Peter Suber has published "Seeking Custody" in the latest issue of the SPARC Open Access Newsletter.
Here's an excerpt:
If we want to make a digital file OA, and we already have an OA repository, then we face just two hurdles. We need a copy of the file and we need permission. We can call these the custody and copyright conditions. "Custody" here doesn't mean ownership of the rights, just possession of a copy. If we have possession and permission, then we don't need ownership.
The OA movement has given far more attention to the copyright or permission problem than to the custody or possession problem. This may have the effect of sweeping a difficult problem under the rug. We often have permission when we lack custody, and often find that solving the permission problem is easier than solving the custody problem. Here are some examples of what could be called permission success and custody failure.
(1) You've published an article in a TA journal which allows green OA or self-archiving. But the journal only allows deposit of the final version of the author's peer-reviewed manuscript, not the published version. You're fine with that and eager to make the manuscript OA. But you can't put your hands on the version you're allowed to deposit. You think it's on your hard drive somewhere, or in your email archive. But you're not sure. You haven't had time to look, or you've looked and found six versions. You don't have time to figure out which one, if any, is the deposit-eligible, peer-reviewed manuscript, or you've taken the time and you're still unsure. Or you have the version you submitted to the journal, and all the correspondence with the editor, but you don't have time to reconstruct the version approved by peer review. Or you might have deleted the relevant version in a fit of spring cleaning, as a superseded version not worth saving, or you might have failed to copy it over from your last computer when you upgraded. With enough detective work you could find out, but you don't know how much time it would take and you're pretty sure it would take more than you have.
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