1/21/12, ALA Midwinter. The session I attended was a panel of professionals discussing the replication of orphan works. An orphan work is one with no identifiable owner, and therefore, there should be no copyright issues. Orphan works are most likely out of print, however, not all out of print works are orphans. The ideas surrounding the duplication of orphan works are centered on fair use clauses, which allows for more flexibility in making something available by making an exception to the rules of exclusive copyrights. (As a side note, orphan works can also be photographs or other media, not just books. They can also be published or unpublished materials.)
If there is no identifiable copyright owner, how are libraries to deal with these materials? They can either wait until they are sure enough time has passed so that the works are definitely in public domain, or, they can put forth a good faith effort to find the true copyright holder. This means that the library (or publisher) must try really really hard to identify and contact the copyright holder, and if they are unable to, they can duplicate the work. So far, no lawsuits have been brought to court by copyright holders who believes their rights were violated (besides the the Hathi Trust issue.)
Ideas for helping to protect copyright holders include the creation of a national database that lists the efforts of libraries and publishers in identifying copyright holders of works believed to be orphans. It can be an easy place to check the status of a particular work, and to track efforts made by others in identifying copyright holders.