This thoughtful article is by Pamela Samuelson, professor of law and of information at the University of California and focuses on the Digital Public Library of America and the need to reform copyright, fair use, the treatment of orphan works, possible licensing schemes, and other ideas.
Ms Samuelson starts by talking about the failure of the Google Book Settlement as being the inspiration for the DPLA but quickly notes barriers to the successful implementation of the DPLA in the copyright law. In particular she points to issues like “the extraordinarily long terms of copyright” saying that the continued extension of copyright terms in revisions of the law “is a significant impediment to reuse of most books published in the 20th century, even though an overwhelming majority have long been out of print.”
The article goes on to discuss fair use as one possible remedy and its role in cases like Cambridge University Press et al. v. Becker et al. and in the Google case in which Google is using the fair use defense “to justify mass digitization for indexing book contents and making snippets available to its search-engine users.”
As far as freeing up the millions of non-orphans, out-of-print works for the DPLA, the article suggests that they be made “available to the DPLA through licenses from the nonprofit Creative Commons or the like. Ms. Samuelson then doubles down on the licensing idea by suggesting “Congress… create a license so that digital libraries could provide public access to copyrighted works no longer commercially available.” She also has some other thought provoking spinoffs from this licensing idea that should make reading this article worth your time.