Part 3: Sports and Entertainment Series

  • 18 Dec 2020
  • 6 Mins Read
  • 〜 by The Vellum Team


Written by Sarah Ochwada

Kenya is known as being the Silicon Savanna with an abundance of tech-start-ups developing user Apps for ease in finance, communications, transport, farming, healthcare and hospitality sectors. The 2 sectors which are still struggling to find a footing in the Kenyan tech space are sports & entertainment. Although Kenya boasts of a few companies which offer platforms for streaming and downloads of music such as Mdundo, Mookh and Skiza there’s still much more that we can do to participate in the global billion-dollar Interactive Entertainment space. 

What is Interactive Entertainment?

Interactive Entertainment includes products or services which use technology to create an interactive system within a virtual or simulated environment that generates visual feedback or an immersive experience for the end-user. The landscape around Interactive Entertainment covers digital media such as interactive television and video games.

The difference between non-interactive and interactive entertainment is that non-interactive entertainment is passive whereas interactive entertainment is user-driven. With television programs, films, internet-streaming, radio broadcasts, podcasts, and audio-books the viewer or listener is limited to the role of an observer and cannot necessarily have direct interaction with the content nor can they influence the outcome of the narrative which has a fixed story-line. 

With Interactive Entertainment, however, the end-user is more than just a spectator or an audience member. The user must input a series of actions or commands without which the simulations cannot execute and complete their function. The user controls the progress, perspective and perception of the experience. The same is true for Augmented Reality experiences such as App filters which are popularly used on Snapchat and Instagram. They require action on the part of the user, whether by placing the camera into a certain position or making facial movements in order to experience the filter feature.

As an example of Interactive Television the content streaming service, Netflix, released an interactive episode titled “Bandersnatch” as part of the anthology TV show “Black Mirror”. The episode follows the tale of a young coder and allowed users to steer the narrative as they watch, choosing how the episode develops and ends. As the episode unfolds, the audience would reach points of branching narratives, and a prompt would appear on the screen giving the user a few seconds to decide how to progress via remote control or tapping the screen. 

As exciting as Interactive TV is, the most popular form of Interactive Entertainment is gaming.

Gaming in the Context of Interactive Entertainment rather than in the Context of Gambling

Gaming, in Kenyan legislation, refers to the practice of participating in games of chance and is sometimes used inter-changeably with the word Gambling. The Betting, Lotteries & Gaming Act, Cap 131 was enacted to provide for authorizing public lotteries, and for the control and licensing of betting and gaming premises for purposes of imposition and recovery of a tax on betting and gaming. The Act defines gaming as “playing of a game of chance for winnings in money or money’s worth”. It further gives a wide definition of a game of chance to include “a game of chance and skill combined and a pretended game of chance or of chance and skill combined, but does not include an athletic game or sport.” As this Act came into force in 1966, it is safe to point out that these definitions are reflective of past times and are not inclusive of the technological advancements that have taken place since then and so have now become problematic in the wake of video-gaming. 

Gaming, in the context of Interactive Entertainment refers to the action of playing an electronic game of skill. Digital games, interactive games or video games are played on different kinds of electronic media such as computers, mobile phones, console devices (such as Play Station, X-Box, Nintendo Wii, Nintendo Switch, Stadia) and the Internet via streaming. We’ve had a variety of Video Games that have been developed by Kenyans such as: The Adventures of Nyangi (2007) an adventure game for PC by Leti Arts/ Wesley, Nganya Unlimited – a matatu racing game by Routes KE, and Mzito an adventure game by Weza Interactive Entertainment.  

Consumers of video-games interact with the Games as Single Shooter, Multi-Player, Sport Games, or adventure games. Beyond playing these games alone or with companions for amusement, players formed gaming communities to play against each other and to get the best of the best to play against them. The earliest form of gaming communities developed with the rise of video-game arcades, but then morphed into what is now considered as E-Sport.

The Development of E-Sport & the E-Sport Ecosystem

The earliest known E-Sport tournament was held in October of 1972 at Stanford University where students competed in a game called Spacewars to win a 2-year subscription to the Rolling Stones Magazine. Since then, the industry has grown to attract several gamers who are skilled in different kinds of games such as League of Legends, Call of Duty, PBUG, and to compete for cash prizes as high as 34 Million US Dollars for an International Tournament.

Gamers began to form E-Sports teams each with their own unique team names and player nick-names, and they began streaming their video-game sessions on platforms such as YouTube, Steam and Twitch which got them massive audiences and followings from gaming enthusiasts and fans who wanted to learn how they honed their skills or the tactics they used to progress from one level to the next. Gaming became so competitive and the audience numbers grew so much that these players attracted sponsors who were interested in product placement and advertising in exchange for compensation. Thus started the life of professional gamers who could make a living not just through winning tournament prizes but also through lucrative endorsement deals.

Slowly, the E-Sport ecosystem began plugging even more industries to support it: E-Sports coaches, nutritionists, venues to host the games, E-Sports Bar Franchises for E-Sports Enthusiasts & Cos-Players to hang out, merchandise traders who sell gaming chairs and headsets to name a few. The most important of these was the mushrooming of E-Sports companies and agencies whose core purpose is to manage an E-Sports Team – enable players and teams to enter competitions, and retrieve winnings & disburse money to the winners. With all this success internationally, there have been efforts to replicate tournaments and cash prizes locally and across the African continent. There are various E-Sports tournaments which have been organized and held in Kenya bringing a pool of players together to participate in Mobile Gaming, PC Gaming, & LAN Parties – most notably by Pro Series Gaming and Nairobi Comic Convention (NAICCON).

Regulating E-Sports in Kenya

As the Kenyan gaming community grows and as E-Sports tournaments have become more and more popular, we’ve seen a rise in interest not only to organize E-Sports events, but also to control and regulate the Ecosystem. 

The jury is still out on whether or not E-Sports deserves to be classified as a sport, with the International Olympics Committee only allowing a limited number of games to be show-cased as E-Sports at the Olympics – these are the games which simulate physical sports such as football and basketball. According to the Sports Act, sport is defined as “all forms of physical or mental activity which, through casual or organized participation, or through training activities, aims at expressing or improving physical and mental well-being, forming social relationships or obtaining results in competition at all levels, and includes any other activity as the Cabinet Secretary may, from time to time and after consultation with the technical department responsible for sports, prescribe”. From this description, one can argue that E-Sport can be categorized as sport… and therefore there is need for registration and regulation under the office of the Sports Registrar.

However, E-Sports is non federative i.e. E-Sports do not have a clear pyramid system of organization from international, regional, country and club level and do not have a solitary International Federation despite the current tries to set one up. E-Sport is highly fragmented due to the ownership of the Video Games themselves. Intellectual Property in the game is owned by Private Companies or Publishers doesn’t allow for E-Sport to have a clear cut definition of Federative Sport

The Game is owned by the Video Game Developer or Game Publisher. E-Sports Licensing for tournament is required because you can’t host a tournament without clearance or permission from the Game Developer or Publisher. They own the Intellectual Property of the Game from Copyrights (Animation, Graphics, Characters, to the Trademarks (Game Title, Character Names, Special Moves, Slogans, Catch-Phrases). A tournament organizer is essentially using another Company’s Intellectual Property for community or commercial interests and therefore Game developers have systems which evaluate the value of the tournament and how much the tournament license should be e.g. community tournaments in which the value of the reward is not beyond say KES 200,000 or the pool of competitors is limited to a small jurisdiction such as the county of Nairobi have a lower license fee than a regional competition pooling from several countries and offering a cash prize of upwards of KES 1 Million.

So registration of a National E-Sport federation would be problematic due to the private interests and non-federative nature of E-Sports. The best that the country can do is provide a facilitative environment in which Laws of Agency, ICT, Intellectual Property and contracts can be used to encourage and protect the professional gamers of E-Sports.

Sarah Ochwada is a Retired Runway Model turned Archer, Advocate, Arbitrator and Lecturer. She is a pioneering Kenyan Entertainment Lawyer and is the 1st black African woman to hold a Masters’ Degree in International Sports Law. She is an Adjunct Lecturer at Strathmore University Law School based in Nairobi, Kenya where she has taught undergraduate and executive courses in Sports & Entertainment Law, Media Law, Consumer Protection Law, and Fashion & Beauty Law. She is also a visiting lecturer at ISDE Law and Business school where she has taught International Sports Law at their Madrid Campus, Spain and at Wolfson College, Cambridge, UK. Sarah is the CEO for Centre for Sports Law a non-profit providing pro-bono legal services for the sports sector, and she runs her own private practice – SNOLEGAL Sports & Entertainment Law- which is a cyber-legal firm focusing on emerging and cutting edge areas of law.