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:
- 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.
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