The exception of academics from section 13(3) which makes the academic and not the academic's employer the owner of first copyright in an academic's work and teaching materials is not specifically provided for in statute. Dolmage v. Erskine provides a succinct account of its source: "Academic exception is an implied 'agreement to the contrary' within the meaning of s. 13(3) of the Act."Dolmage v. Erskine, 2003 CanLII 8350 (ON SCSM), at para 120 This agreement to the contrary of the terms of section 13(3) need not be written by the academic and the employer into the contract of employment at the time of contract formation, but instead is implied after the fact by the court based on the notion that such is the overwhelming practise in academic institutions and that the parties probably contemplated such a term at contract formation. While this appears to be the custom at the college/university level, whether it applies to high school or other education settings is unsettled in Canadian law. Collective bargaining now tends to resolve this issue.
