Why Older Books Remain Hard to Find in Our Age of Digital Plenty

The perverse incentives of modern copyright law

One of the reasons I started my YouTube channel a few years ago was to draw attention to books and authors that, undeservedly, have fallen out of print. I hoped to help readers (re)discover them and to generate sufficient interest that libraries and publishers would take steps to increase their availability.

Alas, changes to international copyright law over the past half century have created perverse incentives for publishers, leading them to view older works as assets (or threats) to be hoarded rather than published. Apparently, it’s more profitable to keep out of print many older works that haven’t yet entered the public domain. There aren’t even ebook editions for a great many titles, despite the ease with which electronic texts can be produced and distributed at minimal cost.

Some publishers have been snapping up the legal rights to such works from authors or their estates, perhaps in the hope of someday parlaying them into lucrative film/tv adaptation deals that would generate follow-on demand for print editions. In the meantime, though, they remain out of print and unavailable to most readers.

Other publishers take a more predatory approach, acquiring (or retaining) the publication rights to older works as a way of keeping new editions of them off the market. They seem to view those older works as potential competition for the newer authors and works that are the focus of their hype-laden promotional efforts. To that end, they hide the bulk of their back catalogs from public view and decline to sell the publication rights for those older titles to others who might make use of them.

Unlike in decades past, readers seeking older titles often can’t rely on public libraries for them anymore. Most libraries have culled their collections heavily to focus on recent and popular titles and to make space for meeting rooms, learning labs and other non-book uses. That leaves the used book market where many older works are becoming increasingly scarce.

Balancing Copyright Interests

This is what happens when copyright law gets hijacked from its original intent of ensuring public access to creative works. For hundreds of years, there was a presumption under the law (dating back to English common law) that the public had a compelling interest in the fruits of all creative work because such work advanced human knowledge and progress. A balance was needed, though, to ensure sufficient incentive and opportunity for creators to pursue and benefit from their creative efforts.

Copyrights of relatively short duration were the tool used to strike that balance. Early copyright law granted limited rights to creators, allowing them to protect and profit from their works in the near term while denying them the ability to restrict use or access to their works over the longer term.

What the law considers “near term” and “longer term” has changed dramatically since then, making the concept of “longer term” almost meaningless from a practical standpoint when what is considered “near” can now extend longer than two human lifespans.

A Brief History of US Copyright Law

In the US, copyrights initially were limited to just 14 years, but in 1831, the period was doubled to 28 years and copyright holders also were given the option to renew their rights for an additional 14 years, resulting in a maximum duration of 42 years. This lasted until 1909, when Congress extended the optional renewal period to 28 years, guaranteeing that works would enter the public domain within 56 years of publication.

The optional renewal period required timely submission of a renewal request and payment of a fee, and according to the US Copyright Office, the overwhelming majority of works published before 1964 never sought or received the optional renewal period. In many cases, this was because the copyright holders saw little economic value in seeking to extend their copyright protection.

However, in 1964 the law was revised again to make the optional 28-year renewal period automatic, even for works that had largely exhausted their commercial appeal.

Imagine if the law had remained fixed at that point. Everything published before 1969 would be in the public domain now. Think of the creative liberties it would have unlocked.

However, in 1976 and again in 1998, Congress further extended copyright durations, and in some cases retroactively applied the new copyright period to previously published works that had already entered or were approaching public domain status.

Today, nearly every creative work produced in the US has a copyright lasting at least 95 years, and protection can extend considerably longer depending upon whether the work remained unpublished after creation or whether the work was produced as a work for hire. Works produced since 1978 by authors working on their own behalf are granted copyrights that last for the full life of the author plus an additional 70 years. That means a work published today by a 20 year old who lives for another 60 years will enjoy 130 years of copyright protection. That’s a far cry from the law’s original intent of ensuring creative works are available for public use and benefit within a reasonable time period.

Orphan Works

Also, although every work published in the US before 1930 has entered the public domain as of 2025, many works published from 1930 to 1963 occupy a gray area, due to incomplete records tracking copyright ownership and renewals. A great many works from that mid-century period are in the public domain now because their copyrights were never renewed, but often it can be difficult to prove. Often, the original copyright was held by the publisher rather than the author, and the ownership records were lost or muddied when the publisher later went bankrupt or entered into a merger as the industry consolidated.

It's estimated that millions of these ‘orphan works’ from that time period exist today because of the law’s shifted presumption of copyright protection in the absence of clear documentation of a work’s copyright ownership and renewal. This deters potential publishers from bringing those works back into print and denies readers the opportunity to rediscover them.

AI to the Rescue??

Over the past several decades, copyright law (in the US and abroad, due to international harmonization) has altered the balance of power between creators and the public too much in favor of copyright holders (who very often aren’t the actual creators of a protected work). Where once the law gave primary importance to the public’s interest in creative works, now it works primarily to limit the public’s access to them – a pernicious form of economic protectionism and a significant reversal of its original intent.

A rebalancing is needed. Ironically, the impetus for such a reset might be the emergence of generative AI that relies heavily on copyrighted materials to fuel its datasets. The original intent of copyright law was to foster human creativity, but its future might soon prioritize the computer-driven kind. That alone is reason to worry whether the cure for copyright’s ills might be worse than the disease.