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] 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.^[4] This was followed in 1999 by his second book, The Remedy, an account of his battle with the OUP, which, according to WorldCat, is held in 17 libraries.^[5]

Malcolm went on to campaign against the Oxford Press's charitable status and tax exemption,^[6] and was described by Private Eye as 'the scourge of OUP'.^[7]

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..."^[8]

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.'^[9] 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.'^[10] 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."^[11]

In Hardy's own account, Malcolm's book then 'fell victim to an internal disagreement at Oxford University Press'^[12] 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 December 23, 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.^[13]

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.' ^[14]

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.'^[9]

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]

Authors’ Royalties and ‘Sheet dealing’

While the contract case clarified and in certain respects extended authors’ rights,^[15] the ensuing assessment of damages proceedings (1991–92) shed new light on modern royalty agreements and on certain sharp practices employed by publishers.

As stated by Oxford’s witness Ivon Asquith,^[16] since the early 1980s there has in the UK been a general move by publishers away from the payment to authors of ‘published price’-based royalties (calculated as a percentage of a book’s retail price) to ‘net receipts’–based royalties, calculated as a (slightly higher) percentage of a book’s discounted (wholesale) price. Authors have throughout been assured that this switch of systems is of no disadvantage to them. According to The Writers’ and Artists’ Yearbook of 1984, 'because many publishers' accounts are now computerised there is a trend towards paying the royalties on the price received [net receipts], which can easily be read from a computer printout… appropriate [upward] adjustments are of course made to the royalty figure and the arrangement is of no disadvantage to the author."^[17]

However, during the hearing in 1992 to assess Malcolm’s damages award, Harvey McGregor QC, for Oxford, explained to the court how, contrary to the WAAY assurance, the new system can be used by publishers to reduce authors’ royalty payments. A key passage is transcribed verbatim here.

One of Malcolm’s witnesses, book trade expert Fred Nolan, explored the matter further, explaining how multinational publishers can extend their exploitation of the net-receipts system by means of an infamous practice called ‘sheet-dealing’. He deposed as follows:

'Among the many other advantages (to the publisher) of such (net-receipts) contracts is the fact that they make possible what is called a 'sheet deal'. In this, a multinational publisher of a 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 them at full price for a nice profit to the Group as a whole. The only one who loses is the author.'^[18]

In 2003 two American authors Ken Englade and Patricia Simpson successfully sued HarperCollins (USA) for selling their work to its foreign affiliates at improperly high discounts. This forced a ‘class action’ readjustment for thousands of authors contracted by HarperCollins between November 1993 and June 1999.^[19]

Assessments of Making Names

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....Making Names is an original tour de force. As its title forewarns us, it deals with some modish issues of semiotics, but the overall contents are more comparable to some of Bertrand Russell's later writing, effectively communicating the essentials of philosophy and scientific theorising to students and general readers...With their realistic, direct arguments, the core dialogues in Making Names should make it a widely popular introductory text.'^[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]

A decade later, the book was reviewed in The Oxford Student by Arina Patrikova, who went on to win the 2005 Newdigate prize for poetry: '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.'^[23]

Akme Website and Law Library

In 1997 Malcolm launched an online Literary Law Library at www.akme, posting various legal resources (cases, articles etc.) concerning publishing law,^[24] and in 1998 the site carried a host of materials about OUP’s controversial axing that year of its modern poetry list.^[25] Subsequently the site published the annual accounts of OUP and the Oxford colleges^[26]^[27] and launched a Student Contract Law Library.^[28] The site also aired the facts concerning OUP's acquisition of exemption from tax in 1978,^[29] and, later, of its failed attempts in the 1940s and 1950s.^[30] When BT closed down the site in October 2012, Malcolm reposted all the Akme materials on a new site, http://www.akmedea.com.

In October 2013, the akmedea site was hacked by persons unknown and made to look to search engines (but not to the public) as though it is an illegal pharmaceuticals trading site, and all its links therefore disappeared from Google etc.

Print on Demand

In 1999 Malcolm was invited to write two articles for the Times Literary Supplement, the first about OUP’s constitution^[31] and the second about the legal implications of the then emerging print-on-demand technology which Oxford was introducing.^[32] In the latter article, Malcolm argued that authors with older (pre single-copy reprint clause) contracts would probably be entitled in law to enforce their copyright reversion once a publisher had run out of a book's customarily lithographed copies. He anticipated a test-case that would have repercussions across the publishing industry.

The Remedy

In 1999 Malcolm published his second book, The Remedy, an account of the Oxford lawsuit, with appendices on the print-on-demand controversy, the Malcolm-derived case Myers v Macmillan,^[33] and the origins of OUP’s tax-exemption.The Remedy was reviewed in the Times Higher Education Supplement by Henry Hardy, who 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....The Remedy, which every publisher and perhaps every author should read, includes useful appendices on print-on-demand publishing and on the exemption of OUP and Cambridge University Press from tax, an exemption that is hard to justify, at least as a blanket provision. It may in any case be under threat.' ^[12]

The OUP Tax Exemption Debate

The Remedy was published in 1999, a controversial time for the OUP, following its 1998 closure of its modern poetry list. This was described by ProfessorJon Stallworthy, the founder of the list, as 'an act of vandalism.'^[34] In February, Arts Minister Alan Howarth made a speech in Oxford in which he denounced the closure: 'OUP is not merely a business. It is a department of the University of Oxford and has charitable status. It is part of a great university, which the Government supports financially and which exists to develop and transmit our intellectual culture...It is a perennial complaint by the English faculty that the barbarians are at the gate. Indeed they always are. But we don't expect the gatekeepers themselves, the custodians, to be barbarians.'^[35]

With OUP's charitable status already in the news, The Remedy’s appendix on the Oxbridge presses' tax exemption was seized on by the media, provoking much public discussion in the UK, USA, South Africa and India. In November, the Oxford Times made The Remedy's publication and the controversy over OUP's tax its front page lead story.^[36] In 2001, Oxford finally lost a 25-year battle to retain its tax exemption in India.^[37] Asked by the Oxford Times if his campaigning had influenced the decision, Malcolm said, 'I did get involved slightly last autumn by talking to the Indian Solicitor General. Whether that had any effect on the outcome I don't know, but it was a fine decision.'^[38] In 2006, www.akme 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.^[39]^[40] In 2009, The Guardian invited Malcolm to write an article on the subject.^[6]

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.'^[12] The Delegate referred to was Dr Alan Ryan, who in 1985 in two reports had recommended Making Names' publication.^[10]^[41] 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.'^[42] 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'.^[42] 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 near 'The Oxford Story' tourist attraction. It was described in The Oxford Times as 'The strangest bookshop and exhibition ever seen in Oxford.'^[43] The shop sold Malcolm's two books, with all proceeds going to Oxford University's £12,500 costs bill. The 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', which 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.'^[43] 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'.^[43]

Borders Incident

Malcolm was in the press again in October 2002, when a talk and signing session he was invited to give at Borders Bookshop in Oxford was cancelled. Because it had already been advertised, Malcolm and a dozen members of the public turned up anyway. 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.' ^[44] 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.'^[45]

Campaign to be Chancellor

In March 2003, upon 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.'^[46] 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.'^[46] Although his candidacy was seen by many as a prank, in February, the Oxford Student editorial declared, 'The anti-establishment figure Andrew Malcolm is becoming the serious contender.'^[47] However, despite having the requisite number of Oxford graduate nominators, Malcolm was forced to withdraw from the contest because eight of his signatures had not 'conferred', or been officially given, their Oxford degrees, thereby invalidating his bid. 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.'^[48]

References

External links

http://www.akmedea.com/