Below is an update on all the fronts that HCU has been working on since our last newsletter. Thank you for your continued support as things continue to unfold.
Table of contents:
Protective brief sent out to all German courts
Direct donations to HCU are now possible as well as getting a donation receipt.
Yatao shop and Rav Drums relaunched with help of HCU
An Interview with Ron Kravitz; PANArt Distributor
1. Protective brief sent out to all German courts
The HCU lawyers drafted a 76 page protective brief and distributed it to German courts in an effort to educate anyone who might make a future ruling in regards to handpans. This brief contains a detailed description of our side of the story, including counter-arguments to many of the points that PANArt used in their existing preliminary injunctions. This is to make sure that every judge has the full picture before considering any decisions and should make it less likely for PANArt to succeed by attacking single targets who lack the resources or knowledge to properly defend themselves.
Furthermore, during the meeting in Zurich in October, our lawyers put PANArt on notice and officially gave them a list of all handpan makers they found online. This is significant and directly relates to the type of legal action PANArt has taken thus far. PANArt has been filing Preliminary Injunctions which is a type of legal filing that is based on urgency in relation to copyright infringement.
By giving PANArt this list of makers they will most likely not be able to argue urgency in court any more, which is a prerequisite for preliminary injunctions (“Einstweilige Verfügung”) letters. With these measures in place, handpan makers should be much safer for now and it would be more difficult and resource-intensive for PANArt to sue them.
You can find the protective brief in English here and in German here.
2. Direct donations to HCU are now possible as well as getting a donation receipt.
It is now possible to make a direct donation to the bank account of HCU. Donations can be made to Stichting Handpan Community United – IBAN: NL62BUNQ2049174195. For anyone who would like to make a direct donation from an account that uses a different currency than euro, we would advise to use Transferwise to save transfer fees and additional exchange rate costs: https://transferwise.com/. If any further details are required, please contact info@hcu.global.
GoFundMe already gives a donation receipt after making a donation, however we have noticed that some would appreciate a receipt from the HCU Foundation for administration purposes. We are now able to create this type of receipt. If you have made a donation either to the GoFundMe campaign or a direct donation, you can send an email to info@hcu.global requesting your receipt. Please be sure to include the following details: Full name, company, and address.
3.RAV Drums and Yatao shop resumed distribution with the help of HCU
After receiving a legal action from PANArt, RAV Drums and Yatao shop temporarily stopped worldwide distribution and sales of handpans. After receiving advice from Bird&Bird, the lawfirm of HCU, they have both resumed world-wide distribution, excluding Germany.
4. An Interview with Ron Kravitz; PANArt Distributor
From The Handpan Podcast:“Ron Kravitz is a notable figure in handpan history. As the sole Hang distributor in the US (2002-05) and then one of only two worldwide distributors (2005-07) Ron recounts untold stories and reveals secrets from the past. A must-listen for any old-timer, Hang-lover or anyone trying to make sense of PANArt’s position towards the handpan community.”
Sylvain: “So now, when the first handpan makers emerged — Pantheon Steel, BELLArt, Spacedrum, Caisa — how did Felix and Sabina respond back then? Which is, you know, 13 years ago.”
Ron: “Hmm. Just backing up. I have the clear memory of them saying or remembering them saying ‘we hope someone else creates an instrument so it takes the pressure off of us’. And then these instruments came out, and I kind of remember them not being, they weren’t so happy about it because they [handpan makers] weren’t doing it how they [PANArt] were doing it. It wasn’t the same kind of material. That’s a vague recollection of a conversation, which was contrary to what, ‘we wish people would come out with an instrument to take the pressure off of us’. So, I don’t remember a lot of dialogue about it, but that’s a general thing. So somewhere along the line, um, they changed their viewpoint, I think.”
It has been a while since we sent an update on the legal disputes with PANArt. The reason for this was that we had been preparing the defense of the Handpan Community together with our lawyers, and we were not able to share details about this any earlier. In the meantime, we have received an overwhelming amount of support from you, for which we would like to thank you very much! It is great to see that the Handpan community is sticking together against what we think are unjustified challenges by one single producer of these instruments.
Table of contents:
Meeting in Zurich: Ayasa Instruments – PANArt, Some questions answered by PANArt
Filed action at the Court of Bern in Switzerland against PANArt
Current status of the Crowdfunding
Frequently Asked questions about HCU (FAQ)
Publication of the letter that was sent on 21-09-2020 to Ayasa Instruments
The defendant of the ruling of Berlin is now known: RAV Pan has stopped their sales
1. Meeting in Zurich: Ayasa Instruments – PANArt, Some questions answered by PANArt.
On Thursday, 15 October, a meeting took place in Zurich where the following were present: Felix Rohner and Sabina Shärer (PANArt), Ralf van den Bor (Ayasa Instruments), the lawyers of PANArt (Meyerlustenberger Lachenal) and the lawyers of HCU (Bird & Bird). The meeting was set up in order to see if a peaceful settlement could be reached with PANArt. During that meeting, our lawyers requested an official statement from PANArt answering a couple of questions, which was answered by PANArt’s lawyers as follows:
Q: For which territories does PANArt assert a copyright on the Hang?
Article 27 para (2) of the Universal Declaration of Human Rights provides: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. And article 2 para (1) of the Bern Convention for the Protection of Literary and Artistic Works urges basically all countries of the world to provide for copyright protection for inter alia “works of applied art”.
A: Sabina Schärer and Felix Rohner are indisputable the authors of the Hang®. And the design of the Hang® is indisputably not “an idea, a procedure, a method of operation or a mathematical concept as such”, as excluded from copyright protection by article 2 of the WIPO Copyright Treaty, but the expression of its authors own intellectual creation, as required for the design of a functional object to qualify as “work of applied art” in the meaning of the Bern Convention by the European Court of Justice, e.g. in its decision C-833/18 from 11 June 2020.
What, therefore, since very recently seems to be the law in Europe is not yet clear in the rest of the world. Therefore, PANArt, for the time being, focuses its fight against the commercialization of counterfeits of their work on Europe.
Q: Is PANArt willing to license its copyright on the Hang?
Each Hang® is hand made by the tuners of PANArt, and Sabina Schärer and Felix Rohner do not want to compromise the originality of their works for commercial reasons.
Q: How does PANArt define the scope of its copyright on the Hang?
A: Sabina Schärer and Felix Rohner do not claim a monopoly on the idea of using a steel bowl for making sounds.
But they do claim copyright on a design which differs from the Trinidad’s folk art Steel Pan by the combination of the following design elements that constitute the overall impression of the Hang®:
– two hemispherical shells with the shape of a lentil;
– a dome placed in the middle of the top side;
– a hole placed in the middle of the bottom side;
– indentations which are arranged in a circle around the dome;
– as visualized here:
Based on the statement of PANArt, it seems that the discussion of how the instruments of Ayasa Instruments differed from the Hang, have sadly led to nothing.
2. Filed action at the Court of Bern in Switzerland against PANArt
On Tuesday, 27 October, we filed an action at the Court of Bern in Switzerland against PANArt. The aim of this action is to clarify once and for all that PANArt and its shareholders do not have a copyright on their instruments, and most importantly that they also do not have any claims against other people making, selling or playing handpans. We are confident that the Court of Bern will come to the right conclusion and will hold that there is no copyright and that PANArt’s claims are unjustified.
The action has just been filed, so it is difficult to predict how long it will take until it will be resolved. We will of course keep you updated on its course and any relevant news. Meanwhile, we appreciate your continued support of our cause, which we hope will ultimately be to the benefit of everyone in the handpan community.
3. Current status of the crowdfunding
The support has been overwhelming so far, we have just surpassed € 100.000! A big thank you to everyone who has donated or shown support so far. However, the lawyer costs have been running up quite rapidly. Bird & Bird have done an immense amount of work recently. This included taking care of all the legal work for Yatao shop, Ayasa Instruments and World of Handpans. The filing of the action in Bern has been done by Walder Wyss, a very well regarded law firm based in Switzerland. This required extensive research, creating a big work piece and gathering and creating additional documents. This has been an immense job fulfilled by the lawyers of Bird & Bird and the lawyers of Walder Wyss in conjunction with the administrative group of HCU.
We are thrilled by the cooperation of all parties together. Besides the work being done, there are also expensive court costs to be paid to the Court of Bern. To be clear, no HCU member is getting paid for anything, rather there are quite some costs and resources spent individually by some of the HCU members.
Funding is needed for legal fees. As PANArt continues to pursue legal action, HCU will continue to help fund legal efforts with the goal of opposing PANArt’s Copyright claim. Legal costs are very high and the current court proceedings regarding the copyright might go through several instances until a final verdict or settlement is reached.
Who exactly has access to the raised funding?
The funds are withdrawn from the GoFundMe platform directly into the bank account of HCU. A Dutch bank account belonging to the Netherlands based Stichting (foundation) The funds can only be used in coherence to the Dutch law regarding foundations. That means the funds can legally only be used in coherence to the official mission statement of the foundation.
Can the funding be used for paying scientific and other experts in order to create documents supporting the case
Yes and basically for anything that can help the case.
Who is the HCU?
Handpan Community United stands for and includes people who have an affection for the handpan instrument and believe in its mission statement. Everyone who wants to be included can do so by signing up on the website: https://hcu.global/ And everyone who wants to be more involved can join the discord server: https://discord.gg/p5xsJvg Unfortunately due to the short time frame, HCU could not be set up as a full democratic organization.
Regarding the question of if HCU should become democratic; this is where you can take part and join the discord server. If there is a wish for a more democratic system and people have input on how to make this a reality, their ideas are most welcome.
Are decisions made in the HCU public or are they decided only by a few members?
This is done on a case by case basis. As many of the decisions that HCU must make are around sensitive legal matters, strategic choices and confidential issues, most of the decisions are made in the administrative group. HCU is very open to outside input on decisions that aren’t deemed confidential and all decisions are made according to our mission statement. The administrative group (listed by alphabetical order) currently consists of:
Yhonatan Ale-Yahav (Yishama)
Duncan Arnot (Meridian Handpans)
Ralf van den Bor (Ayasa Instruments)
Ezahn Bueraheng (EchoSoundSculpture)
Kyle Cox (Pantheon Steel)
Colin Foulke (CFoulke)
David Kuckhermann (Handan Dojo)
Victor Levinson (SPB)
Alessio Massi (Hardcase Technologies)
Zachary Roome Lamscha (Leaf Soundsculptures)
Why should we support the HCU?
Supporting HCU is supporting the handpan and the greater handpan community. Our mission statement declares that HCU has one main focus: To safeguard and protect the growing international handpan community, through the commitment to preserve the playing, fabrication, availability and the further development of the handpan musical instrument.
To ensure our main purpose, HCU is willing to give support to individuals where needed, be it financial, advisory or otherwise, whilst not specifically endorsing or supporting the actions of any individual reseller or maker.
Through recent events it has become really clear that PANArt targets handpan makers and sellers and that they are looking to expand their claims. Their actions could seriously compromise the handpan instrument worldwide. We want all handpan builders to be able to continue their amazing work and build quality instruments, all resellers to be able to sell instruments and all players and enthusiasts to be able to play!
Why is the HCU not sharing with the public all information about what is currently happening?
There are topics that are legally sensitive which is why the exact time when to share some information needs to be examined for each individual case. If and when we can share pertinent and current information, we will via the HCU newsletter. HCU is striving to be as open about the current situation as possible, whilst staying safely within the confines of the confidentiality imposed by the legal proceedings.
Is there any other way to support the HCU other than donation?
Absolutely. Awareness is a great way to support HCU. Share our website and our mission statement on social media, email your subscribers a link to the HCU home page or the GoFundMe crowdfunding campaign.
Where does the money go if there are funds left after the case is settled?
There are currently several court proceedings happening involving PANArt and various handpan makers/resellers and community members. At the moment we are still quite far away from covering all expected costs and it seems rather unlikely that there will be funds left afterwards.
Should the cases get settled more quickly and if there are funds left over, all donors who donated 100 EUR or more will be given the options to get a corresponding percentage of their donation back or to keep them in the fund.
Any funds remaining after that will be either donated to another good cause or used in line with the mission statement of HCU. This can be done together with the community in a democratic way through online polls for example. This decision will not be up to the administrative group alone.
Why has the HMU site been deleted? Who was part of HMU initially?
Similar to HCU, HMU (Handpan Makers United) was founded in the effort to protect handpan makers from PANArt’s patent-based legal threats. As HCU was being founded, all HMU members voted to dissolve HMU and completely integrate into the new HCU.
Why is there no english full translation of the 48 Hamburg court pages publicly available?
Translations are very expensive and time-intensive. HCU translated the main pages of the Hamburg court cases so that all details in relation to the specific claims of copyright could be accessible to all. If anyone would feel incited to make the translation, it would be very welcome. It’s also possible to come to the HCU discord server and ask for help to make the translation.
Will everyone who is creating/providing Handpans be protected by HCU?
Handpan Community United is there to protect all HCU members against diverse legal issues. If you are not a member it’s not too late to join and contribute to the GoFundMe campaign.
Who is responsible for communication between the HCU community and the lawyers/ legal guidance?
Currently Ralf van den Bor and David Kuckhermann. In turn they communicate back to the administrative group and bigger strategic decisions are made together there. Decisions are only made with a majority in the group.
If there are any unanswered questions please join our discord server and ask them there.
5. Publication of the letter that was sent on 21-09-2020 to Ayasa Instruments
In the first instance Ralf van den Bor (owner and founder of Ayasa Instruments) requested a personal meeting with PANArt in Bern to discuss the recent developments in the court cases surrounding the handpan community. This was before HCU was created. However in reply Ayasa Instruments received a letter from PANArt’s law-firm: Meyerlustenberger Lachenal (mll). Ralf still requested a personal/informal meeting in Bern with PANArt the day before the meeting at mll. In the first instance this was accepted, however at a later stage PANArt chose to not have this meeting. HCU’s lawyers also requested David Kuckhermann to join the meeting in Zurich, however this was denied by PANArt.
6. The defendant of the ruling of Berlin is now known: RAV Pan has stopped their sales
The Russian company RAV Drum has stopped the sales of their handpans because of actions of PANArt against them. Yesterday they published the following:
Important note. Starting from today the RAV Pans are not available for sale for an uncertain period of time for juridical reasons and the resolution of the court of Berlin.
The RAV Vast tongue drums are available for sale as always.
The reason for the ban of the RAV Pans was a copyright lawsuit filed by PANArt alleging that the RAV Pans, have a similar shape to the Hang®, and are illegal copies.
For more than 20 years, the handpan has gained more than 50 thousand fans and followers all over the world. A new musical culture grew up and brought together many people from different countries. There are more than 200 manufacturers of handpans and similar instruments in the world today, and unfortunately, most of them may be “outlawed” in the near future.
Sorry to say that, but we are forced to make a decision to suspend the sale and production of instruments for an indefinite period.
For our part, we will make every effort to resolve this situation as soon as possible.
First of all, sincere thanks to everyone for the immense support offered since the launch of Handpan Community United (HCU). It is pleasing to see that more than one thousand members have chosen to join and support HCU. This gives hope that a supporting resource can be created together to protect the handpan community from current and future legal actions.
Updates on the current status and the next steps:
Table of contents:
1. The current state of affairs 2. Ayasa Instruments has received a letter 3. Crowdfunding 4. Why HCU should support everyone, including resellers 5. The current copyright claim on Handpans 6. The goal to create an even playing field 7. HCU Discord Server – Open platform for discussion
1. The current state of affairs:
HCU started working together with Bird & Bird, a high profile international law firm. They are experts regarding Intellectual Property and will be handling all legal defenses on the behalf of HCU. This means that any HCU member who receives an official legal letter from PANArt’s lawyers can receive legal advice or representation from Bird & Bird.
2. Ayasa Instruments has received a letter from PANArt:
In the first instance Ralf van den Bor (owner and founder of Ayasa Instruments) requested a personal meeting with PANArt in Bern to discuss the recent developments in the court cases surrounding the handpan community. However in reply Ayasa Instruments received a letter from PANArt’s law-firm: Meyerlustenberger Lachenal (mll). They are stating that Ayasa Instruments is infringing copyright of the Hang by the creation and sale of their instruments, and that with their handpan shells they are willfully inciting the production of unauthorised copies. In this letter PANArt’s lawfrim invited Ralf to their office in Zurich for settlement talks and a discussion how their instruments might differ from the Hang design. During the meeting, that will take place the 15th of October, Ralf will be accompanied by two lawyers from Bird & Bird.
3. Crowdfunding
In order to continue to effectively defend the handpan community from legal action, HCU is in need of ongoing funding to cover the cost of our legal representation. To generate funding, an HCU GoFundMe crowdfund campaign will be launched next Monday the 12th of October. This platform perfectly suits non-profit organisations and has minimal associated fees; It’s straight to the point and has good payment options.
You can support the campaign in various ways:
1. Monetary donation 2. Share the campaign on your social media 3. Start your own fundraiser: – Makers and Resellers: Start an instrument lottery or have a sale of instrument(s) where the proceedings or a percentage goes to the HCU GoFundMe campaign – Players/Artists: Offering online masterclasses or concerts – Or basically any other way you can think of!
If you are considering making your own fundraiser, please share it on the newly created Discord server (see point 7. below)
All funds raised throughout the campaign will be placed in a trust-fund account which can legally only be used in respect to HCU’s mission statement: “To safeguard and protect the growing international handpan community, through the commitment to preserve the playing, fabrication, availability and the further development of the handpan musical instrument”. In the current situation this means that funds will be used to finance all respective legal costs.
4. Why HCU should support everyone, including resellers:
Something that has been unclear to some is that HCU is supporting resellers. This has been met with some criticism at times and we would like to explain again why we came to this decision.
The main strategy of PANArt in their recent court procedures against resellers was to achieve a ruling on the copyright question. The decision to target World of Handpans was most likely a strategic one. The immense amount of preparations made it clear that PANArt’s main objective was to get a precedent ruling which, if won, would give them a legal base for future injunctions. It doesn’t matter against whom this ruling was originally achieved, so they most likely looked for an easy target, a young business in a neighboring country.
These results of these legal proceedings could affect all handpan resellers, makers and artists. This is already quite clear by all the recent court ruling references against Ayasa Instruments. It will not stop here. HCU would like to make this as clear as possible: our goal is not to endorse or defend a single entity. The HCU was not formed around the World of Handpans shop nor any other single entity. Our goal is to meet PANArt in court on equal footing to have a fair chance to defend members of the handpan community against their copyright claim. The first court rulings in Germany have already set a legal base for PANArt.
5. The current copyright claim on Handpans:
So what exactly does PANArt’s current copyright claim mean? To explain that, we have to take a brief discourse into copyright law. Musical instruments are normally not eligible for copyright, but works of creative art are eligible. PANArt’s claim states that all Handpans, that use a similar shape as the Hang, are illegal copies.
The specific aspects that PANArt’s copyright claim is based upon are:
– The lens shape – Shape and layout of the tone fields – The central dome – The position of the bottom hole – The golden ring of the Integral Hang
PANArt claims that these parameters are not necessary for Handpans and if their claim stands, handpan makers may not be allowed to build instruments with these aspects any more and may even have to pay damages for the past 3 years (from the point of the ruling) to PANArt.
6. The goal to create an even playing field:
PANArt has spent a lot of time and resources to fight for their claim. There are several high profile law firms involved for their side and we would like to level the playing field. Maybe there is a way to come to an agreement without fighting in court and we would be happy if a compromise can be found that leaves both sides happy. But if the matter goes to court, it should be done on a level playing field.
7. HCU Discord Server – Open platform for discussion
Everyone who would like to get more involved in HCU is invited to join the newly created Discord server. Discord is an easy to use discussion platform. Everyone can share their ideas and their own fundraisers on the platform, which we encourage everyone to do so that not every fundraiser gets launched on the same day, and it’s possible to plan together accordingly. Any discussions regarding the situation and developments could take place here as well. You can join the discord here: https://discord.gg/tBDPqVf Hope to see you there!
Best wishes to all of you, Alessio, Yhonatan, Zachary, Kyle, Colin, Ralf, Duncan, Ezahn, Flavio, Victor and David
