The Authors’ Guild is suing a number of well-known universities for copyright violations – partially associated with the universities’ attempts to determine “orphaned works” and to make them freely available to students. These are works for which the status of the copyright for any number of reasons (e.g. it is unclear whether the copyright was renewed, if the work was every copyrighted, to whom the copyright belongs, and so on) is unknown. These works are not going to be your best-sellers or your most recent books (generally) rather they will be niche volumes, many of which are out-of-print.
IMHO, I understand the Authors’ Guild to hand over the decision of what books are “orphaned” to the Universities – setting a precedent which it might later regret…but I also think the unavailability of orphaned works is a great shame. There are massive numbers of works not making any significant revenue for anyone and with uncertain copyright status which are currently unavailable…something should be done about this.
I’d suggest that the Authors’ Guild attempt to reach an agreement with Universities to establish an independent review panel. This review panel could consist of representatives from both educational and authoring/publishing concerns as well as various other independent observers which would determine the status of orphaned works and also provide a method for removing works are later found not to be orphaned from the digitization archives as necessary.