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I've read the multiple definitions of 'originality' regarding copyright, and I am still not convinced whether something has to be a work first for it to classify as possibly an original one if that's the case.

So, for instance, can a speech be called original if the one that is giving the speech has not copied someone else's work? Can it not be called original (even if it is), if it's not a work (fixed)?

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In copyright law, anything that is of one of the broad general categories that can be protected by copyright is said to be a "work" whether or not it has been "fixed in a tangible form". If a person sings a song, never having written it down or recorded it, the song is a "work" but has not been fixed, and is therefore not protected by copyright. The same would apply to a speech or a poem that has been recited but never written down or recorded, or a dance performed but never notated or recorded. They are all works, but none have (yet) been fixed, and so there is no copyright protection.

All this will also be true in any country that adheres to the Berne Copyright convention, although the word "work" might be translated into another language.

If someone later writes the work down, or records it, then it will have been "fixed", and copyright protection will be available provided the other conditions are met.

Whether a work is original is a separate issue from whether a work has been fixed. If person A makes up a song and sings it without recording it, it is original but not fixed. If person B hears it and writes it down, it is now fixed, but not original to B. A will then have the copyright.

In copyright law "originality" usually means that a work is the separate creation of a person, not copied from the work of some other person. Note that a work may quote or imitate previous works, or use portions of them in some way, and still be sufficiently original for copyright protection.

However the term "original" is sometimes used to mean "creative". A mere list of numbers in numerical order is not creative, and will not be protected by copyright (in the US and countries with similar laws). A list of all the names of people in a given town or area, in alphabetical order, is not creative enough to be protected by copyright (see Feist vs Rural). Courts and other writers on copyright sometimes express this by saying the work is not "original". Similarly, a simple geometric design, such as a white square on a black background, is not creative enough for protection, and again this is sometimes expressed by saying that it is not original.

A work must be both original and creative to be protected by copyright, although it need not be very creative nor totally original. The rules on originality and creativity vary by country. I am here following US law, but the law of quite a few other countries is similar on these points. The term to look for what is counted as original and protectable is often referred to as threshold of originality. This is what I have referred to as "creativity" above.

This is related to the question and answer at Is a work copyrighted on fixation or publication? What's the difference? How is it proved? recently posted.

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  • @Dale "other countries do protect unfixed work" added in a recent edit (rolled back) is uncited and I think incorrect. It is not compatible with Berne. If it is correct, please provide a source Commented May 2, 2021 at 21:38
  • Some countries have a concept that puts a limit to how trivial a work can be: Germany calls it Schöpfungshöhe, precluding to claim copyright on a blank canvass unless you can show that this is the result of an artistic process. It precludes copyright in works that are entirely random (a computer cobbling together notes). It also has cut against a woman that destroyed an artwork made from a toilet and old grease by cleaning it - she claimed that a dirty toilet was not having that needed originality, but the judges deemed that the artistic process showed it had.
    – Trish
    Commented May 3, 2021 at 9:18
  • German copyright, under the Schöpungshöhe doctrine, does deem that something everybody with an average skill could create, no matter the time, skill and expense actually used in that work, is not copyrightable - e.g. typical children's drawings generally don't manage that, and there even was a case where a manual was taken into court to be dissected and filtered an in the end to be found non-copyrightable as it was found craftsmanlike, common, banale (handwerksmßig, alltäglich, banal)
    – Trish
    Commented May 3, 2021 at 9:28
  • @Trish That is interesting, and does indeed seem to be a different and more exacting standard than is used under US law. I don't think that it makes this answer incorrect, but it would very much affect an answer on "what is copyrightable?" Commented May 3, 2021 at 13:04
  • I don't say it is incorrect, but that different countries have different Threshold of originalities
    – Trish
    Commented May 3, 2021 at 13:27

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