The Hang®, created by Sabina Schärer and Felix Rohner in 2000, and produced and distributed by PANArt Hangbau AG, Bern, Switzerland, is protected by copyright.
Why this is so, and what it means, we want to answer by means of questions that are frequently asked by suppliers of hand pans and other people interested in the topic.
Who says that the Hang® is protected by copyright?
Whether an object is protected by copyright is decided by the - ultimately highest - courts of a respective country.
The assortment of hand pans, which are mere copies of the Hang®, has increased significantly over the last years. In addition, the European Court of Justice has recently handed down groundbreaking rulings on copyright protection for works with a functional component.
We have therefore decided to take legal action against dealers of hand pans whose products are copies of the Hang® and who refuse to stop selling them.
The district court of Berlin, the district court of Düsseldorf and the district court of Hamburg, (the latter after conducting a court hearing), have judged the Hang® to be protected by copyright and have prohibited the distribution of the hand pans complained about. These judgments issued in injunction proceedings are not yet legally binding at the moment.
For these reasons we are of the opinion that the Hang® is protected by copyright, at least in Germany, and if necessary we will also take legal action against other suppliers of hand pans, that are mere copies of the Hang®.
Does this protection also apply outside of Germany?
The recent European Court of Justice rulings mentioned above are of course also valid in all other EU countries and have an impact beyond.
PANArt is therefore convinced that the Hang® is also protected by copyright outside of Germany, namely also in Switzerland, and will, if necessary, take legal action against other suppliers of hand pans who are mere copies of the Hang®.
By the way, copyright protection must be distinguished from trademark protection: the first concerns the shape and is symbolized by a ©, the second, symbolized by a ®, the name of a product.
What must be changed on a hand pan to avoid copyright infringement?
The hand pans, for which a copyright infringement has been established to date, differ from each other in details. They vary in colour, in shape of tone fields (sometimes more round or more oval) or in their number, the shape of the central dome (round or elliptical, single or multi-stepped), the size of the opening (with or without a neck), the thickness of the material and its external masses. Some carry a brass ring, others a cord or plastic rim protector. Nevertheless, the judges have each found a copyright infringement.
Copyright law requires that the personal traits of the original must "fade away" from the newly created work. The features of the new work must come to the fore. Only then can one speak of permitted inspiration.
But PANArt encouraged the manufacturers to make their own hand pans, didn't they?
We very much welcome it when people become creative themselves. We have always encouraged people to find their own language - to develop their own forms and let their own music sound. The revolutionary art, which has its roots in Trinidad, should be carried on. But this does not mean copying our intellectual property. It means to participate in this exciting history with an original and innovative contribution.
We are setting a good example, and with our new sound sculptures Hang® Gubal, Hang® Bal etc. we have broken the lens shape ourselves over the last eight years and created new sound bodies that differ considerably from the Hang®.
Why is PANArt only now asserting its copyright?
Only a few years after the Hang® was published, PANArt fought against copyists and pointed out that the Hang® is the intellectual property of Sabina Schärer and Felix Rohner.
Unfortunately, apart from the details, there is no development in the design of the hand pans and we no longer want to watch copyists riding the wave of success of our intellectual property as mere free riders.
Moreover, the European Court of Justice has only recently confirmed our view that functional works such as the Hang® are also protected by copyright.
Why did PANArt offer a license to manufacturers of hand pans?
PANArt has patented the process by which its material for its works is produced and has offered this patent for licensing.
However, a license to a patent for the production of a material is no permission to copy the copyright protected form of the work produced with this material, or to use its trademarked name.
People all over the world are touched by the form and the sounds of the Hang®. Does PANArt now want to monopolize the access to these sounds?
No, absolutely not. The sound of a hand pan is determined by many parameters. Decisive is the material and the art of hammering. The shape of the Hang® on the other hand is freely chosen. To produce similar sounds, neither the lenticular shape of the Hang®, nor the circularly arranged tone fields, nor the dome are required. Countless other shapes are conceivable and feasible to produce the same sounds.
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 Berne 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".
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. There design is rather the expression of their 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 Berne Convention, as recently confirmed by the European Court of Justice 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.
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.
How does PANArt define the scope of its copyright on the Hang®?
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®:
- the basic lenticular shape, consisting of two spherical segments;
- a central dome (Ding);
- an opposite opening (Gu);
- the sound fields arranged in a circle on the upper spherical segment;
as visualized here:
Do I make myself liable to criminal prosecution if I own, acquire or publicly play a counterfeited Hang®, i.e. a so-called Handpan?
The Hang® is protected by copyright against production, distribution, advertising and public access to copies not authorised by PANArt, both under civil law and, if carried out commercially and willfully, under criminal law.
Besides the fact that the private use of a counterfeit is not punishable, PANArt has never initiated criminal prosecution against commercial providers of counterfeits and does not intend to do so in the future.
If you purchase and play a handpan, you should be aware that it is merely a counterfeit of the Hang® and that by doing so you are supporting an industry that disregards the intellectual property of Sabina Schärer and Felix Rohner and is obviously not able to be innovative and contribute to the world with original creations.
Why did PANArt initiate a seizure of counterfeits of the Hang sculpture at Ayasa?
Ayasa Instruments B.V., a Dutch company with ten employees, produces counterfeits of the Hang Sculpture ("Handpans") as well as corresponding parts, which it distributes worldwide.
Warned by PANArt for copyright infringement, Mr van den Bor of Ayasa asked Sabina Schärer and Felix Rohner of PANArt for a meeting, ostensibly to find a peaceful solution. However, at this meeting on 10 October 2020, no rapprochement took place and the granting of a licence was refused by PANArt. It later emerged that Ayasa, advised by one of the world's largest law firms, had already prepared a lawsuit against PANArt before this meeting, formed the "Handpan Community United (HCU)" and launched a crowdfunding to finance a large-scale court case against PANArt.
The 233-page lawsuit, with which Ayasa and other manufacturers and dealers of counterfeit products want to establish that the hang sculpture is not protected by copyright or that their products do not fall within the scope of protection of any copyright, was filed with the Commercial Court of the Canton of Bern on 29 October 2020, just a few days after the meeting.
With this procedure, the plaintiffs presumably want to buy themselves time to be able to sell their counterfeits for as long as possible and also to protect themselves from further injunctions, such as those already issued by the courts in Berlin, Hamburg and Düsseldorf against German manufacturers or dealers of counterfeits.
Against this background, and because the hang sculpture is also protected by copyright in the Netherlands, PANArt initiated a seizure of the counterfeits and parts stored at Ayasa on 28 April 2021.
We hope that people inspired by the Hang® will develop hand pans that express their own personal character. Only then will innovation take place which alone is the justification of copyright.
Sabina Schärer and Felix Rohner