Re: author's addendum

[Sandy Thatcher <sgt3@psu.edu>]

A number of the types of author's addendum being proposed for use 
by faculty in modifying their contracts contain language to the 
effect that if the publisher does not sign the addendum but goes 
ahead and publishes the article, the mere publication itself will 
constitute acceptance of the terms of the addendum.

The SPARC version contains this language in clause 7: "However, 
if Publisher publishes the Article in the journal or in any other 
form without signing a copy of this Addendum, such publication 
manifests Publisher's assent to the terms of this Addendum."

This kind of language is noticeably absent from some other such 
addenda, e.g., the CIC addendum.

I am not familiar with the legal force of such opt-out clauses, 
but wonder if others on this list with legal expertise might 
comment. Usually, contracts have to be signed to be legally 
binding, do they not?  And if one were to take a publisher to 
court over such an addendum, would not one be obliged at the very 
least to provide proof that the addendum actually was sent and 
received by the publisher, e.g., by a receipt from a certified or 
registered mail deliver?  A publisher surely cannot even 
impliedly consent to an addendum without having seen it. --

Sanford G. Thatcher
Director, Penn State Press