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I believe that in order for a copyright to be in force, someone has to hold the copyrights. Copyrights is a civil matter, not a criminal, so someone has to actively enforce the copyright. If no one holds it, you can publish with no problem. Of course, sometimes figuring out who owns the copyrights can be an issue. That's why there is a proposal for identifying and allow the use of orphaned works, i.e. works with no identifiable copyright owner.
The LOTR's copyright is owned by Tolkien's children, who are rather active in protecting it since it's still in print and making quite a bit of money for them. I think that Richard Adams who wrote Watership downs is still alive.
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