From a Joint Statement (PDF):
The International Association of Scientific, Technical & Medical Publishers (STM), Association of Learned and Professional Society Publishers (ALPSP), and Professional and Scholarly Publishing Division (PSP) of the Association of American Publishers (AAP) [on Friday] issued a joint statement setting out clear rules for the digitisation of copyright works which are out of commerce. [Our emphasis] Along with these rules, the trade associations also mutually granted a ‘safe harbour’ on behalf of publishers in the form of a waiver of claims for fees or damages for use of works when the new rules are followed.
Following on from the EC Memorandum of Understanding ‘Key Principles on the Digitisation and Making Available of Out-of-Commerce Works’ which was signed by a number of organisations including STM in September 2011, the new joint statement applies the same principles as the Memorandum in terms of providing a Safe Harbour for digitisation projects taking place within countries of the European Union.
Likewise, it follows the three trade associations’ safe harbour statement on the use of content from orphan works in new works, course-packs and compilations, which was released in 2007 and has subsequently been signed by more publishing houses.
The rules for the use of out of commerce works set out in the new joint statement recognise that the right to authorise the use of an out-of-commerce work is vested in the copyright holder (authors and publishers) and that voluntary solutions involving collective management represent the most logical, and practical ways forward. The safe harbour document outlines a need for a viable and diligent search to exclude materials that are not out of commerce, as well as for clear and adequate attribution in order to respect the authors’ moral rights. Users who comply with these rules when completing their digitisation projects will be subject only to normal license fees and will not be subject to any statutory, punitive or special fees or damages under the terms of the safe harbour arrangement.