CORPORATE COMMERCIAL LAW UPDATE: THE TANZANIA FILM REGULATIONS OF 2020; IMPLICATIONS TO BUSINESSES AS FAR AS VIDEO ADS AND DIGITAL CONTENT REGULATION IS CONCERNED IN TANZANIA.

• Unpacking the definition of “film” in Tanzania and the question whether it includes commercial video ads and moving pictures
• Whether small and medium online businesses are affected by these Regulations
• Knowing if you need a permit to produce a video ad?
• Are there any penalties when one produces a video without a permit?
• An outlook on the responsible Authority for issuing permits and a tug-of-war with other regulators.

 1.0 Introduction

The Government of Tanzania, through the Minister for Information, Culture, Arts and Sports issued the Film and Stage Plays Regulations, 2020 (“The Regulations”). The said Regulations were published on 26^th June 2020 under Government Notice No. 488. Publication of the Regulations is in line with Section 38 of the Film and Stage Plays Act, 1976 which empowers the Minister to make regulations generally for the better carrying out of the purposes and provisions of the Act.

Our Corporate Commercial Department at Breakthrough Attorneys has reviewed the Regulations and prepared this Article highlighting the implications of the Regulations to businesses.

Among other things the Regulations provide a broad definition of the term film, provide for the requirement to obtain a permit for making films, and other related matters as highlighted in this Article.

 2.0 What is a Film according to the Regulations?

Prior to the enactment of these Regulations, the term Film was defined under Section 2 of the Film and Stage Plays Act, 1976 as a cinematograph film, and includes any commentary (wherever spoken and whether the person speaking appears in the film or not), and any music or other sound effect whatsoever associated with the film, and any part of a film.

The definition is currently broadened in the Regulations as it is put under Regulation 2 as follows;

“means the arrangement of images of objects recorded and linked to the sounds of words or music and stored in the device in a digital format, or in any format that the image can be moved and includes any images in the form of various film or video but does not include video developed in the context of journalism.”

Unlike the definition in the Act which defines Film in terms of context only, the Regulations define the term film in terms of content, context, storage, and format. The definition is specific enough as it excludes videos developed in the context of journalism even if its format resembles that of a film. Neither the definition nor any provision in the Regulations specifies as to the exact duration that a video or motion picture must have for it to be considered a film under the Regulations. This means it does not matter the length of the video whether it is short or long.

3.0 Implications of the Regulations to Companies

The definition of the word film is so broad that it covers any advertisement in any format and in motion picture format so long as the same contain sounds, music, and or voice-overs. This means any person who intends to use film content in its business advertisement shall be regulated by the Regulations. The word person is defined under Regulation 3 of the Regulations to include individual, association, federation, civil society, a registered company, registered joint venture, or public body. This means any of the mentioned persons is subject to the Regulations when it comes to production and use of videos or moving pictures. To be specific these Regulations have legal/regulatory implications to both businesses, individuals, associations, civil societies, joint ventures, public bodies, and Companies. The following are the implications of the Regulations to targeted persons;

1. 1. Permit Requirement for production of a film.
      Regulation 4(1) of the Regulations prohibits any person from producing a film (including advertisements) without a permit from the Tanzania Film Board. We must reiterate that the word person used in these Regulations includes individuals, companies, civil societies, joint ventures, and public bodies as per the definition under Regulation 3.

      This means that even individuals conducting retail business, online shops would be required to have permits for the production and publication of ads in form of videos or motion pictures. It is important to also note that the Regulations do not specify as to whether a video must be professionally produced for it to be subjected to the Regulations. Due to this generality, it can be interpreted that even a video captured by using a mobile phone camera, a selfie video showcasing the business posted on a social media page will be bound to the requirements of the Regulations.

      Regulation 4(3) provides that the Application for a permit for production of a film shall be made at least thirty days (30) before the day in which production is expected to begin. The application shall be submitted to the Tanzania Film Board which may issue a permit once satisfied with the application.

      The application for a permit shall be accompanied by a script of the film, a description of the places to be used when making the film, the names and responsibilities of the actors, artists and actors who will be involved in the production of the film, and an analysis of resources and costs in producing a particular film.

      According to Regulation 28 and the Second Schedule of the Regulations, a Company shall pay a fee of Tshs 2,000,000/= (Two Million Shillings) for the application for a permit to produce a film whereas a foreign company shall pay USD 1000. Besides, the company shall pay Tshs 1000 per every minute of the review of a film by the Board.

      On the other side, individuals are required to pay Tshs 50,000/= (Fifty thousand shillings) as the application fee for a permit to produce 1 to 5 films within 6 months.

   2. Authority of the Board.
      The Tanzania Film Board has authority over Companies to matters related to the production and use of videos and motion pictures in their business advertisements. Thus Companies shall adhere to the requirements set in the Regulations and to directives given by the Film Board.

      Along with other powers, the Film Board may suspend the permit for production of a film if a person has not complied with the script approved by the Film Board. If necessary the Film Board may order rectification of the defects or deficiencies, or revoke the permit. These powers are provided under Regulation 6(1) and (2) of the Regulations.

      Under Regulation 11, the Film Board has the power to perform screening and review of the Company’s commercial advertisement before it has been approved for public viewing. Whereby the Company shall submit two copies of the film as well as one copy of the script of its advertisement to the Board for review.

   3. Offences and Punishment/Penalties.
      Several offences are provided in the Regulations in which if proved against the Company or any person will attract punishment or penalty. Offences include the following;
      1. Making changes to a film, drama, or advertisement after approval by the Film Board without the written consent of the Film Board itself. (Regulation 15(2) )
      2. Production of a film or Advertisement without verification and permit by the Film Board. (Regulation 16(2)(a) )
      3. Violation of the instructions given by the Board during the review or on the grant of a permit. (Regulation 16(2)(b) )
      4. Production, showing, or airing of a film or Advertisement which contains prohibited content. (Regulation 16(1) and (2) (c) )

      A person (including a Company) that is found to have committed any of the above offences or any offence under the Regulation or the Film and Stage Plays Act, 1976, shall be liable to a fine not less than one million (1,000,000/=) but not more than ten million shillings (10,000,000/=). The Film Board may take other appropriate action against the person or work prepared where it considers it appropriate to take such action in the interest of the industry or society as a whole.

      In that regard the Film Board may capture and nationalize all copies of films distributed in the original format without permission; co-operating with other authorities to restrict the distribution and seizure of the equipment he used; instant fines not exceeding one million shillings; notify the relevant authorities so that the perpetrator can be prosecuted in accordance with other laws of the land; cancel the relevant permit, or provide a written warning.

4.0 The Regulatory confusion with the National Arts Council Regulations, 2018

There is also uncertainty as to which law prevails when it comes to the permits and fees for video and motion pictures. The National Arts Council, Regulations (BASATA Regulations) also require producers of film contents to get a permit from the National Arts Council. This has created concerns among stakeholders as to which authority shall the permit be granted between the Film Board and the National Arts Council. This is still unclear although under the current practice the permits are issued by the Film Board.

5.0 Conclusion

These Regulations to business persons imply that all commercial ads in form of videos or motion pictures are regarded as films. This means, for a person(whether individual or corporate)to use video or motion picture ads, it must pay the required application fee for the production of a film.. A person shall also be required to pay Tshs 1000 per each minute used in the review process at the Board. It should be noted that not only companies and individuals are subject to these Regulations but also Government Institutions, joint ventures, and civil societies.

The Regulations if implemented strictly, will add a burden to small and medium-scale entrepreneurs most of who depend on online platforms to advertise their businesses using video advertisements and motion pictures. Breakthrough Attorneys alerts online businesses to be aware of what the Regulations require them to do taking into consideration that the Film Board has started to implement the Regulations to companies. This again, adds on the massive issues that also involve intellectual property rights as regards originality, image rights, and so forth that businesses still have to deal with in the process.

 

 

 

Important Notice:

This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Breakthrough Attorneys, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.