If the adoption of existing solutions is preferred, jurisdictions such as Australia could consider providing an exception for fair use – this may reduce the exposure of social media users to the risks of copyright infringement.21 Although the fair use exception in the US has been criticised for its open-ended nature, it has been applied by courts extensively over decades.22 To this end, the Australian Law Reform Commission has recommended in its report on copyright reform that the fair use exception be introduced as an extension of Australia's existing fair dealing exceptions – as, among other things, the flexible fair use exception would be more responsive to technological changes.23 This recommendation has been provisionally endorsed by the Productivity Commission.

If fair use is not enacted, an alternative will be to introduce a more specific exception to copyright infringement for UGC (ie, user-generated content) which allows a user to create new content using publicly available copyright works under specific conditions, as in Canada.24 Although there are some uncertainties brought forth by its qualitative conditions (ie, whether it is *reasonable* in the circumstances to mention the source of a copyright work, and whether a user had *reasonable grounds* to believe that the existing copyright work, or copy of it, does not infringe copyright),25 such an exception can have the effect of exempting more contentgenerative activities on social media from copyright infringement than is the case in its absence.26 Notwithstanding its shortcomings, the exception can provide social media users with the greater peace of mind they need to engage in content-generative activities, unlike the fact-based analyses leading to uncertain applications in many fair dealing scenarios.27

In the UK, while no specific exception for UGC has been introduced, the status of UGC was considered in two recent reviews of copyright laws in the UK, both of which recommended the adoption in the UK of new fair dealing exceptions.28 Following subsequent consultations, copyright law reforms were implemented in 2014, including the introduction of new fair dealing exceptions for the purposes of quotation, as well as for caricature, parody or pastiche.29 As illustrated under scenario one, some content-generative activities are probably exempt from copyright infringement by virtue of the latter exception (ie, for caricature, parody or pastiche),30 and in certain limited circumstances might also, or alternatively, benefit from the former (ie, for quotation).31

The UK reforms suggest that another alternative to fair use is to expand the fair dealing exception for the purpose of parody or satire in Australia32 to include pastiche, as in the case of the UK.33 Arguably, further consideration should also be given to designing an exception for the purpose of quotation which is along the lines of the limited form adopted in the UK.34 Indeed, a quotation exception appears to be mandated under article 10 of the *Berne Convention*. 35 The introduction of an exception for the purpose of quotation has been explored in Australia.36 Such an exception, I note, will only exempt social media uses in the limited circumstances that the conditions for its availability are satisfied. This may be difficult for the conditions which relate to the compatibility of the relevant use with fair practice,37 and to the justification of the extent of the use by its purpose.38

While I have highlighted earlier that the condition of availability to the public is not likely to bar an exemption,39 the last condition (ie, the need to attribute the source and the author)40 might well in many instances. Nonetheless, my view is that these conditions, including that for attribution in a quotation exception, should remain, since they seemingly reflect fair practices and preferences. As mentioned earlier, social media users like to identify with the content they create.41 Although I have outlined some approaches to copyright reform that can reduce the risks of copyright infringement to which social media users are exposed, the specific direction copyright reform (whether in Australia or in any other jurisdiction) should take and its implications on content-generative activities on social media fall beyond the scope of this book. Instead, this could be the subject of future research.

Yet another possible solution to address any potential unfairness of exposing social media users to copyright infringement for their contentgenerative activities is to acknowledge more explicitly the regulatory role of social media platforms. This provides a basis upon which one can call upon these platforms to play their part in ensuring the continuing relevance of laws such as copyright in regulating content-generative behaviours – and additionally in safeguarding users' rights in this digital space. In line with what Elkin-Koren has argued, granting online intermediaries that benefit from the distribution of copyright-protected content immunity from infringement under safe harbour provisions is no longer sufficient to ensure the free flow of information.42 Because of the risks users face, including the risk of partial enforcement by the online intermediaries themselves,43 online intermediaries should be subject to duties owed to users to honour the rights of users – among other things, to share and access content.44

The first step in this direction will be for social media platforms to take more care in ensuring that the regulatory factors that they design and with which users interact – such as the TOS and the technological features – convey a more consistent message to their users as to the activities that are legitimate on these platforms.45 Given that such platforms are observed to have a huge influence over the content-generative behaviours of their users, any solution arrived at should see them shoulder a fairer burden of the risks resulting from the business models from which they have selected and benefited.46 Social media platforms can continue working towards making their TOS more comprehensible for social media users. This may, however, be of limited effect, in view of the fact that many users do not read the TOS.47 Among the five platforms studied in this book, YouTube makes the most resources on copyright laws available to its users.48 These resources provide useful information to assist discerning users with navigating the risks of copyright infringement on the YouTube platform.49

Another way is to rely on the influence of the technological features as a regulatory factor, and to use these features to prompt users to consider specific copyright issues at suitable junctures when they create, modify or disseminate content on social media.50 For instance, when a user downloads the video clips of other users on YouTube and creates a new video clip using snippets from each of the downloaded video clips with the video editing tool available to him or her, prompts could be given to the user along with his or her creation of the new video clip, ensuring that the user makes an informed decision when generating content. Beyond prompting users to take copyright issues into account, technological features can potentially be designed to eliminate user autonomy altogether, such that the decision to engage in content-generative activities which can infringe copyright laws no longer lies with the user in question.51

The copyright policies incorporating copyright laws such as the *DMCA* can thus be reinforced, in different ways, through the use of smart technologies embodied within the technological features available to users. Adopting such solutions reflects the understanding that users are vulnerable to influence from social media platforms. It also acknowledges that copyright laws may have to be backed by the technological features on these platforms in order to continue to be an effective regulator of the content-generative behaviours of social media users. The specific steps the platforms should take fall beyond the scope of this book, and again could be the subject of future research.

In this sense the book provides cause to reflect on the potential widespread illegality of the content-generative activities in which social media users engage with regularity. It also points to examining the underlying core policy behind the regulation of online intermediaries, such as social media platforms. Ideally the book will stimulate more critical reflections on how laws (including laws other than copyright) should develop to take into account the influence of social media platforms on user behaviours through reform that gives users more leeway for the activities in which they engage. This could give rise to interesting insights that will benefit law reformers and scholars interested in legal issues on social media; it will also appeal to a broader audience (including users of social media platforms) interested in the application of laws to their activities on these platforms. These reflections are crucial – not just to secure the survival of laws such as copyright, but also to ensure the continuing attraction of social media platforms as enabling avenues for creative play and free expression.

### **Notes**

### Bibliography

### I. Articles/Books/Reports

#### A. Articles

Gaver, William W., 'Technology Affordances' (1991), *CHI'91 Conference Proceedings* 79

Wauters, Ellen, Eva Lievens and Peggy Valcke, 'Towards a Better Protection of Social Media Users: A Legal Perspective on the Terms of Use of Social Networking Sites' (2014) *International Journal of Law and Information Technology* 1

Zittrain, Jonathan, 'The Generative Internet' (2006) 119 *Harvard Law Review* 1974

#### B. Books

Bently, Lionel and Brad Sherman, *Intellectual Property Law* (Oxford University Press, 3rd ed., 2009) Briggs, Asa and Peter Burke, *A Social History of the Media* (Polity Press, 3rd ed., 2009)

Black, Julia, *Rules and Regulators* (Oxford University Press, 1997)

Black, Julia, 'The Rise, Fall and Fate of Principles-based Regulation' in Kern Alexander and Niamh Moloney (eds), *Law Reform and Financial Markets* (Edward Elgar Publishing, Cheltenham, UK, 2011) 3

Brown, Lesley (ed.), *The New Shorter Oxford English Dictionary* (Clarendon Press, 1993)

Brownsword, Roger, 'So What Does the World Need Now?' in Roger Brownsword and Karen Yeung (eds), *Regulating Technologies* (Hart Publishing, 2008) 23

Brownsword, Roger, and Karen Yeung (eds), *Regulating Technologies* (Hart Publishing, 2008)

Brownsword, Roger, and Karen Yeung, 'Tools, Targets and Thematics' in Roger Brownsword and Karen Yeung (eds), *Regulating Technologies* (Hart Publishing, 2008) 3

Burgess, Jean, 'YouTube and the Formalization of Amateur Media' in Dan Hunter, Ramon Lobato, Megan Richardson and Julian Thomas (eds), *Amateur Media: Social, Cultural and Legal Perspectives* (Routledge, 2013) 51

Bygrave, Lee A., *Internet Governance by Contract* (Oxford University Press, 2015)

DeNardis, Laura, *Protocol Politics: The Globalization of Internet Governance* (The MIT Press, 2009) DeNardis, Laura, *The Global War for Internet Governance* (Yale University Press, 2014)

Dutton, William (ed.), *Oxford Handbook of Internet Studies* (Oxford University Press, 2013)

Goffman, Erving, *The Presentation of Self in Everyday Life* (Doubleday Anchor Books, 1959)

Hetcher, Steven A., *Norms in a Wired World* (Cambridge University Press, 2004)

Hildebrandt, Mireille, 'A Vision of Ambient Law' in Roger Brownsword and Karen Yeung (eds), *Regulating Technologies* (Hart Publishing, 2008) 175

Rawls, John, *A Theory of Justice* (Oxford University Press, 1997)

#### C. Reports

Copyright Law Revision Report No. 94 – 1476 (Mr Kastenmeier) (1976, House of Representatives) Directorate for Public Governance and Territorial Development, 'OECD Reference Checklist for Regulatory Decision Making' (Report, Organisation for Economic Co-operation and Development, 1995)

#### D. Others

American Law Institute, *Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes* (2007)

American Law Institute, *Restatement (Second) of Conflict of Laws* (1998)

### II.  Other cases

*Gestevision Telecinco SA and another v YouTube LLC*, Case 11 / 2014 (Madrid Court of Appeal (Civil Division), 14 January 2014)

*Tod's SpA v Heyraud SA*, Case C-28/04, 2005 ECR I-05781

### III. Legislation

A. US legislation

*Berne Convention Implementation Act*, 17 USC § 101 (1988) *Code of Federal Regulations*, 37 CFR § 202.1 (1991) *Copyright Act*, 17 USC (1976) §§ 101–810 *Digital Millennium Copyright Act*, 17 USC § 512 (1998) *United States Constitution*, art I § 8, cl 8 (1787) *Visual Artists Rights Act*, 17 USC § 106A (1990)

#### B. UK legislation

*Contracts (Rights of Third Parties) Act 1999* (UK) *Copyright, Designs and Patents Act 1988* (UK) c 48 *Statute of Anne 1709* (UK) c 19, as repealed by the *Copyright Act 1842 The Copyright (Application to Other Countries) Order 1993* (UK) SI 1993/942 *The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014* (UK) SI 2014/2361

#### C. Australian legislation

*Copyright Act 1968* (Cth) *Copyright (International Protection) Regulations 1969* (Cth) *Insurance Contracts Act 1984* (Cth) *Property Law Act 1969* (WA) *Property Law Act 1974* (Qld) *Property Law Act 2000* (NT) *Telecommunications Act 1997* (Cth)

#### D. Other legislation

*Copyright Act*, RSC 1985, c C-42

### IV. Treaties/Supranational materials

*Agreement on Trade-Related Aspects of Intellectual Property Rights*, signed 15 April 1994 (entered into force 1 January 1996)

*Berne Convention for the Protection of Literary and Artistic Works*, signed 9 September 1886 (entered into force 5 December 1886)

*International Covenant on Economic, Social and Cultural Rights*, 993 UNTS 3 (16 December 1966) *Regulation (EC) No 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and*

*Enforcement of Judgments in Civil and Commercial Matters* [20 December 2012] OJ L 351/1

*Universal Declaration of Human Rights*, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948)

*WIPO Copyright Treaty*, signed 20 December 1996 (entered into force 6 March 2002)

*WIPO Performances and Phonograms Treaty*, signed 20 December (1996) (entered into force 20 May 2002)

### V. Others

ClipConverter.cc, *Free Online Media Recorder* <http://www.clipconverter.cc/>

Facebook, *Government Requests Report* <https://govtrequests.facebook.com/>

Pinterest, *Transparency Report <*https://help.pinterest.com/en/articles/transparency-report> Pinterest, *Terms of Service* <https://about.pinterest.com/en/terms-service>

Pinterest Blog, *Pin a Video!* (22 May 2013) <https://blog.pinterest.com/en/pin-video>

Twitch, *Twitch* <http://www.twitch.tv/>

Twitter, *Help Center: Copyright policy* <https://support.twitter.com/articles/15795#>

Twitter, *Help Center: I'm missing Tweets* <https://support.twitter.com/articles/277671#>

Twitter, *Help Center: New user FAQs* <https://support.twitter.com/articles/13920#>

Twitter, *Help Center: Posting a Tweet* <http://support.twitter.com/articles/15367-posting-a-tweet> Twitter, *Privacy Policy* (27 January 2016) <https://twitter.com/privacy>

Twitter, *Tweets in broadcast* <https://about.twitter.com/company/broadcast#>

Twitter, *Twitter* <https://www.twitter.com>

Twitter Blogs, *Twitter's New Terms of Service* <https://blog.twitter.com/2009/ twitters-new-terms-service>

UGC Principles, *Principles for User Generated Content Services* <http://www.ugcprinciples.com/> United States Copyright Office, *eCO Registration System* <http://copyright.gov/eco/>

Wikimedia Foundation, *Contact us* <https://wikimediafoundation.org/wiki/Contact\_us>

Wikimedia Foundation, *WikimediaAnnounce-L: Announcements and Reports of the Wikimedia Movement* <https://lists.wikimedia.org/mailman/listinfo/wikimediaannounce-l>

Wikipedia, *Blog* <https://en.wikipedia.org/wiki/Blog>

Wikipedia, *Copyright Alert System* <https://en.wikipedia.org/wiki/Copyright\_Alert\_System>

Wikipedia, *Help: Books* <https://en.wikipedia.org/wiki/Help:Books>

Wikipedia, *Help: Editing* <https://en.wikipedia.org/wiki/Help:Editing>

Wikipedia, *Help: File Page* <https://en.wikipedia.org/wiki/Help:File\_page>

# Appendix 1 Screenshots of the technological features

### I. Technological features

*A. Technological features that encourage content-generative activities*

### *1.  Modification*

**Image 13** Facebook

**Image 14** Facebook

**Image 15** Pinterest

**Image 16** Pinterest

**Image 17** Pinterest

**Image 18** YouTube

**Image 20** Twitter

**Image 21** Wikipedia

#### *3. Dissemination*

**Image 22** Facebook

**Image 23** Facebook

**Image 24** Pinterest

**Image 25** YouTube

**Image 26** Twitter

**Image 27** Wikipedia

### *B. Technological features that constrain content-generative activities*

*1. Limiting the modification of content*

**Image 28** Facebook

**Image 29** Pinterest

**Image 31** YouTube

**Image 32** Twitter

### *2. Limiting the opportunities to engage in further content-generative activities*

**Image 33** Twitter

**Image 35** Twitter

*3. Allowing for requests to remove content*

**Image 36** Facebook

**Image 37** Facebook

**Image 38** Facebook

**Image 39** Facebook

**Image 42** Pinterest

**Image 43** Pinterest

**Image 44** YouTube

**Image 45** YouTube

**Image 47** YouTube

**Image 48** Twitter

**Image 50** Twitter

**Image 52** Twitter

### II. Scenario three: the influence of the technological features

*A. Jane's use of the music video clip on YouTube as her morning alarm*

**Image 53** YouTube

*F. Jane's use of the same collage in her blog post on WordPress*

*G. Zee's contribution to Wikipedia on 'income inequality' using what Jane has written*

#### **Image 55** Wikipedia

Note: Screenshots taken on the Facebook, Pinterest, YouTube, Twitter and Wikipedia platforms respectively, as of 7 June 2017.

### Index

Page numbers in bold indicate tables and appendix

account disabling for repeated infringements 118 adaptations of works right in UK and Australia 44, 72 adapted content, copyright infringement 19 advertiser-supported business models 4, 200 adoption by social media platforms 173 Agence France Presse (AFP) use of Morel's works 120–21 *Agence France Presse v Morel (Morel)* case 52 'amateur creative digital content' (ACDC) reference to UGC 18 American Law Institute (ALI Principles) 58 architectural works 33 'artistic work', recording on any medium 39 arts organisations' views on copyright 166 audio clip, 'swapping tool' by YouTube 139 'audiovisual work' 33 films or cinematographic films 77–8 *Australian Copyright Act* 53, 156, 178, 180, 183 infringement 73, 74 moral rights 49 performance of work, rights 47 removal or altering of electronic rights information 51 right of adaptation 44 same goal as the UK 32 Australian court *Voth v Manildra Flour Mills Pty Ltd* 124 Australian fair dealing exceptions 55 Australian Law Reform Commission 55 fair use exception 202 'author' definition in Australia photograph under *Australian Copyright Act* 37 authorship designation dilemmas 38 automatic enforcement through filtering 156–7 banal words, phrases, language of widespread usage barrier to copyright protection 118 behaviour influence from social media 3 *Berne Convention for the Protection of Literary and Artistic Works* 32, 41, 57, 125 principle of national treatment 41 'bespoke' alarm call on Jane's mobile phone 21 breach of YouTube terms use of 'stills' from video clip 115 broadcasting of work 46

'broadcast' in UK, transmission on internet 33 *Brussels I Regulation*, potential violation of 124 business models, advertiser-supported 4 of social media platforms 5

California, law of the state 125 celebrity blogger Small-Steps 'tweet' about newborn baby 22 Cheryl's use of 'stills' from Jane's video clip as thumbnail images on her website 184 choice of law Restatement (Second) of Conflict of Laws in the US (*Second Restatement*) 122–3 choice of social media platforms 20 collaborative projects 1, 39 blogs, content communities 20 collage creation from photographs taken by others, of sculptures, etc. 54 collage of newborn babies, by Jane Doe access on Pinterest platform and shared 152–53 forming with aid of photo-editing on mobile phone 22–3 'Remedy for an Aging Population' shared on Pinterest, pin-board 23 collage sharing in blog post on WordPress infringement in Australia 76 commentary of Evangeline's posted Facebook creating her own 21, 112–13 comments to video clips on YouTube 119 commercial use of Jane's collage 80 communication rights and social media 47 complex rules of copyright laws 190 computer science 7 concept of authorship 34 Conflict of Laws in Intellectual Property *ClIP Principles* 56–8, 126–7, 188 consensus with copyright laws deterrence of future file-sharing activities 168–9 consent of copyholder need for communication to 'new public' 47 Consistency tables 1 to 12 **178**–**87** content communities 1, 9, **27** content creation 3 'status update' (Facebook) 139 content dissemination social rather than financial motivations 4

content-generative activities 20, 44, 47 across social media **25** behaviour of users 198 collaborative, blogs, content communities social networking sites 28 copyright holding 9, 170 copyright laws applications 20 creation, modification, and dissemination of content 190 encouraged by technological features 176 of Jane and other users 24, 127, 198 licensed under TOS 190 'nudged' to undertake 197 on social media 1, 6–7, 32, 46, 79–80, 138 technological features, impact of 153–4 content-generative behaviours by technological features regulation by copyright laws 5–8, 187 reinforcement of expectation of users Content Id software, scanning video clips 146 available to copyright holders 189 by YouTube 175–6 filtering technologies 156–7 content in social media programmes prejudicial to reputation of copyright holder 175 protected by copyright or not 79–80, 170 published works in Australia 40 removal sometimes erroneous 157 rights to make available to public 54 shared on Facebook, Pinterest, Twitter WordPress and YouTube published works in UK 40 on Twitter, speedy deletion 38–9 textual, image, audio and visual forms 33 content on Wikipedia platform need for source or copyright tag 144 'works of joint authorship' 37 contracting parties, to *Berne Convention* 41 *Contracts (Rights of Third Parties) Act 1999*, UK 120 contractual choice of governing law, support 122 contributor copyright investigation, user request Wikipedia 146 'copies' term, communicable work 42 copyholders' claim for remedies in US non-registration 171 copyrightable content on social media 121 *Copyright Act 1968 (Cth) Australian Copyright Act* 32 *Copyright Act of 1976* in US 32 *Copyright and Rights in Performances (Personal Copies for Private Use)* 55, 71 *Copyright (Application to Other Countries) 41* copyright considerations 138 *Copyright (International Protection)* Regulations 1969 in Australia 41 copyright laws, application 59–72 *Copyright, Patents and Designs Act 1988 UK Copyright Act* 32 'Copyright Center' (YouTube), self-help options 105 copyright disputes relating to content 107–8 'copyright holder' copyright protection not always the case 173–4

guidance questions 58 posting copyright concerns 105 right to perform publicly 45, 119, 174 overreaching rights 188–9 users, conflicting expectations 190 copyright in Australia works to any form of storage, sound, films 39 copyright infringement 5, 183, **183** activities 169, 188 behaviours 199 exceptions to 31 possibilities 154 under *Australian Copyright Act* 182 copyright issues, US, UK , Australia 59–**70** copyright laws 4, 5, 79–80 application in US, UK, Australia 7, 198 comparison with other regulatory factors on social media 201 content-generative behaviours of social media users 24 differing conclusion, US, UK, Australia 188–9 perception and awareness 165–77 regulation by 21 reform 6 terms of service, technological features uncertain legitimacy 57 copyright legislation, 5, 125 'copyright management information' 50–51 copyright policies 102–105, 117–18, 127 copyright laws *Digital Millennium Copyright Act* 204 copyright policy, key terms **109**–**11** copyright protection 32, 119–20, 121, 127–8, 175 from copyright holders to YouTube 146 granting, foreseeable barrier 118 licence may not cover uses by third parties 173 material that is original from author, including copies in US 34, 39 none in UK and Australia, for song titles, advertisements, short, headlines 35 ownership of content by users, not always qualifying 173 *proviso de minimis* (no trifling matters) in UK 35 result of skill, labour, experience 35 in UK and Australia copyright regimes 79–80 potential incompatibilities 118–27, 137–8 relationship with 116–27, 153–8 copyright-related disputes adjudication of, in UK and Australia 126 copyright rules applicable to content-generative activities variable jurisdictions 171 absence and complexity of 171–2 inadequacy 189–90 copyright subsistence 76–7, 80 copyright systems, mature protection of expressions, not ideas, facts 33 copyright technological features **178**–**87** copyright violation contact party direct, complete DMCA compliant form 146

creation and sharing of new video clip 'vidding' on YouTube 77–8 'creative content' definition, Facebook, Pinterest, Twitter, YouTube, Tumblr, Flickr 20 creativity, ambiguity of 34 cyberlaw and cyberspace 3, 8 damages awards 53 *de minimis* use (too trivial) 35, 42 derivative works, no infringement 72, 73 under *US Copyright Act* 43 digital audio transmission 46 digital communications expansion cyberspace, inherently borderless 56 digital content 32, 167 *Digital Millennium Copyright Act* 50, 98, 102 compliant online forms 173 mechanism available to copyright holders 105 in copyright policies counter-notice 157 frequency of, social media platforms 117 notice and takedown mechanism 127, 155–6, 172 in respect of shared content 175 notifying of copyright infringement 155–6 process not readily available on Wikipedia 146 safe harbour provision, exemption from liability for monetary relief 128–9 YouTube 104 digital or machine-readable format 42 dissemination 141–2 extended reach of platforms 3–4 infringement of rights in UK 46 distortion, mutilation, modification prejudicial to author 48 *distribution* and *display* rights 75 DMCA *see Digital Millennium Copyright Act doctrine of merger*, *scènes à faire* US, Goldstein and Hugenholtz 33 doctrine of privity 120 domestic laws, mandatory 128 double intent standards, in US 51 dramatic works 33 drop-down menu, option selection report to Facebook, on offensive content for removal 144–5 editor Jasper's use of Jane's collage on cover page of his magazine 80, 116, 185–6 Electronic Frontier Foundation (EFF) *Lawrence Lessig v Liberation Music Pty Ltd* complaint against 157 electronic rights management information 51 electronic transmission 46 e-mails, bilateral messages 18 'embed post' option, Facebook 141 'encouragement of learning' 32 enforcement of copyright clips of song Lisztomania 157–8 European Max Planck Group 58 Evangeline's commentary, copyright protected 73

exemption from liability for monetary relief 128–9 expectation of users that digital content is free 176 expressions not copyright protected 33–4 external application, use of, on mobile device to play video clip as alarm 178 external tools use, 'save image' copyright infringement 185 on web browser 180 extraterritoriality 125 Facebook copyright policy, user warnings 103–4 dissemination, multiple ways 141 laws of state of California 107 modification 139–40 no breach in collage sharing 113 non-exclusive, transferable, royalty-free worldwide license 99 rights of one as original author 22 Statement of Rights and Responsibilities 99 technological features **230**–**31**, **234**, **239–40, 242, 247–50** terms and technological features copyright protection, availability 22 transparency report, number of government requests recorded 117 user content upload for sharing, image video clip 137 fair dealing exceptions new in UK 202 untested by litigation 56 UK and Australia, more prescriptive than in US 55, 56 fair dealing exception expansion for parody or satire in Australia including pastiche 31, 203 for purpose of private study, quotation, caricature, parody, pastiche 55 for quotation, limited use in exempting social media uses 56 fairness from user's perspective 200–201 fair use analysis in US, comment or criticism of work 54 fair dealing, copyright exceptions 80 doctrine in US 31, 71, 77, 202 false attribution, in UK and Australia 49 file-sharing activities 167–8 filtering, a form of technological control 146, 156–7 final clip from different video clips availability on YouTube 23 financial incentive for content share increasing 5 fixation requirement 119 fixation standards 38–40 *forum non conveniens* and pleading of foreign law 124 *Spiliada Maritime Corporation v Consulex Ltd (Spiliada)* 124 free digital content expectation 189 freedom of expression expansion through social media 2

freelance writer Olga Lexell Twitter's deletion of 'tweets' 154 Friend, Rupert (Homeland') **247** Getty Images in US 120–21 Gimp, Photoshop, image modifying 151 re-arranging texts 140 governance, privatised by social media 2 governing law and jurisdiction 98, 107–8, **109–11** governing law and jurisdiction, choice of California 121–7 governing law and jurisdiction clauses 126–7 Haitian earthquake, photographs by photojournalist, Danel Morel 52 'Harvey Balls' in tables 177–8 Homeland's Photos Facebook **248** human-centre authorship concept 171 human factors, on social media 2, 7 hypothetical user, Jane Doe 8 day in the life of 20–30 identification of authors on social media 36 of original generator of content 143 of specific right infringed 171 illegality, widespread of content-generative activities 205 image editing tools for collage creation 180 images, comments on 139 image sharing 2 income equality commentary on Facebook transfer to 'Timeline' 21 'income inequality' comment on Wikipedia 23 income inequality comment on Facebook Jane Doe, colleague, Zee, adds page to Wikipedia, no attribution to Jane 23 indemnification and liability of platforms 98–9 limiting of liability 105–7, **109**–**11** of platforms for losses incurred 128–9 individual images from 'audiovisual works' 78 influences on social media, 'nudges', 7 'nudged', 3 infringement copyright, content-generative activity 9 copyright in Australia, not US or UK 180 fair use and fair dealing exceptions 53–6 remedies 52–3 reproduction of whole 43 scope of protection 41–7 Instagram, modified images on 36 'intellectual property' 166 Intellectual Property Office of Singapore survey results 168 intellectual property rights 11, 159 in the US Constitution promotion of progress of science, useful arts 31–2 international obligations, compliance with US, UK and Australia, three-step test 201

internet's power, connecting people 153 internet users 1, 7, 199

Jane Doe collage, other users' partial use, sharing 79–80, 151, **184** rights against Zee and Cheryl under copyright laws 24 infringement of copyright laws in Australia 181 use of collage in blog post on WordPress 182 use of earlier commentary on Facebook Evangeline's commentary to create own 73–4 Facebook copyright infringement in UK, Australia, not US 150, 179 use of multiple photographs of newborn babies collage creation on Pinterest 74–6, 151 use of music video-clip on YouTube, morning alarm 71 copyright infringement, UK, Australia 178 usage licensed under the YouTube terms 178 video clip, taken by Cheryl (stranger) to display with different story 23 Jasper etc., external tools 186 Jasper's use of Jane's collage on cover page of magazine 153 joint authorship 37–8 'joint work' definition 37, 74

Kaplan and Haenlein classification system 1 knowing removal or alteration of electronic rights management information 51

lack of skill or knowledge, negative sense 18 laws and copyright laws 8, 31 difficulty of finding applicable law 79–80 legal action against Twitter, California 2 legislation restrictions 5 Lessig, Lawrence, renowned theorist on cyberspace 158 *lex loci protectionis* 57, 125 liability disclaiming 105–107 Liberation Music copyright notice settlement of case, fair use, fair dealing agreement, US and Australia 157–8 liberties, civil, individual challenges by social media platforms 2 licensed use under Pinterest terms 180 licensing of photographs 120–21 linking users through commonalities 3 literary, dramatic, musical, artistic work *Australian Copyright Act* 42 literary works 33

magazine editor, Jasper consideration of using newborns' collage for cover page 24 manual selection of text then 'copy and paste' 21 'material form' definition any form of storage, adaptation 42 micropayments licensing system 4 mixed signals 187–9 modification 3, 49 of content 139–41 limiting of 143–4

monetary relief limit from social media platforms 172 moral rights attribution, infringement 51 authors' assertion 48 infringement of others' rights 175 infringement on social media 47–52 of integrity to a work 159 right of attribution 77 US, UK and Australia 171, 175 specified under *VARA* 49, 50 *Morel* case 120–21 musical works 33 music video clip, Jane's use on YouTube not in breach of YouTube terms 21, 112 narrow definition of visual art under *VARA* 49 national borders and content sharing 5 negative perceptions of copyright laws 190–91 newborn babies collage spread on social media, recognition of babies by mothers 24 notice and takedown mechanisms 189, 190 'nudging' concept 159 concept-generative activities 190 online content, free 167–8 online intermediaries 203–4 Organisation for Economic Cooperation and Development (OECD) definition of 'user-generated content' 18 original author, lack of acknowledgement 77 originality and authorship requirements 31 originality for copyright protection 118–19, 126, 170 UK and Australia 36 for literary, dramatic, musical works 35 ownership and licensing of content 99, **109**–**11** 'ownership' conferment 126, 127–8 'ownership' vesting on user of a post on Facebook, etc. 118 partial use of Jane's collage by other users on Pinterest, Facebook, Twitter 115–16 Pew Research Center, US 2012 survey 167 photograph, digitally vandalised infringement of author's rights 49 photograph of a sculpture in public place exception from infringement 42 photograph of private sculpture pinning on Pinterest 46 photographs newborn babies, infringement in Australia 74–5 on pin-boards of Pinterest users 22 pictorial, graphic and sculptural works 33, 74 'pin' option on Pinterest, video clip sharing 1 79 Pinterest **1**, **98**, **231**–**2**, **236**–**7**, **240**, **243–4**, **250**–**51** liability disclaimer for contents shared 106 Pinterest Terms 99 Pinterest account, 'Video' on Jane's pin-board 21

Pinterest copyright policy termination of account of repeated infringement 104 Pinterest platform content communities 21 content dissemination by 'pinning' 141 mash-ups of photographs 18 'pin' content, original generator of content, possible 143 Pinterest Terms 182 informal resolution first, or American Arbitration Association rules 107 Jane's use licensed 180 licence scope limited 102 user retention of all rights posted 100 Pinterest user 'pin' other's image on own pinboard 140 platform users, vulnerability, copyright infringement 128–9 political transformation on social media 2 potential incompatibilities TOS and copyright regimes 127 precautionary measures in acquisitions of licences from users 119–20 Prince, Richard, sale of artworks 2 of Instagram images 36, 43–4 privity, doctrine of 120, 128 producers and consumers of content on social media, importance of rights knowledge 32 profits award, unawareness of infringement 53 provisions of TOS incompatible with copyright regime 188–9 'publication' in UK availability through electronic retrieval system 40 public display of work, open to public 45–7 public's interest in accessing copyrightprotected works 54 quotation exception article 10 of *Berne Convention* 203 registration, pre-requisite to copyright infringement actions 52 registration systems for copyright protection unnecessary in UK and Australia 52 regulation by copyright laws terms of service and technological features 177–87 of the US, UK and Australia 31 *Regulation (EC) No 593/2008 of the European Parliament*, Rome I Regulation 123 regulation of content-generative behaviour copyright laws 187–9 regulation of cyberspace or cyberlaw 8 regulation of social media, why it matters 201–5 regulatory factors **178**–**87** consistent messages, social media platforms 204 regulatory signals, consistency evaluation 177 relevant copy standards 31–58 remedies available to copyholder 52 'Remedy for an Aging Population' shared on Facebook 'Timeline' 23 removal of content under DMCA 117–18

restoration on YouTube no response from copyright holder 157 're-tweeting', no change to original 'tweet' on *Twitter* platform 143–4 rights of attribution 48, 50 bundle of copyholder 74–5 constraining 2 of copyright holder, *US Copyright Act* 41 of integrity 155 of Jasper, on photographs 24 management provisions 51 to perform, show or play work *prepare* derivative works, etc. 78 of producer of 'Making Good' 24 to public 45, 46 of reproduction 41–2, 71 infringement 73–4 or lending, or sale *US Copyright Act* 44 risk avoidance of copyright litigation 176 risks of copyright infringement 199 *Rome I Regulation* potential violation 123–5 rule, characterisation of three main 'elements' or characteristics 170 rules, precision, complexity, clarity three types of rules 170 safe harbour legislation 191 DMCA mechanism in copyright policies 117–18 'save image' function on web browser 153 sculpture, privately owned infringement if photograph on Pinterest 42 secondary liability for copyright infringement 118 *Second Restatement* 122–3 self-educating nature of technological features 176 self-expression, desire for 19 'send' option, to selected friends on Facebook 141 shaded and unshaded circles consistency and inconsistency 186 shaded circle representing consistency 178 'share' option, Facebook 141 original user still identifiable 143 'Share' option tab under friend, Evangeline's commentary 'copy and paste' 21 sharing an image, 'pinning' on Pinterest 139 sharing of 'status update' on Facebook 44 social incentives 19 social media characteristics participating, conversation, connectedness community, openness 3 social media, definition 17–20 social media for self-representation 2 social media platforms 1, 128–9 collaborative projects 9 influencing compliance with copyright laws 24 producers and consumers of content 3 proliferation, technological enablement 5 regulatory role acknowledgement 203 solicitous reminders to caution users 118 studies governing law as laws of state headquarters 112

terms of service **109**–**11**

unencumbered licence to use owned content 172–3 and users, unequal position 200 social media users active participants 38 adaptation of newborn babies collage, create own versions for further dissemination 24 difficulty of understanding 79–80 social networking sites 1, 9, 20 'social' technologies 3 sole author of new video clip, Jane 78 sound recordings and cinematic films 33, 42 copyright if first published in UK 40 status, desire for 19 'status update' 180 choosing audience 141 photograph of blue skies on sunny day 34 shared by Facebook user 32, 49, 119 statutory damages, grave concern 54 'stills', Cheryl's use of, from Jane's video clip as thumbnail images on website 78–9, 115, 152 subject matter types protected by copyright laws 31 subsistence: authorship 36–8 subsistence: fixation, recording reduction to material form 38–41 subsistence: originality 34–6 summary creation, modification, dissemination, limiting modification, filtering contents **147**–**9** summary of application of copyright laws in US, UK and Australia, to content-generative activities of social users **59**–**70** summary of key terms content-generative activities of users **109**–**11** summary of technological features influencing content-generative activities of users five selected social media **147**–**9** technical infringement regularity of copyright 6–7 technological facilities, 'affordances' 3 technological factors of social media platforms 1 technological features 10, 21, 138–46, **183** content-generative activities 139, 142–6, 153–4, 167 constrained by 199 impact of 6, 8, 79–80 screenshots 138 limiting modification of content 175 no express rules, bright-line rules 176 regulatory factor 204 screenshots **230**–**57** Facebook **230**–**31**, **234**, **239**–**40**, **242**, **247**–**50** Pinterest **231**–**2**, **236**–**7**, **240**, **243**–**4**, **248**–**9** YouTube **232–3**, **237**, **241**, **244**, **252–3**, **256**

Twitter **234**, **238**, **241**, **245**–**6**, **253–5** Wikipedia **234**, **239, 241, 257** of social media platforms

and application of copyright laws 158–9

requesting removal of content 142–4 users' perceptions of copyright laws 174–7 technological 'nudge' 138 technological 'nudging' 191 television show episode, copied by user 19 television episode uploading on YouTube right to perform publicly 46 termination policy for repeat infringers DMCA safe harbour provision 127 terms of service of media platforms 8, 10, 21, 81 alignment with copyright regimes 98, 127, 199 application 108–16 comparative regimes in US, UK, Australia 79 copyright policies adopted 96 governing law and jurisdiction clauses 107–8 imposition on third parties 120–21 licence granting 102 technological features **165**, **181**, **182**, **183** users' awareness of copyright laws 172–4 third party users 120–21 sharing on social media 127–8 'Timeline' 141 *Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS)* 32 principle of national treatment 57 'transformative-ness' of a use 54 translation of literary work 73 transnational disputes infringement of another country's copyright 57 transnational intellectual property disputes American Law Institute (ALI Principles) 57–8 tripartite relationship, access by broad community 4 'tweet', reasons not to protect 35–6 'tweet' of newborn baby photograph on blog post 22 'tweets' on Twitter 32, 119 Twitter **234, 238, 241**, **245**–**6**, **253**–**5** copyright policy, respecter of intellectual property rights 104–5, 121 feed checking by Jane 22 liability disclaimer for contents shared 106 removal of plagiarised jokes 'reply' function, responding to 'tweet' 140 reporting of 'tweets' 145 'tweet' embedding 142 'tweet' sharing, image or video clip 139 Twitter Terms 99 governing law, state of California 108 no breach in collage sharing 113 worldwide, non-exclusive, royalty-free license 101 two-way conversations 3 type of social media **26** ubiquitous infringement, rules dealing with 58 UK and Australia fair dealing exceptions 74 *UK Copyright Act* 53, 156, 178 'copying', storing by electronic means copy making 42 extension to a finite group of works and subject matter 33

infringement 74 receipt of visual sounds or images 46 right to attribution 48 works *recorded* in writing or *otherwise* 39 UK goal for copyright, *Statute of Anne 1709* 32 *UK Regulation (EU) No 1215/2012* on jurisdiction, (Brussels I Regulation) 124 unfairness to users 201 uniform resource locators (URLS) 117 unilateral interests of social media users 96 unitary product, content pages on Wikipedia 37 US case law, US copyright legislation 125 *US Copyright Act* 36, 37, 183, **183** infringement 74 registration of content 53 video clip entirety 'audiovisual work', lyrics literary, music, musical work 71 *US Copyright Office Regulations* examples of materials not protected by copyright 33 'use' definition modification, translation creation of derivative works 113 use of individual images infringement of right to reproduce 79 user base expansion, content availability 5 'user', copyright protection not always the case 173 user-generated content (UGC) 3, 18, 202 definition, various forms of content of users 17 new or adapted content from creative effort 19 and 'social media' 9 user resident in UK or Australia 126 US-registered entities directing to users in Europe 124 US Supreme Court copyright exists to promote creative expression 32 Viacom International Inc. US-based 157 video clip copyright 77 Jane's use of, infringement of right of reproduction 71 prohibition from posting content, breach of YouTube and Facebook Terms 114–15 public, private or unlisted 142 removal, YouTube, select flag icon under video clip 145 sharing, on YouTube, Facebook 23, 142 UK not fair dealing 71 YouTube **183** video-downloading on YouTube 204 video editing tool 139 YouTube, 'upload' function to share 152 views incorporated in Evangeline's commentary 'copy and paste', editing within text box 150–51 violation of moral rights 155 *Visual Arts Rights Act (VARA)* in US. art images, photographs, authors' rights 48

voluntary licensing by users 121 vulnerability of social media users 199–200 web 2.0, 'architecture of participation' 17 web forms, accessibility on four platforms 155 website of Cheryl 152 Wikimedia Foundation 105, 117 all content to be licensed 99 copyright policy 105 disclaimer of responsibility for acts of third parties 106–7 Wikipedia **1**, **96**, **234**, **239, 257** articles not accepted 144 collaborative projects 21, 102 technical coordination mechanisms 140–41 technical information about the file 144 Wikipedia platform image or audio clip 139, 144 notification of copyright infringement 155–6 Wikipedia Terms 99, 100–101 alternative dispute resolution mechanisms in San Francisco County 108 licensing requirements 100–101 WordPress 151, **256** account, Jane Doe sharing collage 21, 23 collage use in blog post, Terms of Service (TOS) 114, 182

YouGov report 2014, UK digital content should be free (children and young adults) 167 YouGov report on file-sharing devices 176 young people's self expression on Internet Lisztomania, clips of song 157 YouTube **1**, **21**, **98**, **232**–**3**, **237**, **241, 244**, **252**–**3**, **256** Content Id system 157–8 copyright policy, warnings on video clips 104 liability disclaimer for contents shared 106 provision of social plug-ins 151 video editing tool 152 YouTube platform 'share' tab for comment on video clip 140, 143 'upload' option 139 users, rights to re-use a user's content 102 video clips , social plug-ins, 'embed' option, e-mail option 142 YouTube Terms 99 laws of California 108 user retention of all ownership rights 100–101 Zee's contribution to Wikipedia

on 'income equality', using Jane's writing 76–7, 114, 151–2, 182–3 Wikipedia **257**

'This book makes an important contribution to the field of social media and copyright. It tackles the real issue of how social media is designed to encourage users to engage in generative practices, in a sense effectively "seducing" users into practices that involve misuse or infringement of copyright, whilst simultaneously normalising such practices.'

**– Melissa de Zwart, Dean of Law, Adelaide Law School**

Regulating

**Corinne Tan**

Regulating

Content

Media

**of Service and**

**Technological**

**Features**

**Copyright, Terms**

on Social

Content

 on

Social

Media

**Corinne Tan**

'This timely and accessible book examines the regulation of contentgenerative activities across five popular social media platforms.... Its indepth, critical and comparative analysis of the platforms' growing efforts to align terms of service and technological features with copyright law should be of great interest to anyone studying the interplay of law and new media.'

### **– Peter K. Yu, Director of the Center for Law and Intellectual Property, Texas A&M University**

### **How are users influenced by social media platforms when they generate content, and does this influence affect users' compliance with copyright laws?**

These are pressing questions in today's internet age, and *Regulating Content on Social Media* answers them by analysing how the behaviours of social media users are regulated from a copyright perspective. Corinne Tan, an internet governance specialist, compares copyright laws on selected social media platforms, namely Facebook, Pinterest, YouTube, Twitter and Wikipedia, with other regulatory factors such as the terms of service and the technological features of each platform. This comparison enables her to explore how each platform affects the role copyright laws play in securing compliance from their users. Through a case study detailing the contentgenerative activities undertaken by a hypothetical user named Jane Doe, as well as drawing from empirical studies, the book argues that – in spite of copyright's purported regulation of certain behaviours – users are 'nudged' by the social media platforms themselves to behave in ways that may be inconsistent with copyright laws.

**Corinne Tan** holds a PhD and LLM from the Melbourne Law School, as well as a LLB from the National University of Singapore. She is an internet governance, intellectual property and media law scholar and has published widely in international law journals.

Cover design: Jason Anscomb


**Figure 9.** Character of an open space in the multi-family residential development in Czyzyny: ( ˙ **a**) Arrangement of the area of the former runway of the Rakowice-Czyzyny airfield along with the residential development; ( ˙ **b**) Character of a space in between the buildings. Photos: by author.

**Figure 10.** Densifications of housing estates in Mistrzejowice in the context of green areas of the fortress constituting their buffer zone and other green areas enveloping the housing estates (green). Color legend: black buildings—developments from before 1995 (mostly within the scheme of the construction of the Bohaterów Wrze´snia i Piastów housing estates); red—densification—developments from after 1995. Based on an ortophotomap (www.maps.google.com, accessed on 5 December 2021).

**Figure 11.** (**a**,**b**) Intensive multi-family residential development on the northern side of the Piastów housing estate. Photos: by author.

#### **4. Discussion**

One of the important reasons for undertaking the work was to draw attention to the growing problem of densification of large-panel housing estates with new buildings and at the same time destruction of Late Modernist urban structures, which are often recognized as heritage. Frequently, it is quite excessive and chaotic, and it constitutes a threat to their functioning as a valuable housing environment. Single buildings or clusters thereof built within the perimeter of housing estates as well as in their outskirts lead to the shifting of their edges' (Table 3) appropriate valuable open space, destroying their composition. Over time, such changes can lead to complete obliteration of the original design idea in the entire housing estate or a fragment thereof. In this way, the main potential of such housing estates, which results predominantly from their urban advantages, such as urban composition and its functional and spatial logic, large amounts of open public space, and abundance of greenery, is gradually annihilated.

The results presented herein demonstrated the possibility of obtaining essential information on this problem by quantitative determination of the degree of densification of large-panel housing estates. Upon the example of a comprehensive analysis of all (31) large-panel housing estates in Cracow, carried out on the basis of measurements and calculations of the additional built-up area performed on the basis of available materials (vector maps, satellite images, and planning materials), an average size of densification with new buildings was determined. For all the housing estates, this average is already 15.4%, whereas in some of them, it is very high—it has reached the value of nearly 35% (Table 1, Figure 3).

In light of the above, it is clear that the qualitative analysis may be more effective in the presence of quantitative data. Problems of threats and damages to the existing, already historic urban composition, caused by uncoordinated, chaotic additions to large-panel housing estates, incompatible with their initial plans, are illustrated upon selected examples the housing estates in Czyzyny (Dywizjonu 303 and II Pułku Lotniczego; ˙ Figure 8) and selected housing estates in Mistrzejowice (Bohaterów Wrze´snia and Piastów; Figure 10). The high density and chaotic arrangement of a new development caused significant spatial changes, which has a negative influence on the urban layout of these housing estates. They have lost valuable green areas, and the continuity of public spaces has been broken. Moreover, the densifications have led to devastation of the historical and cultural potential. As a result, the housing estates have lost some of their advantages irreversibly.

It proves that it is important to link quantitative data and qualitative criteria (e.g., influence of the densification on the urban layout, continuity of public spaces, resources of greenery, existing historical and cultural assets, mixed-use development) to obtain a proper characterization of the functioning of the estates.

According to the observations, a considerable share of the new buildings covers multi-family residential developments, which intensifies the monofunctionality of the housing estates. A similar effect can be caused by enclaves of such developments in the direct proximity of large-panel housing estates; hence, they have been taken into account in this study. Housing estates and their immediate surroundings need to be integrated within the urban context [53,54]. However, the study does not consider any detailed data relating to them, limiting solely to indicating their location. Likewise, the study does not focus on the quantitative determination of the function that emerges as new buildings appear. A quantitative functional and spatial analysis could be the next step, addressing transformations in housing estates in more detail. It has been found that despite the fact that prefabricated housing estates are a legacy of the Modernist segregation of functions and as such they are burdened with a number of issues, such as monofunctionality, monotony of development, repetitiveness of forms, and low quality of architecture of apartments blocks, they are often characterized by a functional and spatial logic and abundance of green areas. Frequently, the overall urban layout of a housing estate corresponds to local conditions, making use of natural advantages (the lay of the land, vicinity of valuable landscapes). The risks of losing these advantages caused by chaotic development may be mitigated to a certain extent by local spatial development plans. In the case of the housing estates in Cracow, such plans cover only 14 out of the 31 housing estates or complexes thereof investigated in this study (Table 2).

In this context, what deserves attention is an opinion that in the Study of Spatial Development Conditions and Directions in force [44], which provides the foundations for all the local spatial development plans and administrative decisions in this area, and consequently the grounds for building permits to be issued, the protection of valuable housing projects from that period is insufficient and ineffective [25]. In the scientific debate, there are more and more voices about the need to protect valuable urban structures of the second half of the 20th century [55–57]. Therefore, an interesting concept is the introduction of the term 'urban heritage structures' as a protection tool at the level of the local law (planning documents, study, local spatial development plans). These structures would comprise—among others—valuable 20th-century and contemporary projects of different scales and uses [2].

In the context of the results of studies and analyses presented in this paper, it should be concluded that some housing estates have lost some of their advantages irreversibly. Many housing estates still have such values, and it is important not to lose this potential.

However, it should be noted that following an idea of the 'compact city', many European planning strategies consider urban densification as one of the tools to promote sustainable urban development. One may agree with that opinion only when the densification results from a wider, comprehensive development plan and not from individual, uncoordinated decisions: not those aimed at private interest, but at the common one. It needs to be a thoroughly planned densification process [58], which is usually complex and slow [59]. Moreover, regeneration policies for the housing estates should be considered in view of a wider urban context of the city, which can be labeled as an outward-looking approach [60,61].

Furthermore, investing in such housing estates is a positive thing in itself, especially if new service facilities are introduced, which makes the functional program of the estate more diverse. Mixed use promotes sustainable urban development as well [62,63].

Therefore, even though quite paradoxically, it could be stated that up to a point, the current densifications protect housing estates from their functional degradation, at the same time, they lead to their spatial degradation and destroy their advantages. However, it is worth noticing that there is still a chance to improve the situation of housing estates by undertaking rational and consistent measures in the field of architecture and urban planning, which can change not only the living standards offered to residents but also the very image of housing estates.

The methodology proposed and verified within the scheme of the research presented in this publication can be used as a tool for analyzing the problem of densification of large-panel housing estates in other towns and cities.

#### **5. Conclusions**

The goal of the research presented in this paper is to demonstrate the scales and character of densifications of the large-panel housing estates built in the second half of the 20th century, which pose a threat of devastation of their urban layouts, which are often recognized as heritage.

The paper applies a quantitative and qualitative approach to present spatial transformations that take place within such housing estates. The study area comprised housing estates in Cracow, the main city of the Province of Małopolskie, which after filtering out certain local specificity demonstrates many tendencies and mechanisms characteristic for other big cities of Poland.

The paper illustrates the scale of the problem, subsequently classifying the ways in which these housing estates have been transformed in terms of their densifications. Two main tendencies have been observed: adding buildings or clusters of buildings within the perimeter of housing estates and in their outskirts, leading to shifting of their edges. It also points to the essence of functional and spatial changes in the direct vicinity of large-panel housing estates, consisting of building a new complex of multi-family residential buildings, demonstrating the potential negative influence on their functioning. On the basis of the analysis results, the paper demonstrates the threat of devastation of urban layouts of such housing estates and their main potential—green areas.

This paper constitutes a voice in a discussion devoted to the condition, but most of all to the future of large-panel housing estates, particularly in terms of their protection and stopping some unfavorable tendencies of urban destruction. It fills the gap in the existing studies focusing on this problem, particularly in the context of the ongoing debate on the significance of urban planning achievements in the second half of the 20th century and recognizing valuable urban layouts as heritage.

All measures leading to the development and improvement of the quality of largepanel housing estates are desirable. Nevertheless, they should constitute an element of a well-coordinated and comprehensive process, instead of a sum of one-off interventions, paying no or little heed to the existing context, particularly the ones that disregard public interest in favor of the private one. The study results presented herein indicate that chaotic densifications in such housing estates may reach a surprisingly big scale. Therefore, the presented method of analyzing the effects of this process in a systematic approach seems to be useful for controlling and rationalizing its propagation, in particular for revealing and eliminating the negative tendencies that emerge. The knowledge obtained this way may prove valuable in prognostic studies devoted to urban development, in the optimization of relevant formal and legal solutions, as well as in optimizing current management activities.

The research presented in this paper was limited to the problem of the percentage of the increase in the built-up area of these housing estates and the character of their densification as well as to demonstrating a threat of devastation of their urban layouts. Therefore, further research can develop the problem of densification and its effects on such housing estates in a more complex way. For instance, it is possible to study the impact of the densification process on the percentage of services and the mix of services, the degree of fragmentation of green areas, etc. The research topic can cover multidisciplinary issues, for example densification studies can be integrated with sociological aspects, such as residents' population, population by age, by income, and by nationality. It is recommended to conduct further research from the aspect of creating formal barriers to prevent the uncontrolled densification of large-panel housing estates.

The sustainable development of cities based on the concept of a compact city requires an appropriate density and intensity of development, which means that measures directed toward increasing this intensity within city limits are rational in many cases. Nevertheless, they need to be optimized, and they must not be implemented at the expense of existing heritage structures and their residents. This paper may constitute a source of information on tendencies of transformations occurring in large-panel housing estates as well as a source of inspiration to take actions aimed at the rationalization of these processes.

**Funding:** This research received no external funding.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** Data available in a publicly accessible repositories—they are all showed in the 'References' section.

**Conflicts of Interest:** The author declares no conflict of interest.

#### **References**

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www.mdpi.com ISBN 978-3-0365-8505-5


**Detecting Growth Phase Shifts Based on Leaf Trait Variation of a Canopy Dipterocarp Tree Species (***Parashorea chinensis***)**

**Yun Deng 1,2,3,4, Xiaobao Deng 1,2,4, Jinlong Dong 1,2,4, Wenfu Zhang 1,2,4, Tao Hu 1,2,3, Akihiro Nakamura 1,2, Xiaoyang Song 1,2, Peili Fu 1,2 and Min Cao 1,2,\***

Received: 25 September 2020; Accepted: 26 October 2020; Published: 29 October 2020

**Abstract:** Canopy species need to shift their adaptive strategy to acclimate to very different light environments as they grow from seedlings in the understory to adult trees in the canopy. However, research on how to quantitively detect ecological strategy shifts in plant ontogeny is scarce. In this study, we hypothesize that changes in light and tree height levels induce transitions in ecological strategies, and growth phases representing different adaptive strategies can be classified by leaf trait variation. We examined variations in leaf morphological and physiological traits across a vertical ambient light (represented by the transmittance of diffuse light, %TRANS) and tree height gradient in *Parashorea chinensis*, a large canopy tree species in tropical seasonal rainforest in Southwestern China. Multivariate regression trees (MRTs) were used to detect the split points in light and height gradients and classify ontogenetic phases. Linear piecewise regression and quadratic regression were used to detect the transition point in leaf trait responses to environmental variation and explain the shifts in growth phases and adaptive strategies. Five growth phases of *P. chinensis* were identified based on MRT results: (i) the vulnerable phase, with tree height at less than 8.3 m; (ii) the suppressed phase, with tree height between 8.3 and 14.9 m; (iii) the growth release phase, with tree height between 14.9 and 24.3 m; (iv) the canopy phase, with tree height between 24.3 and 60.9 m; and (v) the emergent phase, with tree height above 60.9 m. The suppressed phase and canopy phase represent "stress-tolerant" and "competitive" strategies, respectively. Light conditions drive the shift from the "stress-tolerant" to the "competitive" strategy. These findings help us to better understand the regeneration mechanisms of canopy species in forests.

**Keywords:** ontogenetic phases; adaptive strategies; leaf functional traits; light environment; canopy tree species


**1. Introduction**

The common snook or *Centropomus undecimalis* (Bloch) is a diadromus, stenothermic, euryhaline, estuarine-dependent species found in the tropical and sub-tropical western Atlantic Ocean from about 34° N to about 25° S latitude (Howells *et al*., 1990). The snook physiology is characterized by a distinct lateral line, high divided dorsal fin, sloping forehead, a large mouth, a protruding lower jaw and a yellow pelvic fin (Fore & Schmidt, 1973).

Partial genetic isolation occurs between Florida's Atlantic and Gulf Coast stocks (Tringali & Bert, 1996). Snook are protandric hermaphrodites: some males develop into females between 1 and 7 years of age, having a maximum 20-year lifespan. Females are generally larger than males of the same age, at the same time it is unusual to find females smaller than 500 mm in fork length. Snook growth rates are highly variable. For instance, Atlantic Coast fish grow more quickly and to a larger size than do fish on the Gulf Coast (Taylor *et al.* 2000).

Common snook form the basis of important fisheries throughout their range due to their sporting and culinary attributes (Tucker *et al*., 1985; Matlock & Osburn, 1987). Numbers of common snook have declined over recent years due to shoreline development, fishing pressure, and loss of coastal habitats. As a result, common snook were designated as a game fish restricted to recreational harvest only. Depletion of some Florida stocks during the late 1970's and the early 1980's (Bruger & Haddad, 1986) resulted in common snook being declared a species of special concern, and they are now protected by strict regulations enacted by the Florida legislature.

The ultimate objective of hatchery-based production of common snook in Florida is the supply of high quality animals to restore declining stocks and enhance local populations. The quality of the juveniles, environmental conditions and releasing techniques are all involved in the success of restocking programs (Tsukamoto 1993). The objective of larval rearing is to mass-produce high-quality and healthy juvenile fish. The management of both the rearing environment and feeding regime are the most important aspects of this activity. To improve larval rearing techniques, a good understanding of larval morphology, behaviour, live food and artificial diet requirements, and environmental conditions is fundamental (Liao et al., 2001).

Collection of data on the conditions required for spawning, larval rearing, and release of common snook into marine and freshwater systems began in 1974 at the Florida Game and Fresh Water Fish Commission (Ager *et al*., 1978; Shafland and Koehl, 1980, Chapman et al., 1978). Information on the development of laboratory reared larvae and juveniles (Lau and Shafland, 1982) and on the lower lethal temperature (15°C) for juveniles (Howells *et al*., 1990) was also documented. These studies described the basic common snook biology and the principles for captive rearing. Although research on this species in Florida and Texas was carried out during the 1970's, 1980's and 1990's, there are still a number of gaps in our understanding of the requirements for successful larval rearing and broodstock management.

#### **1.1 Snook larval culture**

Techniques of larviculture have gradually been developed from simply collecting the stocking material in the wild to using modern, advanced facilities for complete larviculture practices (Liao *et al*., 2001). Common snook culture research in Florida, Texas, Mexico and Brazil has primarily relied on collection of fertilized eggs from mature wild fish and more recently at Mote Marine Laboratory on captive broodstock production. At this time, snook larviculture practices are still under-development when compared to many other marine fish species, such as red drum and cobia. This paper is focused on larval rearing during the first 14 days after hatching using wild, strip spawned eggs. The techniques investigated include the design of a larviculture system, diet requirements of larvae, and system management.

#### **1.1.1 Importance of temperature on embryonic and larval development**

Nearly every aspect of early fish development is affected by temperature (i.e., fertilization, hatching, first feeding) (Alderdice and Velsen, 1978; Heggberget and Wallace, 1984, Brännäns, 1987; Crisp, 1988; Kane, 1988; Jensen *et al*., 1989; Beacham and Murray, 1990; Blaxter, 1992). Other aspects affected by temperature are the yolk conversion efficiency as demonstrated in salmonid embryos (Heming, 1982; Heming and Buddington, 1988; Marr, 1996; Peterson & Martin-Robichaud, 1995) and in stripped bass (Peterson *et al*., 1996). Also larval size and fitness at the end of the endogenous feeding period are directly affected by temperature (Peterson *et al*., 1977, 1996, Baynes and Howell, 1996). Therefore, temperature has a key controlling effect on metabolic processes through thermal dependence on enzymatic activity (Brett, 1970; Rombough, 1988; Blaxter, 1992).

#### **1.1.2 Larval stocking densities**

One of the key aspects of successful large-scale production is determining the optimum larval stocking densities. For several species of fish, such as sea bass (*Dicentrarchus labrax*) or sea-bream (*Sparus aurata*), optimum culture densities are well known. The optimal stocking density varies between species depending on the behavioural and physical characteristics (Tagawa *et al*., 1997, 2004; Kaji *et al*., 1999; Hernandez-Cruz *et al*., 1994). Larval density studies for common snook have not been conducted, although some work has been done on fat snook (*Centropomus parallelus*) evaluating the effect of larval and juvenile densities on growth (Cerqueira *et al*., 1995).

### **1.1.3 Prey density**

188 Aquaculture

To improve larval rearing techniques, a good understanding of larval morphology, behaviour, live food and artificial diet requirements, and environmental conditions is

Collection of data on the conditions required for spawning, larval rearing, and release of common snook into marine and freshwater systems began in 1974 at the Florida Game and Fresh Water Fish Commission (Ager *et al*., 1978; Shafland and Koehl, 1980, Chapman et al., 1978). Information on the development of laboratory reared larvae and juveniles (Lau and Shafland, 1982) and on the lower lethal temperature (15°C) for juveniles (Howells *et al*., 1990) was also documented. These studies described the basic common snook biology and the principles for captive rearing. Although research on this species in Florida and Texas was carried out during the 1970's, 1980's and 1990's, there are still a number of gaps in our understanding of the requirements for successful larval rearing and broodstock

Techniques of larviculture have gradually been developed from simply collecting the stocking material in the wild to using modern, advanced facilities for complete larviculture practices (Liao *et al*., 2001). Common snook culture research in Florida, Texas, Mexico and Brazil has primarily relied on collection of fertilized eggs from mature wild fish and more recently at Mote Marine Laboratory on captive broodstock production. At this time, snook larviculture practices are still under-development when compared to many other marine fish species, such as red drum and cobia. This paper is focused on larval rearing during the first 14 days after hatching using wild, strip spawned eggs. The techniques investigated include the design of a larviculture system, diet requirements of larvae, and system

Nearly every aspect of early fish development is affected by temperature (i.e., fertilization, hatching, first feeding) (Alderdice and Velsen, 1978; Heggberget and Wallace, 1984, Brännäns, 1987; Crisp, 1988; Kane, 1988; Jensen *et al*., 1989; Beacham and Murray, 1990; Blaxter, 1992). Other aspects affected by temperature are the yolk conversion efficiency as demonstrated in salmonid embryos (Heming, 1982; Heming and Buddington, 1988; Marr, 1996; Peterson & Martin-Robichaud, 1995) and in stripped bass (Peterson *et al*., 1996). Also larval size and fitness at the end of the endogenous feeding period are directly affected by temperature (Peterson *et al*., 1977, 1996, Baynes and Howell, 1996). Therefore, temperature has a key controlling effect on metabolic processes through thermal dependence on

One of the key aspects of successful large-scale production is determining the optimum larval stocking densities. For several species of fish, such as sea bass (*Dicentrarchus labrax*) or sea-bream (*Sparus aurata*), optimum culture densities are well known. The optimal stocking density varies between species depending on the behavioural and physical characteristics (Tagawa *et al*., 1997, 2004; Kaji *et al*., 1999; Hernandez-Cruz *et al*., 1994). Larval density

**1.1.1 Importance of temperature on embryonic and larval development**

enzymatic activity (Brett, 1970; Rombough, 1988; Blaxter, 1992).

**1.1.2 Larval stocking densities**

fundamental (Liao et al., 2001).

management.

management.

**1.1 Snook larval culture**

Prey density (Werner and Blaxter, 1981) is one of the factors affecting feeding efficiency and consequently larval growth and survival under culture conditions. Enhancing feeding efficiency, at first feeding, can reduce the risk of starvation during the first days of development (Peña *et al*., 2004). It has also been shown that foraging success increases with prey density (Wyatt, 1972; Laurence, 1974, 1978; Houde and Schekter, 1980; Munk and Kiørboe, 1985) until an asymptote is reached (Houde and Schekter, 1980; Klumpp and Von Westernhagen, 1986). Feeding levels (e.g. rotifer densities) must be tailored to the needs and consumption rates of the larvae at different ages so that food is not wasted, larvae are not underfed, and rearing water is not fouled. The usefulness of food to larvae at particular stages may be measured by food intake, growth and survival (Duray, *et al*., 1996).