Frequently asked Questions answered on 20-08-2021
What is the HCU?
Handpan Community United (HCU) is a non-profit organization and was founded to defend the handpan community against a copyright claim on the shape of handpans by the Swiss company PANArt.
Who are the members of the HCU?
Handpan Community United stands for and includes people who have an affection for the handpan instrument and believe in our 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
Who is PANArt?
PANArt is a Swiss company that builds instruments. It is run by Felix Rohner and Sabina Schärer. They started off as makers of steelpans, which are percussion instruments originating from Trinidad.
What is the “Hang”?
The “Hang” is a musical instrument developed by former Steelpan makers Felix Rohner and Sabina Schärer. Hang is a Swiss word for hand. The term “HANG” is a registered trademark of PANArt.
Since when does the Hang exist?
It was first built by PANArt in the early 2000s. As far as we know, PANArt developed the instrument together with Swiss musician Reto Weber following his wish to have a robust percussion instrument made of steel that had several tone fields and could be played with the hands.
What is a handpan?
Handpan is commonly used as a generic term for the instrument. “Hang” is the name of the instrument built by PANArt. Other instrument makers build handpans.
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!
PANART, COPYRIGHT AND THE HANG
Does PANArt still build their “Hang”?
In 2013, PANArt announced that they would officially stop building the Hang. The article on their website was later taken down around 2019(?).You can still find information about this on the “Hangblog”, a website by PANArt associate Michael Paschko.
In 2019, PANArt published a new article, stating that the Hang is still being built. It therefore seems like PANArt has resumed building their “Hang” handpan.
What is PANArt’s copyright claim and what would it mean if PANArt was granted the copyright?
PANArt claims copyright protection of the general shape and setup of the “Hang” because they believe the “Hang” to be a work of applied art. They have therefore started calling their “Hang” a “sound sculpture” instead of a musical instrument.
Copyright is a form of protection for “works”. Works are personal artistic creations, such as literary, dramatic, musical, architectural, sculptural, and audiovisual creations. Objects of everyday use with primarily functional elements are in most cases not copyright protected.
PANArt claims that their “Hang” is a work of applied arts, meaning an object of use which however still enjoys copyright protection because it represents an artistic creation (as opposed to a handicraft production). PANArt therefore claims to have the exclusive (and worldwide) rights to build the “Hang” or any handpan which has essentially the same features.
If this claim was granted, it could mean that most handpans as we know them would become illegal copies of the “Hang”. This would have far-reaching consequences. Building or selling handpans with the current shape could become illegal. The “Hang” (which they officially stopped producing in 2013) could become the only legal handpan. It could also become possible for PANArt to limit public display of handpans and the “Hang”, including videos or concerts.
However, the fact that PANArt asserts copyright claims does not mean that they have such claims. We strongly believe that their claims around the “Hang”’s copyright are unfounded. Several handpan makers and sellers therefore refused to comply with PANArt’s recent requests to stop their business and are contesting PANArts claims.
The PANArt “Hang” – our point of view of the copyright question
Handpans and the “Hang”, are musical instruments. The “Hang” was developed in accordance with the ideas and the requirements of musicians. Its design was developed on the basis of acoustical and ergonomical necessities of a musical instrument. The design of the “Hang” therefore fulfils several technical and functional requirements of the instrument. It is therefore in our view not protected by copyright.
Why do you believe that the “Hang” is an object of use/musical instrument and its design based on technical necessities?
The development and process that led to the “Hang” was described by Felix Rohner and Reto Weber in the 2006 documentary “Hang – A Discreet Revolution”. It seems obvious that, as with other musical instruments, the shape of the Hang was chosen to accommodate a musician’s ergonomics and the instrument’s acoustics, Felix himself describes the process in the interview.
Excerpt from “Hang – a discreet revolution” documentary from 2006
Felix: “[Reto Weber] came to see what we were doing in our workshop. He came in with a Steelpan, which he also played at the time. He wanted it tuned. And he looked around and he said: ‘I appreciate what you’re doing, but have a look at this.’ He picked up his Ghatam. We watched him. I didn’t know this instrument. And he began to play.
And he said: ‘Couldn’t you make something for those of us who play with our hands? Couldn’t you give your sounds to us? Make an instrument – a ghatam with notes?’ “
Reto: “And then Felix asked: ‘Do you have an hour?’. And then he brought an enormous thing. The first Hang was huge. I remember – we still have it somewhere. That was the moment this whole project was born with the simple idea I had around a Ghatam. Felix and Sabina continued to develop it and that’s what turned into the Hang.”
Felix: “We put together two step pan hemispheres that we had lying around. We made a sphere and fixed it in the center. [Reto] loved it. There was the sphere. The sounds were there. The hand could touch the metal. A new dimension. Now the path has started. The first question was: Can anyone actually play this? It was too big. ‘It is too fat!’ Said the musicians. The instrument is brilliant, but you have to make it smaller. Then there was the question of the bass notes. It didn’t work – too much air. So we made it smaller.”
Why don’t handpan makers simply change the shape?
It is our legal opinion that there is no copyright to the “Hang”. The individual features of the handpan fulfil technical or functional requirements and PANArt therefore cannot claim exclusivity on them. There is thus no need to change any handpan.
We think it’s great if handpan makers experiment with other shapes, but that does not mean that they have to abandon the handpan. The handpan is a musical instrument that consists of its essential functional elements and everybody can make use of these functional elements. In the same way, a viola is shaped similarly to a violin, to a cello, to a double bass. In the same way, many drums are round. In the same way, the keyboard on a piano has the same pattern as the keyboard on a melodika and so forth.
Each of these instruments’ shape is based on the ergonomic necessities of the player and the acoustic properties that give a good sound. You can cut off an edge from a drum and still somehow make it work as a musical instrument, but it would be a different instrument and it would be less comfortable to play and more complicated to build. You can erase the resonance holes from a violin and still somehow make it work, but again it would sound worse.
If new shapes are found and developed, we believe that it should have the time and space to develop naturally over the years, just like PANArt built steelpans for 25 years before developing their “Hang”. We believe that builders are allowed to use the current shape, just like PANArt was allowed to use the shape of the steelpan. Experimentation and new developments are already happening and will continue to happen organically.
PAST AND ONGOING LAWSUITS
There was a legal case between PANArt and Echosoundsculpture (ESS) in Switzerland. Has PANArt’s copyright claim been confirmed?
There has in fact been a legal case between PANArt and ESS in which PANArt claimed an infringement of their copyright. This case was however not decided by a court. There is no judgement confirming copyright – and even if there was it would only be binding between PANArt and ESS.
In the case of ESS the matter was settled and therefore did not end with a court decision. Ezahn from ESS agreed to make certain changes to his design to avoid a further legal battle with PANArt. The differences included changing the position of the port hole and slightly modifying the design of the tone fields as well as the oval shape of the central dome.
You can read PANArt’s publication on the topic here:
What about PANArt’s lawsuits in Germany? Did they win several cases and did the courts back up their copyright claims?
After the case with ESS PANArt stated that ‘The handpans produced by EchoSoundSculpture since then can now be clearly distinguished from works by PANArt.’. However, PANArt seems to have changed their mind later on as they now aim at a much broader scope of protection of their alleged copyright in the more recent proceedings. They particularly also think of the basic lens shape of handpans as being part of their alleged copyright.
As a first step of enforcing their alleged copyright, PANArt chose to use preliminary injunction proceedings in Germany. These proceedings are rather cheap and have two particularities: They do not necessarily require the respondent to be part of the proceedings and they require a lower degree of proof. PANArt could therefore request a preliminary court decision without needing to fully prove their copyright.
PANArt made use of these particularities and chose their targets wisely, going after two foreign (from Russia and China) and two German sellers. In three of these proceedings the Court issued a decision without hearing the other side.
In the case of Emanuel Eitle from World of Handpans, the court of Hamburg summoned an oral hearing with both sides present. In this hearing it became obvious that PANArt had prepared for a larger copyright campaign. They were represented by two Swiss lawyers of a large law firm and additionally by a larger German law firm. Meanwhile, Emanuel Eitle could not afford to work with a big law firm. In these proceedings, the court of Hamburg preliminarily decided that PANArt had a claim against Emanuel Eitle’s company, however not against himself. This decision remains an interim one and is only binding for the parties to the proceedings.
In summary, three of the four court cases in Germany were no-shows in which the court granted PANArt their claims without PANArt’s assertions being challenged by the respective defendants. These claims were limited to preliminary injunctions, meaning that the other party was (preliminarily) ordered to stop from selling particular handpans. They were also limited to the territory of Germany. We believed this matter should be sorted on equal footing, hence HCU was founded and hired the international law firm Bird & Bird.
What’s the deal with the recent raid on Ayasa Instruments in the Netherlands? Has PANArt won a court case for this to be granted?
No, this matter has not been litigated in a Dutch court yet. Under Dutch law it is possible for a party to request the seizure of another party’s assets without having to litigate on the question of copyright first. One does not have to fully prove its claims either. The Court only superficially examines whether there is the mere possibility of a copyright infringement for granting the seizure. Only afterwards will the matter be litigated in court and the copyright has to be proven by PANArt. This has not happened yet in Ayasa’s case. However, the seizure is being challenged in court now and there will be a decision in due course.
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.
FUNDING AND POLICY OF THE HCU
How is the HCU financed?
By crowdfunding and direct donations
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.
Why does the HCU support business XYZ, their moral/ethics are not in line with the wellbeing of the handpan community?
In regards to copyright, there is no way to separate handpan builder/reseller X from handpan builder/reseller Y.
If one builder/reseller loses in court, the court ruling will affect other builders/resellers as well.
While we agree that it’s important to keep ethical standards in the handpan world, the business-ethics question is a separate topic from the copyright claim. For now, our goal is to defend against this copyright claim in the best possible way, which means that at this point we can’t afford to judge every business/entity in regards to their business ethics and decide on a case by case basis.
Some more relevant facts
-Today there are hundreds of handpan builders around the world and the lives of countless families are supported by their work.
-Many of today’s handpan builders started to tune because PANArt either didn’t want to sell a Hang to them or they refused to service their Hang.
-In order to stay in tune, most Hang and handpan need regular tuning. PANArt officially stopped any retuning of existing Hang in May of 2011, abandoning thousands of Hangs and leaving countless musicians with unusable instruments.
“Therefore, we are discontinuing our tuning service. ” – The Call of the Iron
-Various people were refused service of their instrument because they had somewhere called the Hang a “Hang drum”
Quotes from PANArt throughout the years:
Felix Rohner in an interview with Coopzeitung 13.01.2020:
“The Hang is a gift I’d say, this lens is a gift. Nobody invented it.”
“Once more, we have not and will never try to prevent Handpan Makers from producing handpans and using nitriding outside our patented parameters.:
Felix Rohner, November 2017 in an email to Kyle Cox from Pantheon Steel
“The Hang is a new musical instrument. Individuals around the world appreciate it. There are two Hangmakers worldwide. It is impossible to satisfy the growing demand. Further collaboration between art and science is needed to make it possible that other Hangmakers may exist in the future.”
Felix Rohner and Sabina Schärer , HISTORY, DEVELOPMENT AND TUNING OF THE Hang, ISMA 2007 (https://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.555.2579&rep=rep1&type=pdf)
Frequently asked Questions answered on 18-09-2020
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:
Duncan Arnot (Meridian Handpans)
Ralf van den Bor (Ayasa Instruments)
Kyle Cox (Pantheon Steel)
Colin Foulke (CFoulke)
David Kuckhermann (Handan Dojo)
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.
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.