan creative sector is worth millions and that it has the potential to be a main contributor to the nation’s GDP. For the people working in this industry, however, the money is only on paper and the illusion presented on social media.

With thousands of creatives crying foul as they languish in poverty, there begs the question of why the sector has all been sailing in murky waters for so long.

The creative sector has remained an elusive issue for successful governments. There has never been such an engineered talk on the creative sector by a government as now. But the fruits are yet to be seen.

Together with stakeholders, the just-fired Cabinet considered several policies, among them, on the creative economy.

The Creative Industries Policy and Creative Economy Bill has gone through public participation and awaits validation before submission to Parliament.

“We believe that the new Creatives Economy Bill has an all-encompassing legal framework to manage this space. It’s going to add punch and impetus to the establishment of a much more robust film industry and the creative economy in general which goes beyond film. We are talking about music, theatre, fashion and design, fine art, and performing fine art. All that stuff is going to be consolidated under the New Creative Economy Bill,” former Youth Affairs, Creative Economy and Sports Cabinet Secretary, Ababu Namwamba told Pulse.

George Gachara is a creative industries expert, arts manager, and founding partner at HEVA Fund. He says the first thing is a real recognition that the sector is a critical economic sector especially one that can provide over one million jobs that are both sustainable, flexible and decent.

“The other is that the creative industries require an enabling environment, that is, has both freedoms of expression, conscience and association to thrive additionally, some spending power in the hands of consumers. Why liberal rights? Musicians, poets, designers, creators and thinkers are the engine which fuels new creations and new ideas. The society has to be permissive to new and provocative ideas,” he says.

George says there is a need to look at issues such as informality, labour protection, intellectual property protection and finance.

“When it comes to matters of policy, there is a lot to be done. We need to look at the ones which are collecting dust like the National Music Policy of 2020, the Culture Policy and Culture Bill yet to be enacted; the Kiswahili Bill that has not passed; the Film policy not approved, the Kenya Language policy not approved by Cabinet and others,” says Professor Kimani Njogu, a cultural scholar.

Professor Kimani, an Associate Professor of Kiswahili and African Languages, says there is a compelling need to repeal the Kenya Film and Stage Act Cap 222 and replace it with a progressive framework for the sector.

“Regulations play a crucial role in shaping the growth and sustainability of Kenya’s creative economy. The government has made strides in formalizing the creative sector through policies that promote innovation and protect intellectual property,” says Ezekiel ‘Ezy’ Onyango.

Ezekiel, who is a Fellow of the Royal Society of Arts (FRSA), says the positive influence of supportive policies on the film industry is exemplified by establishing the African Union Secretariat of the African Audio-Visual Cinema Commission (AACC) in Nairobi.

This initiative he says is a testament to the impact of such policies, and aims to boost the film industry by providing a central platform for coordination and support across the continent.

“The creative sector in Kenya has seen remarkable growth driven by a combination of supportive policies, training programmes, and incubation services. This growth is a testament to the sector’s potential and the opportunities it holds. “However, for the industry to reach its full potential, it is crucial to fast-track legislative reforms like the Creative Industries Bill and Policy 2024 and the Culture Bill 2024. Addressing copyright issues through the Copyright Bill 2023 is essential for protecting artists’ rights and ensuring a sustainable creative economy,” he says.

While Kenya does not currently have a definite policy for the creative economy, there are a few policies that point to it, including the 2009 National Policy on Culture and Heritage.

“However, there are other policies that are not central to the creative economy but affect it, including the national trade policy.  These policies however have not been able to address the creative sector, as their focus was on subsidising the creative economy rather than promoting and supporting it to be a major driver of economic change. There is little to no regulation of key sectors, for instance, music is unregulated,” says Steve Omwenga, an advocate and stakeholder in the creative industry.

Steve says the closest we have gotten with it is the Bottom-Up Economic Transformation Agenda (BETA), which, if well implemented could mean a big boost for the creative economy.

The future is dependent on the current policy discussions.

“The idea brought by BETA is that the creative economy has to be considered not just as a small subsector, but as a major player for the economy from a ‘Whole of the nation’ approach. Looking at this, we need a more engaging, nationalized policy for the creative economy. A cross-cutting policy that will then allow for the sub-sectors to grow, including audiovisual, performing art, TV and radio, publishing, fashion, pageantry among others,” he says.

Critics have it that the current education system does not fully support the development of skills relevant to the creative economy.

“The current education system is trying – but hardly so with the transition period. It could be a while before we achieve a proper mainstreaming of the creative economy in education. With some research, the best way to go would be to first engage the public through a strategic political dialogue aimed at unteaching beliefs that are biased against creativity. It would only work if the common parent stopped believing that a doctor, lawyer and engineer are the best careers,” he adds.

His words are echoed by IP lawyer Essendi Kenneth and Managing Director at Inventa Africa Associates.

“The paradigm shift in the education system from content-focused to competency-based curriculum is an upshot for learners to cultivate creative skills. Due to its limitations in preparing individuals for the modern global digital market, the previous curriculum required a shift towards one that empowers students to discover and acquire new skills and then apply them effectively.  It is a gain to the creative industry,” he says. “However, the weak implementation of well-crafted laws in the sector by the relevant regulators is a significant disadvantage that undermines the morale of digital artists. Second, the regulations are fragmented, which increases the risk of overlapping mandates and duties of entities that regulate the creative economy,” he adds.

For some time now, the collective management sector in Kenya has been affected by unfavourable policies and regulations that extensively inhibited the growth of the creative sector.

These policies have been largely created without substantive input from the creative stakeholders or sometimes without regard to the views of the right holders; a case in point being the gazettement of collective management tariffs in 2020.

“While 2019 saw the enactment of the legacy law (that established ISP liability provisions), we have seen unpopular attempts to water down these achievements through “backdoor” amendments with far-reaching impact. The uncertainty and inconsistency in the CMO policy environment have affected the performance of CMOs thanks to the regulator’s subjective policy interpretation and or application,” says Kenya Association of Music Producers chairperson Angela Ndambuki.

Kenya Association of Music Producers chairperson Angela Ndambuki.

“While 2019 saw the enactment of the legacy law (that established exclusive rights for owners of sound recordings and the ISP liability provisions), we have seen unpopular attempts to water down these achievements through “backdoor” amendments with far-reaching impact.

“The uncertainty and inconsistency in the CMO policy environment have affected the performance of CMOs thanks to the regulator’s subjective policy interpretation and or application,” she says

Angela, who is also the Regional Director of the International Federation of the Phonographic Industry for Sub-Saharan Africa, says a progressive creative economy is essentially a function of a safe policy environment because good laws and policies spur industry growth by incentivising local and foreign investors.

“It is this kind of stability that has facilitated the development of the creative industry in developed nations because their policies and laws acknowledge, for instance, that recorded music is a business enterprise and thus must be afforded proper protection that aligns with standard practice.   

It is alarming that there have been numerous attempts to amend the Copyright Act-almost on an annual basis in the last 10 years,” she says.