In an interview, published on news.com, Brewster Kahle, director of The Internet Archive, told CNET's Second Life auditorum: "Everyone seems to like the idea of preservation of cultural materials. But folks are nervous about disruptions in commercial practices that are just now getting formed. Libraries and publishing, however, have always existed in parallel. What happened is that some overzealous copyright laws got passed with heavy lobbying from folks like Disney and these are screwing things up."

This was a response to a ruling before the Ninth Circuit U.S. Court of Appeals in the case of Kahle v. Gonzales. Kahle proposed to make orphaned works such as out-of-print books available online via an opt-out mechanism. The proposed opt-out mechanism would have required to put a halt to copyright extension. Kale argued that such an extension harmed the public's ability to access orphan works. The Internet Archive has been joined by companies like Google, Yahoo and Microsoft in attempting to gain public domain status for these works. However, the court rejected the lawsuit, arguing that in an earlier case (Eldred v. Ashcroft, U.S. Supreme Court in 2003) already affirmed the constitutionality of new copyright laws expanding the protections for orphaned works.

However, this is probably not the last word in this matter. The Internet Archive only recently received a $1 million grant from the Sloan Foundation. Its purpose: the scanning of public domain works.

PS. You can also read a legal comment by Zohar Efroni on the Stanford Cyberlaw blog which argues that article 5(2) of the Berne Convention ("The enjoyment and the exercise of these rights shall not be subject to any formality.") would indeed need some examination "for copyright law to save itself from itself."