This article is part of a series that describe some ideas for reforming current copyright law. The approach I'm taking is ad-hoc. A specific problem is listed, and a solution is proposed, followed by the rationale.
If a copyrighted work is out of print, its copyright has not expired, and it has not been licensed for distribution, then it ceases to be accessible to the public.
We proposed the following reform for a work that was in print and subsequently went out of print: a compulsory license is automatically granted to any entity who can demonstrate that (1) the work is no longer available for purchase by the distributors authorized by the publisher, and (2) the original publisher lacks incentive to reprint the work. This compulsory license is revoked as soon as the publisher starts reprinting the work.
Here the key phrase is "out of print," where the act of printing is defined based on the quantity of replication. An allowance of 100 copies is given to any work without it being considered "in print."
The rationale is that printing is considered a mechanical process that can only reach economy of scale in mass quantity and can continue indefinitely, subjecting only to available natural resources. On the other hand, replication that requires significant manual effort, such as a sculpture, should not be considered printing. Using economy of scale as the principle, we use the number of copies to threshold the amount of manual effort required for replication.
If a work was never in print, then it might be the case that the copyright owner never intended to distribute the work to the public, so we must respect that intention.