The text for a Directive on orphan works, which will allow the digitisation of orphan works by public institutions (e.g. museums) without fear of claims for copyright infringement, has been agreed by the European Parliament.

A work will be deemed "orphan" if after a diligent and good faith search it is not possible to identify or locate the rights holder. “Orphan Works” would be deemed orphan throughout the EU, and would only be available to use for “not for profit purposes”. If a rights holder subsequently comes forward the work will no longer be deemed “orphan”, however the legislation should ensure that any compensation to the rights holder for such “not for profit” use is minimal.

The aim of the proposed Directive is to harmonise how orphan works are categorised and used by public bodies. However, whether or not the Directive will provide sufficient scope for public broadcasters such as the BBC who have vast catalogues of potentially orphan works remains to be seen - the requirement for a diligent search (rather than providing for rights holders to make themselves known) may in itself prove simply too much. All in all the Directive's heart seems in the right place but its impact could well be limited without some significant input from the private sector.