For a work of authorship to exist, only two conditions need to be met:
1. That it represents an original intellectual work of authorship,
2. That it is expressed in a certain form (especially in case of literary, dramatic, music or works of art).
Saying that, originality does not require innovation in the sense that the work must introduce novelties in that respective area, which is for instance, an essential feature of patents. Unlike innovation, which is measured by objective criteria, originality is primarily measured subjectively, as to what feelings does it evoke in those to whom it is directed (for example, readers, viewers, etc.). Originality is required primarily to protect other authors and works of authorship so that plagiarism does not become the subject of copyright protection, and its creator the holder of the copyright. For this reason, originality is always considered in every specific case and represents a factual question.
What is specifically implied by the criterion of “originality” is determined through the case law of each state by applying appropriate legal tests. Thus, for example, according to the originality test established by the European Court of Justice in Infopaq International A/S v Danske Dagblades Forening, a work of authorship must satisfy the criterion of being “the author intellectual creation”.
The work of authorship must be expressed in some form. This criterion makes a key distinction between one’s original idea (which remained only at the level of an idea and not expressed in some way) and the work of authorship. For some sorts of work of authorship (for example, films, works of architecture, sculptural works, etc.) it is not possible to create a work without expressing it in material form. However, some dramatic or musical works can exist without being expressed in material form. For them to be protected by copyright, they must be in a form that allows expression of that work of authorship. For example, a choreography is a work of authorship, and its expressive form is human movement.
Work of authorship exists regardless of its artistic, scientific or some other value, its purpose, size, contents and way of manifestation, as well as the permissibility of public communication of its contents.
However, the protection of copyright shall not apply to general ideas, procedures and methods of operations or mathematical concepts as such, as well as concepts, principles and instructions included in a work of authorship.