Andrew Malcolm (author)

Andrew Malcolm, born 10 October 1948, is a British author and campaigner, who pursued a seven-year breach-of-contract claim against Oxford University Press, which he won with a landmark legal judgment in the Court of Appeal in 1990. Reporting on the verdict, Laurence Marks in the Observer wrote, 'It is the first time in living memory that Grub Street has won such a victory over its oppressors.'[1] The case ended in July 1992 with a Tomlin order, a damages settlement under the terms of which the servants and agents of Oxford University are for all time barred from denigrating Malcolm or his work Making Names,[2][3][4] rendering it the first book in literary history to be afforded such legal protection.

Malcolm published Making Names himself in 1992 under the imprint Akme and, according to WorldCat, the book is held in 21 libraries.[5] This was followed in 1999 by his second book, The Remedy, an account of his battle with the OUP.[6]

Malcolm went on to campaign against the Oxford Press's charitable status and tax exemption,[7] and was described by Private Eye as 'the scourge of OUP'.[8]

Making Names

Malcolm's first book, Making Names, is a philosophical dialogue "in which two strangers meet one summer’s morning in a near-miss car accident: Andrew Cause is a philosopher, Malcolm Effect a research scientist. In their ensuing day-long conversation, Cause subjects Effect to a sustained sceptical attack upon the inadequacies and inconsistencies of his world-view. Traditional problems are introduced, including those of mind and body, cause and effect, free will, universals and the nature of moral goodness. Cause identifies the scientist’s particle theory of matter as a crucially mistaken and hopeless metaphysics which has now outlived any usefulness. Step by step, Effect is reduced to a state of confusion, and finally he demands that Cause produce an alternative. In a literally dramatic climax the philosopher invokes a new model which, he claims, gets to the heart of things..."[9]

After a nine-month negotiation, in May 1985, Malcolm's book was accepted for publication, subject to certain revisions, by the OUP general books editor, Henry Hardy. In correspondence, Malcolm stated that he would only do further work if he received Oxford’s firm commitment to the book’s publication. Hardy gave him this commitment in a telephone call, which Malcolm recorded. In a subsequent letter, Hardy wrote, 'I'm pleased that we are going to do your book, and hope that it's a terrific success.'[10] OUP also had the book refereed by two Oxford philosophers, Alan Ryan of New College and Galen Strawson of St Hugh's. Ryan wrote, 'It's philosophically rather good, I think - it makes one of the shrewdest cases for a sort of Collingwoodian Idealism that I've read....Making Names is well worth doing, both because it is interesting in itself, and because it's a bold attempt to do philosophy in an unusual literary format.'[11] Strawson reported, "Making Names is really quite an attractive book. It is in no way crazy. It is very easy to read. Malcolm has a real gift for informal exposition....He is very clear and he knows what he's talking about....I think Making Names might prove extremely effective as an introduction to philosophical problems and procedures."[12]

In Hardy's own account, Malcolm's book then 'fell victim to an internal disagreement at Oxford University Press'[13][14] when its managing director, Richard Charkin, overruled Hardy's favourable view of the book, served him with a disciplinary warning, and transferred him to another department of OUP. When Malcolm returned six months later with the book revised as agreed, he found that it was instead to be handled by a junior editor, Nicola Bion, who turned it down.

Malcolm vs Oxford University, 1986-1992

Following the rejection, Malcolm went to law, issuing a writ for breach of contract against the university on 23 December 1986. The case depended on whether the conversations and letters between Hardy and Malcolm constituted a contract. At the trial in March 1990, Deputy Judge Gavin Lightman found that no legally binding contract had been entered into because specific details, such as the book's print run, format and price had not formally been agreed.[15]

Lightman's decision was then overturned on appeal by a majority of two to one (Mustill LJ dissenting, but adding 'for once it is satisfying to be in a minority.') Lord Justice Leggatt concluded: 'It is difficult to know what the Deputy Judge (Lightman) meant by a ‘firm commitment’ other than an intention to create legal relations. Nothing short of that would have had any value whatever for Mr Malcolm... To suggest that Mr Hardy intended to induce Mr Malcolm to revise the book by giving him a valueless assurance would be tantamount to an imputation of fraud... It follows that in my judgment when Mr Hardy used the expressions ‘commitment’ and ‘a fair royalty’ he did in fact mean what he said; and I venture to think that it would take a lawyer to arrive at any other conclusion.'[16] Malcolm was awarded damages and costs.

Mark Le Fanu, general secretary of the Society of Authors, said after the judgment: 'We congratulate Mr Malcolm for persevering and winning the action. It's very significant that the Court of Appeal has confirmed that oral promises made by publishers can be binding even before a formal contract has been completed. I think that what will now happen is that publishers will make it clear that deals are subject to contract. But this will be better than ambiguity. At least an author will know where he or she stands.'[10]

Giles Gordon, the literary agent, declared, 'I think it's a most remarkable victory for authors. It means that editors' verbal assurances may be legally binding.'[1]

In 1999 Malcolm was invited to write two articles for the Times Literary Supplement, the first about OUP’s constitution[17] and the second about the legal implications of the then emerging print-on-demand technology which Oxford was introducing.[18]

Authors’ Royalties and ‘Sheet dealing’

While the contract case clarified and in certain respects extended authors’ rights, the ensuing assessment of damages proceedings (1991–92) shed new light on modern royalty agreements, in particular the rise of 'sheet dealing'. This is the practice of extending a print run by "running on" extra copies of a book's sheets, which are then sold on to a subsidiary overseas publisher to be bound into books.

Methods of calculating royalties changed during the 1980s, due to the rise of retail chain booksellers, demanding increasing discounts from publishers. As a result, rather than paying royalties based on a percentage of a book’s cover price, publishers preferred to pay royalties based on their net receipts, often based on 'sheet deals'. One of Malcolm's witnesses, Frederick Nolan, author and former publishing executive, explained how this could benefit publishers at the expense of authors:

"It makes sense for the publisher to pay the author on the basis of what he receives, but it by no means makes it a good deal for the author. Example: 10,000 copies of a $20 book with a 10 percent cover-price royalty will earn him $20,000. The same number sold but discounted at 55 percent will net the publisher $90,000; the author's ten percent of that figure yields him $9,000. Which is one reason why publishers prefer "net receipts" contracts....Among the many other advantages (to the publisher) of such contracts is the fact that they make possible what is called a 'sheet deal'. In this, the (multinational) publisher of that same 10,000 copy print run, can substantially reduce his printing cost by 'running on' a further 10,000 copies (that is to say, printing but not binding them), and then further profit by selling these 'sheets' at cost-price or even lower if he so chooses to subsidiaries or overseas branches, then paying the author 10 percent of 'net receipts' from that deal. The overseas subsidiaries bind up the sheets into book form and sell at full price for a nice profit to the Group as a whole. The only one who loses is the author."[19]

Reviews

For the damages hearing, Professor Roy Edgley of Sussex University provided Malcolm with an affidavit assessing his book: "Making Names is an exceptional piece of work, highly unusual in both its content and presentation. Malcolm's use of dialogue is in certain ways more fully dramatic than Plato's or Berkeley's, his writing is fluent and wonderfully easy to read. Most of the major philosophical problems are presented and argued, but it is not until the final chapter that Malcolm's fusion of philosophy and drama takes its most audacious step, when he presents his very striking version of the tragedy Electra. Malcolm has done something in this book which is unique."[20]

When Malcolm published the book in 1992, it was reviewed by R.W.Noble in the TES: "Andrew Malcolm's Making Names, with its entertaining philosophical dialogues, is an interesting publishing event in itself, even if we were not aware of the fact that this book made legal history when the Appeal Court ruled that Oxford University Press infringed the law when they reneged on their contract to publish it... effectively communicating the essentials of philosophy and scientific theorising to students and general readers".[21]

Terence Kealey reviewed the book in The Spectator: "It is a comprehensive, professional textbook that introduces the philosophy that is taught in sixth-form colleges or polytechnics....Making Names is fun, it deserves to be published, and resourceful teachers will find it useful".[22]

The paperback edition of the book, published in October 1993, carried a eulogy from Karl Popper, made in a telephone call in April 1993, which he invited Malcolm to record and use: 'I was deeply impressed by your Electra....I must say I read it...as if it were written by Sophocles. I really felt that you have caught the spirit of Greek tragedy, and I felt that you are a poet. I was deeply moved.'[23]

In 2002, Arina Patrikova, who went on to win the 2005 Newdigate prize for poetry, reassessed the book in The Oxford Student: 'Now, more than twenty years since its completion, Making Names is neither obsolete nor dispensable. The tragicomic legal struggle does little to lessen the intellectual merits of Making Names - its prose still shines, its questions still stand, and its 'Electra' remains one of the most powerful statements of the human condition written in the last century....An attentive reader would indeed find that Making Names is easily a good novel, and it is obvious to all that it is nothing short of a film script.'[24]

The Remedy

In 1999 Malcolm published his second book, The Remedy, an account of the Oxford lawsuit. The Remedy was reviewed in the Times Higher Education Supplement by Henry Hardy, the editor who originally commissioned Making Names. Hardy wrote, 'Andrew Malcolm has written two excellent books – an engaging and original introduction to philosophy in dialogue form, and this gripping story of the alleged ineptitude and skulduggery with which he was treated by a publisher to whom he offered it....Malcolm has a real gift for farce – and the portrayal of muddle and evasiveness on the part of the publishing grandees and their legal representatives is intensely tragicomic.'[13]

Malcolm vs Oxford University, 2001-2

In his THES review, Hardy wrote that in his original decision to publish Making Names, 'he had the strong support – later withdrawn for reasons he never fully understood – of one of the Delegates.'[13] The Delegate referred to was Dr Alan Ryan, who in 1985 in two reports had recommended Making Names' publication.[11][25] On 13 April 2001, reacting to Hardy's review, Ryan wrote in the THES that he had changed his mind about publishing the book because 'what had seemed fresh, lively and amusing seemed coarse and jeering the third time around.'[26] Malcolm claimed that this constituted a breach of the non-denigration clause of the 1992 settlement (see above). Further litigation followed, and in March 2002 the case came by coincidence before Mr Justice Lightman, the judge whose High Court ruling in Malcolm's publishing contract case twelve years earlier had been overturned by the Court of Appeal. Lightman found that Dr Ryan, though Warden of New College, was not an employee or servant of the university but an 'independent contractor'.[27][28] Malcolm was ordered to pay £12,500 of Oxford’s claimed £41,600 costs and was refused leave to appeal.

Akme Expression

Malcolm's response to the 2002 judgment was to open a shop and gallery, Akme Expression, at 12 Broad Street in Oxford, opposite Balliol College and the Martyr's Mark, where three Protestant clergymen were burned at the stake. It was described in The Oxford Times as 'The strangest bookshop and exhibition ever seen in Oxford.'[29]

The shop sold Malcolm's two books, with all proceeds going to Oxford University's £12,500 costs bill. In Publishing News, Andrew Blow asked, 'Is there another bookshop in the world where the author can claim to have written all the stock?....Like other unusual bookshops, and like all great retail brands, Akme Expression is a monument to a monumental obsession.'[30]The shop's walls and window displays were filled with newspaper accounts of every story to have embarrassed Oxford in recent times. The gallery included 'Another Oxford Story', based on 'The Oxford Story' tourist attraction. Malcolm's exhibition was described in the Oxford Times article: 'At the bottom of the stairs is an Oxford don, in full academic dress, clutching a blood-stained knife in his hand. At the dummy don's feet lie two broken bottles of port, a crumpled blood-splattered Oxford University T-shirt and a sub-machine gun, while from her cell in the far end a model of the Patron Saint of Oxford, St Frideswide, serenely surveys the grisly scene.'[29] There was also an AKME University installation, offering qualifications for sale. According to the Oxford Times, 'the Presidency of Trickery College is priced at £12,500, the Mastership of Broke College is going for £500, while a first-class degree (any subject) is a snip at £200'.[29]

Borders Incident

As a result of his tenure of Akme Expression, Malcolm was invited by the local publications buyer of Oxford's nearby Borders bookshop to hold a talk and book-signing session there on 4 October 2002. At the last minute, with Malcolm and his audience on their way to the shop, the still-advertised event was cancelled by the in-store management. According to a report in the Daily Telegraph, the event then "turned into farce when the management called the police, who arrived in three squad cars. Eight officers escorted the author and his audience from the shop, which said they were trespassing."[31] Malcolm told the Oxford Mail,"This must have been the oddest invited book-signing in history: no window display, no poster, just an author quietly addressing his peaceable audience, while a team of security men solemnly requisitioned their table and chairs. It was not so much Nazi Germany as Monty Python. Now we know what free speech means in Oxford. In a way it's flattering. I never realised that what I have to say is so dangerous."[32]

Following complaints from the public, Borders' International President Vin Altruda and UK Managing Director Philip Downer were obliged publicly to apologise: "We sincerely regret and apologise for the cancellation of Andrew Malcolm's event in Oxford, which should have gone ahead." Under heavy security, Malcolm's talk Where is the university? was rescheduled and held at Borders flagship store in Charing Cross Road, London, on 30 January 2003. Private Eye reported, "Andrew Malcolm, the scourge of OUP (Eyes passim), returned in triumph last week to the chain's Charing Cross Road store in London to pick up where he had left off."[33]

Law Library

In 1997 Malcolm launched an online Literary Law Library posting various legal resources concerning publishing law.[34]In 2006, Malcolm created the Akme Student Law Library, providing a 'free archive of cases and other materials relating to university-student and college-student contract law.'[35]In the same year, the Akme Literary Law Library was cited by the UK Charity Commission’s consultation as having been influential in the new ‘public benefit’ requirement of the 2006 Charities Act with respect to the status of the university presses. The Act provoked fresh debate about the likely reform of the presses' tax liability.[36][37] In 2009, The Guardian invited Malcolm to write an article on the subject.[7]

Campaign to be Chancellor

In March 2003, following the death of Roy Jenkins, Malcolm ran for the post of Chancellor of Oxford University. According to a report in The Guardian, he put himself forward as a 'hands-on reformer', promising to save Oxford's 'battered reputation for integrity and academic excellence and help it regain its lost place amongst the front rank of the world's universities.'[38] Malcolm said he would 'eradicate corruption, cash-for-places, croneyism, fustian bureaucracy and the many other such problems that have bedevilled and lately publicly disgraced the university.'[38] Malcolm was later forced to withdraw from the contest because eight of his signatures had not received Oxford degrees. Interviewed in Cherwell, Malcolm said, 'It is puzzling and saddening to find this once-great university going to such extraordinary lengths to stifle free academic debate, especially at a time when several momentous questions for the country's higher education system are hotly in dispute.'[39]

References
  1. "OUP silenced, 23/12/1990". www.akmedea.com.
  2. Phil Baty, 'Whistleblowers', The Times Higher Education Supplement, 22 February 2002 '
  3. Phil Baty, 'Whistleblowers', THES article on the akmedea website '
  4. "Malcolm v Oxford: settlement agreement 1/7/92". www.akmedea.com.
  5. Malcolm, Andrew (21 January 1992). "Making names: an idea of philosophy". Akme – via Open WorldCat.
  6. Malcolm, Andrew (21 January 1999). "The remedy: a true story". AKME Publications – via Open WorldCat.
  7. Malcolm, Andrew (14 April 2009). "Response: The Oxbridge presses aren't charities, but are given unfair tax breaks" – via www.theguardian.com.
  8. "Private Eye, 17/5/02". www.akmedea.com.
  9. Andrew Malcolm, Making Names, AKME publications, 1993
  10. "Malcolm wins appeal, 21/12/90". www.akmedea.com.
  11. "Malcolm v. Oxford: Evidence page 22". www.akmedea.com.
  12. "Malcolm v. Oxford: Evidence page 58". www.akmedea.com.
  13. Henry Hardy,'Any Final Say in War of Words?' Times Higher Educational Supplement, 30 March 2001
  14. Henry Hardy,'Any Final Say in War of Words?' on akmedea website
  15. 'OUP 'author' loses fight for publication', The Bookseller, 6 April 1990
  16. "Malcolm v. Oxford: Judgment (Court of Appeal)". www.akmedea.com.
  17. "The War for Jericho, 2/4/99". www.akmedea.com.
  18. "An Ultra Short Run". www.akmedea.com.
  19. Nolan, Fred. "Affidavit of Fred Nolan". Malcolm vs. Oxford University, 1986 Chancery Division (Damages Assessment) CHANF 92/0058/B Fred Nolan – via www.akmedea.com.
  20. "Roy Edgley: Testimony: Malcolm v. Oxford". www.akmedea.com.
  21. "Cause célèbre, 25/9/92". www.akmedea.com.
  22. "Kealey meets Kylie, 10/4/93". www.akmedea.com.
  23. quoted by Andrew Malcolm, The Remedy, Akme, 1997, p.209
  24. Arina Patrikova, 'Mourning becomes electron', The Oxford Student, 30 May 2002
  25. "Malcolm v. Oxford: Evidence page 64". www.akmedea.com.
  26. "Critic offers Oxford his latest work of friction". Times Higher Education (THE). 26 April 2002.
  27. Phil Baty, 'Whistleblowers', The Times Higher (Education Supplement), 22 February 2002
  28. 'Whistleblowers', text of the THES article on the AKME website
  29. Reg Little, 'Andrew's Little Shop of Horrors', The Oxford Times, 21 June 2002
  30. David Blow's Diary,Publishing News, 10 May 2002
  31. Liz Lightfoot, 'Squad cars break up bookshop soirée,' The Daily Telegraph, 12 October 2002
  32. 'Author's talk ends in chaos',The Oxford Mail, 11 October 2002
  33. Bookworm, Private Eye, 7 February 2003
  34. "AKME Literary & Charity Law Library". www.akmedea.com.
  35. The Akme Studant Law Library
  36. "OUP's tax: Touch me minky, 16/3/07". www.akmedea.com.
  37. Shepherd, Jessica (17 April 2007). "Plans to tax university presses" – via www.theguardian.com.
  38. "Hands-on reformer, 11/2/02". www.akmedea.com.
  39. "Headship contest heats up, 7/3/03". www.akmedea.com.

Further reading

Andrew Malcolm, Making Names, AKME publications, 1992 (Hardback), 1993 (Paperback) ISBN 1-874222-00-2 and ISBN 1-874222-01-0 Andrew Malcolm, The Remedy, AKME publications, published 1999, second edition 2002. ISBN 1-874222-90-8

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