First, I must mention how way cool it is that Judge Richard Posner is blogging this week at the Lessig Blog. He doesn't specifically mention libraries, but he just blogged:
"... I believe, copying of old copyrighted works should be permitted if the copyright owner has not taken minimal steps to place copiers on notice of his interest."
-- Judge Richard Posner, Fair Use Elaborated blog entry Aug 23
Alas, although this enlightened thinking would allow
libraries to digitize a lot more old stuff, it's his unofficial opinion. It's not the law. We're stuck with a regime that does not require such notice. Used to be that works could enter the public domain for lack of notice, but now works published 1978 and later are not required to have notice. The Berne treaty says no notice can be required. We need to change the law, but how?
Judge Posner has a forthcoming law review article that may show us the way: