Subsistence of Copyright is at the core of the debate on what should be protected. Copyright is meant to protect the expression of ideas but never ideas in themselves. This becomes problematic as there is no clear way to discern the two. The case law on the subsistence of copyright focuses on the court's many attempts at demarking the difference between the two.
The Act provides protection for all "original literary, dramatic, musical and artistic" works. Close attention has been paid to the use of the word "original". It has been well established that the foremost requirement for the subsistence of copyright is that the work be original.
The CCH Canadian case re-evaluated the meaning of "original" in the context of several other countries including the US and Australia. The US had adopted a "creative spark" doctrine requiring a minimal sign of originality to have copyright. While Australia had adopted a "sweat of the brow" doctrine that did not require any creativity whatsoever, rather originality is substituted by the effort made by the creator. McLachlin chose a middle ground, which in retrospect is closer to the "creative spark" doctrine. For a work to be original it must be the result of the exercise of "skill and judgement". More specifically: skill, meaning the "use of one's knowledge, developed aptitude or pracised ability in producing work", and judgement, meaning the "use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work". Nevertheless, originality does not require any novelty or creativity. But it does require intellectual effort beyond mere mechanical exercise.
The determination of originality on the basis presented in CCH Canadian depends on the facts. For a large part, it depends on the degree to which the work originated from the author. Many factors are considered, in particular the medium or form used is significant. Of relevance is whether it is comprised of elements that are in the public domain or not, the ordering of data or facts, or whether the form is pedestrial or novel. Mere selection is generally not enough. As well, it is significant to consider whether there is any artistic elements to it.
The exact determination is still difficult. It has been determined that copyediting of texts is not usually sufficient. But, for example, does a quick snapshot taken by a parent of their child have sufficient judgement and skill? Generally, not.
As stated at the beginning, the philosophy behind copyright is the protection of expression of ideas. This entails that there must be a form, or "fixation", to the expression. It is fixation that distinguishes an expression from an idea.
In Canadian Admiral Corp. v. Rediffusion, the court considered fixation: "for copyright to exists in a 'work' it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance." [emphasis added] In this case, the court found that there was insufficient fixation in the live broadcast of a sports event. Any sort of broadcast, telecast, or display of a spectacle on its own is not sufficient to be fixed. At the least, it must be simultaneously recorded in some fashion to be fixed.
To the possible exception of choreographed works, there is a requirement that the work be recorded in a relatively permanent form. Typing a note into a computer screen may be sufficiently permanent. Some cases have shown that unstructured speech or other spontaneous or improvised creations, such as a sports game, cannot contain copyright.
Both facts and ideas are by their very nature uncopyrightable. This will often create difficulties when it becomes necessary to separate the idea from the expression as well as in the separation of fact from the arranging and use of those facts. Where the distinction between idea and expression becomes obscured the Courts often take a precautionary view that it cannot be copyrighted so as to avoid preventing others from expressing the same idea.
Minor designs that are largely ornamental or functional are excluded as well. For example, coloured blocks used as tools in a educational progam are excluded.