Walder Wyss filed our second brief to the court of Bern. It represents countless hours of work and is the product of the legal team (Bird & Bird and Walder Wyss) closely collaborating with numerous members of the handpan community along with prestigious external scientific experts.
It’s been a while and much has happened since the last HCU newsletter. Due to the active court proceedings, there are many matters which we have not been permitted to share with you until now. Today there is good news to share!
Table of contents:
1. Berne Copyright Proceedings Update
Walder Wyss filed our second brief to the court of Bern last month. It represents countless hours of work and is the product of the legal team (Bird & Bird and Walder Wyss) closely collaborating with numerous members of the handpan community along with prestigious external scientific experts. You can find the Brief here.
Jim Woodhouse, an emeritus professor of the Department of Engineering in the University of Cambridge, prepared an opinion on technical aspects of certain features of the Hang, which was filed to the court of Bern together with the brief. You can find his expert statement here.
We are pleased with the result and feel that it provides a very convincing case.
PANArt has received the brief recently and now has time over the summer to reply. After that the final hearing will take place in Berne. It’s expected this could happen as in the first quarter of next year.
One key thing to keep in mind in regards to this legal situation is that it all comes down to copyright – specifically, can PANArt claim a copyright on a musical object that is lense-shaped, with a circular note arrangement and featuring a tone-field with a dome on the top side (Ding) and a port-hole (Gu) on the bottom side? This is exactly what came to the forefront in the court of Bern in October of 2021. Upon reviewing submissions from both sides, the court suggested to split the legal proceedings into two separate questions:
a) can PANArt legally apply a copyright on Handpans?
b) if the answer to a) is ‘yes’ and Panart has a copyright on all or some of the elements as claimed, then how wide/narrow would such a copyright be? Are any of the parties involved actually infringing on that copyright with their instruments?
This means that, before looking at handpans and the question of if they would violate a potential copyright, the court will focus first on the question if there can be a copyright at all for this musical instrument. This question has also been the focus of the latest brief (attached) that our legal team has prepared.
2. Dutch Copyright Proceedings Update
It has been over a year since Ayasa Instruments had 70 instruments and 400 shells legally seized.
From our May 2021 Newsletter:
“On the 28th of April a Police officer (Assistant Prosecutor), a bailiff, and a locksmith arrived at Ayasa Instruments and seized all of their handpans, as well as the shells that were in the process of being made into instruments, on behalf of PANArt. Their wish is to have all handpans and shells destroyed by a third party at the expense of Ayasa Instruments, amongst other heavy demands stated below. PANArt initiated what is called a prejudgment seizure. A judge of the Court of Central-Netherlands reviewed PANArt’s claim of copyright infringement and has granted PANArt the permission to seize handpan instruments along with any shells in process until further review. In the Netherlands, a party can demand a seizure without the accused party’s knowledge so that the accused party does not have the time to move/sell their goods before the seizure. The threshold for a judge to allow such a prejudgment seizure is relatively low. The law states that the judge looks “briefly” at the claim, and upon seeing a potential infringement, the seizure will be granted.”
This has now been reviewed by the courts and it has been determined that there is a jurisdiction issue. Due to the fact that Ayasa Instruments and others filed against PANArt in the courts of Bern in the Fall of 2020, the Dutch courts decided that things first need to be settled in Switzerland before they can determine the outcome in the Netherlands. In a way this can be considered good news because for the time being, no more financial and time resources need to be spent on this action in the Netherlands. But it also means that everything that was seized from Ayasa Instruments will stay seized until there is a decision in the courts of Berne.
3. Patent proceedings – A historic dispute now put to rest
In 2009, PANArt filed an international patent application which ultimately resulted in the grant of essentially identical patents in the U.S. and the EU. Specifically, each granted patent covered processes used in the manufacture of handpans utilizing gas nitriding. Unfortunately, after the patents were granted, PANArt quickly began accusing certain handpan makers of infringement and thus a long-standing dispute began.
It was contested by the accused makers that as PANArt’s own research paper, published nearly a decade earlier, had already placed the patented subject matter into the public domain, PANArt’s processes for gas nitriding steel handpan shells were rendered free for anyone to use, ultimately preventing any future patent enforcement efforts.
Relying on PANArt’s own prior publication, Pantheon Steel, the first company to be targeted by PANArt, challenged PANArt’s newly-granted U.S. patent with a patent reexamination in 2014. As a result of the reexamination, all but two of PANArt’s original U.S. patent claims were canceled and the surviving claims were substantially narrowed to be limited to particular ranges of needle-shaped iron nitride densities. Evidently seeing no value in maintaining the U.S. patent with such narrow claims, and faced with evidence that the narrower claims were also invalid regardless, PANArt abandoned the U.S. patent in October of 2021.
At the same time, a newly-formed worldwide collective of makers, called Handpan Makers United, was established to challenge PANArt’s nitriding process patent in the European Patent Office (“EPO”). Although PANArt tried to save some patent scope by amending its claims during the EPO patent opposition, Handpan Makers United appealed to prevent PANArt’s patent from surviving in any form.
Word was received recently that the extensive and painstaking efforts in the EU have been rewarded. Specifically, the appeal board at the EPO issued an opinion agreeing that PANArt’s claims are invalid, and PANArt’s EU patent, like its U.S. patent, is also now extinguished. This process took eight years to complete, but thankfully the legal position on the use of nitrided steel shells has finally been made clear and the matter is now resolved.
4. Urgent call to be able to proceed + Upcoming Instrument Lotteries and Call for Donations
As you can see from the attached brief and all the other legal developments mentioned here, considerable amounts of financial resources were spent in the last 12 months for lawyers and the courts. Through generous donations from inside and outside the handpan community we were able to give the handpan the best defense possible. To be able to financially stay “in the game”, however, we are unfortunately reliant on more donations.. There are two ways to donate to the cause:
donate any amount directly to the Gofundme campaign or into the bank account of the HCU foundation (see below)
purchase an instrument from one of our regular lotteries (all proceeds will go to the HCU foundation)
You can find the HCU Gofundme campaign here.
It is also 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.
What happens next:
Now that HCU have submitted the legal brief, time is given to PANArt to to submit their rejoinder. We expect that the court will grant PANArt a deadline of around 3 – 4 months for that, so we should probably expect their next filing after the summer break. We then expect that the court will probably summon for the main hearing on the case either late this year, or possibly early next year.
We want to briefly report to you on our first hearing in the proceedings against PANArt before the Court of Berne. The hearing took place on Monday, 11 October 2021. It was set up as a first hearing in the early stages of the proceedings, which was held essentially to give every side the opportunity to summarize their key arguments and give first explanations on the instruments to the judges. We think that it was a very good hearing. We were able to explain the instruments to the judges and had the impression that the judges understood them very well. The court did not indicate any preliminary opinion on any of the legal issues at stake, but that could also not be expected at this stage of the case. The court also asked the parties whether a settlement was possible, and we will certainly explore the options further, although it appeared at the hearing that the parties’ respective positions are far apart so that it might be difficult to come to a settlement.
If no settlement can be reached, the case will continue with a further exchange of written submissions, in which we would be able to further explain our factual and legal arguments as well as to present and offer further evidence. After today’s hearing, we are confident that we are on the right track.
Colin, David and our lawyers will do a Q/A session as part of the Handpan Day stream tomorrow at 21:00 MET (Berlin, Paris) / 15:00 EDT (New York) / 12:00 PDT (LA) / 3:00 (Tokyo). For further information you can check out the Handpan Day Facebook Page: https://www.facebook.com/handpanday
with best regards,
the HCU admin team
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| Dear Handpan Community, Hereby an update on the latest developments, Table of contents: – Recap and update on the Dutch proceedings – Update on the Swiss proceedings – The Handpan Timeline – More questioned answered in the updated FAQ (Frequently asked questions) 1. Recap and update on the Dutch proceedings These proceedings on the merits were indeed instituted by PANArt, and Ayasa Instruments was summoned before the Court of The Hague. In its claims, PANArt seeks a pan-European infringement injunction against Ayasa Instruments, as well as, among other things, destruction of product stock, declaration of sales information and compensation for alleged damage, penalties, and lawyer costs. Now for the update. As you know, Ayasa Instruments, together with many other makers, initiated proceedings against PANArt in Switzerland, in order to defend itself against PANArt’s copyright claims. You can read more about the status of these proceedings in paragraph 2 below. The Swiss proceedings concern the same subject as the Dutch proceedings, and were initiated earlier than the proceedings at the Court of The Hague. This is where it gets a bit technical. There are international treaties with rules that deal with the same cases being brought before courts in different countries, as is the case here. These so-called lis pendens rules exist because there is a danger that decisions of the different courts in different countries are incompatible with one another. Based on this, we have now (in the Dutch proceedings) put forward that the Court of The Hague is incompetent to hear PANArt’s claims now, because the proceedings in Switzerland were already pending. If successful, this would also mean that the seizure of the handpans and shells of Ayasa Instruments has lapsed. We have filed these lis pendens arguments by way of a so-called ‘procedural issue’. This means that the Court of The Hague will decide on these arguments first, before looking at all the other claims. Namely, if the Court agrees with the arguments, there would be no point in looking at the other claims, since the Court of The Hague would consider itself incompetent due to the Swiss proceedings. The Court of The Hague has received the procedural issue in good order, and PANArt will have to respond in the second week of September. In principle, the Court of The Hague will thereafter render its decision. In case the Court fully agrees with the arguments, that will be the end of these proceedings in the Netherlands. 2. Update on the Swiss proceedings In the proceedings in Switzerland, PANArt have meanwhile filed their Statement of Defense, which is their first substantive submission in which they set out their arguments. This submission did not bring any relevant new aspects, as we were already aware of PANArt’s position and main arguments from the proceedings in e.g. Germany. The Court of Berne now summoned for a preliminary hearing on 11 October 2021. This will be a “case management hearing” in which the court has a first discussion of the matter with the parties, probably also explaining the court’s preliminary view of the matter and which aspects should be focused on in the further submissions. The court will probably also see whether an amicable settlement of the dispute is possible. This hearing is scheduled for a full day, but with only a limited participation of two representatives for either side (i.e. for all plaintiffs together, and for the defendant), and of course with the lawyers. The hearing will not be public, though. We are currently preparing for this hearing together with our lawyers. There will not be any further written submissions before the hearing, but if the case continues after the hearing – if no settlement can be reached – a further round of written submissions will probably follow. 3. The Handpan Timeline Learn history, check sources, research and double check. The Handpan Timeline is a crowdsourced project that was voluntarily created and is voluntarily maintained–’the purpose being to create a timeline of sources on the history of the musical instrument known as the handpan’. While the Handpan Timeline Team makes no claim to completeness, it is a very extensive timeline and one that is constantly expanding and growing. No new content is created specifically for the timeline; it only shows references to existing sources. It has proven to be an incredible resource for HCU and if you are at all interested in learning about the factual history of handpans be sure to visit. From the timeline website: “How to participate as an author or editor of postings? If you can help this project please first introduce yourself at contact@handpan-timeline.org – let’s speak about your ideas and lets find a good task to start for you. There is indeed a lot of voluntary work to do and everyone has limited time to work on all the tasks. Of Course for such a project it is also vital to have a flexible and growing core team! Such a project can never be completed or finished and a network of a trusted framily (friends/family) is vital to continue! This project is not funded at all! – it is voluntarily maintained and updated by steelsound enthusiasts – like you. https://handpan-timeline.org 4. More questioned answered in the updated FAQ (Frequently asked questions) While things get more complicated, legally, it can be a challenge to get the facts straight. In an effort to disseminate accurate and current information as well as answer some more frequently asked questions, HCU has updated the FAQ page of our website. You can find the updated FAQ here. If you have any questions that feel unanswered and/or could give value to the FAQ page, please feel free to email HCU at info@hcu.global. Sincerely, The HCU administrative group |
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| Dear Handpan Community, Hereby an update on the new developments, Table of contents: – PANArt seized all handpan instruments and shells in process at Ayasa Instruments – PANArt summoned Ayasa Instruments to court in the Netherlands, aiming at a European ruling to use as a precedent against all makers – What this could mean for the future of handpans – Current status action of Bern, Switzerland – Urgent call for a second round of donations to be able to continue the defense! 1. PANArt seized all handpan instruments and shells in process at Ayasa Instruments On the 28th of April a Police officer (Assistant Prosecutor), a bailiff, and a locksmith arrived at Ayasa Instruments and seized all of their handpans, as well as the shells that were in the process of being made into instruments, on behalf of PANArt. Their wish is to have all handpans and shells destroyed by a third party at the expense of Ayasa Instruments, amongst other heavy demands stated below. PANArt initiated what is called a prejudgment seizure. A judge of the Court of Central-Netherlands reviewed PANArt’s claim of copyright infringement and has granted PANArt the permission to seize handpan instruments along with any shells in process until further review. In the Netherlands, a party can demand a seizure without the accused party’s knowledge so that the accused party does not have the time to move/sell their goods before the seizure. The threshold for a judge to allow such a prejudgment seizure is relatively low. The law states that the judge looks “briefly” at the claim, and upon seeing a potential infringement, the seizure will be granted. This is not a final ruling however, it is to ‘conserve’ the instruments and shells until there is a judgment in the proceedings on the merits. These proceedings on the merits have now been initiated (see below) and in those proceedings Ayasa Instruments will be able to defend itself against PANArt’s copyright and infringement claims. 2. PANArt summoned Ayasa Instruments to court in the Netherlands, aiming at a European ruling to use as a precedent against all makers A deadline of 14 days for PANArt to summon Ayasa Instruments to court was set by the judge who granted the seizure. (The initial request of PANArt was for a deadline of 28 days). A bailiff came to hand over the court summons for the proceedings on the merits just in time of the deadline. Ayasa Instruments was hereby summoned to appear before the District Court of The Hague in the Netherlands. The court summons is a 32 page document, including all the claims and arguments made by PANArt.In these proceedings on the merits, PANArt seeks a pan-European infringement injunction, as well as, among other things, destruction of product stock, declaration of sales information and compensation for alleged damage.In summary, they are requesting that Ayasa Instruments pays for:the destruction of all their own products (completed instruments and any shells)all of PANArt’s court and lawyer feesany damages PANArt claims to have suffered10,000 euros every day they continue to sell their instruments. You can find all the claims in this translated pdf document. HCU has been in close contact with the lawyers at Bird & Bird since the seizure. The Dutch team of Bird & Bird is fully up to speed with the case and are looking into all possibilities to make sure the best defense is given. The court date requested by PANArt is the 16th of June, although that date only indicates the beginning of these proceedings on the merits; Ayasa Instruments will then be given a term to respond to PANArt’s claims. As soon as we have more information about the case we will share that via newsletters. 3. What this could mean for the future of handpans As with all cases so far, this case is a cause for great concern. If PANArt wins this case against Ayasa Instruments, it could become a precedent case for the European Union and beyond. With the new claims against Ayasa Instruments, together with all other ongoing cases and specifically with the intent of having all handpans destroyed and to stop all future creations, the entire instrument with all of its facets is under direct threat! A precedent case could end handpans in the European Union rather quickly. Every maker in the European Union could be legally pursued like Ayasa Instruments, with the same legal claims. 4. Current status action of Bern, Switzerland: The action of Bern is most likely going to be a long process considering all the parties involved at this moment. Last week PANArt’s deadline to submit their statement of defense to the court of Bern expired. We have not received this brief yet which will contain PANArt’s counter-arguments. An oral hearing in these proceedings could then take place after the summer break. We will keep you posted on the further developments once we know more. 5. Urgent call for a second round of donations to be able to continue the defense! Because of the many makers and resellers that have been targeted by PANArt, there was no other way than defending every single one of them either in their home country or in Switzerland. This resulted in exhausting HCU’s funding quicker than expected. At this point there is already an outstanding bill with the law firm for which funding still needs to be gathered and we can expect many more bills to come; expecting PANArt will not stop their actions. If there is no big second round of donations the result could be a loss by financial forfeit–if we cannot pay our legal team, we cannot defend the handpan instrument anymore. The initial fundraising was fantastic and it gave us a chance to find our footing and get on the same legal playing field. With that funding we were also able to come to the defense of over a dozen makers and distributors across Europe. These legal defenses are still ongoing, but if PANArt is granted any decision by a judge in their favor, it could mean a domino effect for all the current legal cases. That is why each case against any maker or reseller anywhere in the world needs to be defended in the best way possible. We invite and sincerely urge everyone to make a donation if you can, all amounts are welcome. This time we would like to specifically ask makers and resellers who didn’t donate yet but also who have donated already. Now is a time to ask yourselves, how much is it worth for you to keep following your passion to create or resell these instruments? The risk of losing your livelihood/passion is very real and the only way to prevent this is by acting together now. Together we are stronger and we can keep the passion and community alive. Donations can be direct or through the crowdfunding page: GoFundMe Crowdfunding For direct donations you can transfer to: “Stichting Handpan Community United” IBAN: NL62BUNQ2049174195 Sincerely, The HCU administrative group |
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:
1. Numerous Swiss Handpan Makers and Retailers received letters from PANArt’s Lawfirm
Around the 15th of December of 2020, numerous Swiss handpan makers and retailers received a letter from PANArt’s lawfirm. The letters required the receivers to stop all of their handpan related activities by the 31rst of December 2020. We are happy to say that, as far as we know, everyone who received a letter got in touch with HCU and were offered support. Read more below.
2. Two New Actions filed at the Court of Bern by HCU
The HCU filed two more actions against PANArt – one for mainly German handpan retailers and one for the Swiss makers and retailers that received letters from PANArt in the past (mentioned above). This way we want to avoid that smaller makers or retailers are singled out and targeted in court separately.
These two new actions include all the argumentation and documentation from the first action filed at the Court of Bern, (the parties in the first action are Ayasa Instruments, Yatao Shop and World of Handpans), plus the individual documentation of each handpan maker and reseller including each handpan that were offered for sale. As written in an earlier newsletter the goal of the actions in Bern are:
“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.”
3. More funding needed (The Outcome of these proceedings will determine the future of anyone who builds handpans – help us to continue)
HCU continues to defend those who are receiving legal threats from PANArt but this is still just the beginning. After even more individuals received letters from PanArt last month, there are now many parties defended by HCU with potentially more to come. In order to continue our work, we will need more funding. Daniel of Soma Sound Sculptures, a recent recipient of a legal letter in Switzerland, said it best:
“The widely spread written warning letters issued and sent by Panart‘s top-tier lawyers to handpan builders and distributors in Germany and Switzerland make it seem very likely to me that Panart is serious in their determination to stop the distribution of handpans, at least in Europe. This would mean that no more handpans could be distributed within the continent and handpan building and distributing would be considered an act of illegal piracy within Europe.If Panart wins the legal dispute here, who knows, they may want to continue elsewhere in the world too.
In just a few months time, exceptional legal work done by HCU and its team of lawyers has created a temporary umbrella of protection for global handpan builders and distributors. The real challenge in the pursuit to save the handpan, however, is yet to come: the decision in the court case in Bern/ Switzerland will be a very important milestone for either side in the legal dispute. It is therefore of paramount importance to be at least equally well prepared as our legal opponents. Hence, more funding is unfortunately necessary. If the handpan is close to your heart, please consider donating to the crowdfunding campaign.”
HCU will continue ‘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’ but in order to do so we need continued financial support. If you have yet to make a donation please consider doing so now to the HCU GoFundMe campaign. For making a direct donation please read our previous newsletter.
Sincerely,
The HCU administrative group
Dear Handpan Community,
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:
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.”
Listen to Ron Kravitz tell the story on The Handpan Podcast at 47m45s at https://www.sylvainpasliermusic.com/post/panart-history-with-ron-kravitz-hang-distributor
Transcript:
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.”
Best wishes to all of you and merry Xmas,
The HCU administrative group
Dear Handpan Community
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:
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.
We will need additional funds to see this through to the end. The GoFundMe campaign has no end time and donations are welcome at any time here: https://www.gofundme.com/f/bf7f6-save-the-handpan-help-handpan-community-united
4. Frequently Asked questions about HCU (FAQ)
For what is the funding needed?
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
The letter that was sent to Ayasa Instruments on 21-09-2020 has been published on the resources page of HCU, you can find it here: https://hcu.global/letter-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.
Stay with RAV,
The RAV Team
The ruling of Berlin has been uploaded to our resource page, check it out here: https://hcu.global/berlin-court-ruling/
Best wishes to all of you, HCU administrative group
| Dear Handpan Community, 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 |
PANArt’s view on copyright