For a work of authorship to exist, there are two conditions that must be met:
- That it represents an original intellectual work of authorship,
- That it is expressed in a certain form (especially in the case of literary, music, dramatic, 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 it evokes in those to whom it is directed (for example, viewers, readers, etc.). Originality is required mainly to protect other authors and works of authorship so that plagiarism does not become the subject of copyright protection, and its creator is the holder of the copyright. For this reason, originality is always examined 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 suitable 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 in question can pass the originality test of one part of the authorship work, such as 11 consecutive words.
The work of authorship must be expressed in a certain form. This criterion makes a key distinction between one’s original idea (which remained only at the level of an idea and not was expressed in some way) and the work of authorship. For some sorts of works of authorship (for example, works of architecture, sculptural works, films, etc.) it is not possible to create a work without expressing it in material form. On the other hand, some musical or dramatic 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, choreography is a work of authorship, and its expressive form is human movement.
Work of authorship exists regardless of its scientific, artistic, or some other value, its contents, size, purpose, and way of manifestation, as well as the permissibility of public communication of its contents.
However, the protection of copyright does not apply to general ideas, methods of operations, procedures, or mathematical concepts as such, as well as principles, concepts, and instructions included in a work of authorship.