From the LA Times Op-Ed:
Ideally, a digital library would provide access not only to books free from copyright constraints (those published before 1923), but also to the tens of millions of books that are still in copyright but no longer in print.
Copyright law makes it risky to digitize these books without permission from copyright owners, and clearing the rights can be prohibitively expensive (costing on average, according to estimates, about $1,000 per book). Even if the money wasn’t a problem, hundreds of thousands — and probably millions — of books are likely to be “orphan works” whose rights-holders are unknown or can’t be found.
There are three promising strategies for removing barriers to a universal digital library: First, it should be considered “fair use” in copyright law for nonprofit libraries to circulate orphan works for their patrons for noncommercial purposes. Second, Congress should pass legislation to limit damages and injunctions for other reuses of orphan works. Third, the Copyright Office should explore a collective licensing program under which all in-copyright but out-of-print works could be made available, as some countries are now trying.
Read the Complete Op-Ed
See Also: Audio and PowerPoint Slides from Berkeley Center for Law and Technology Orphan Works Symposium (April 2012).