Andrew Malcolm (born 10 October 1948) is a British author and campaigner.
He pursued a seven-year-long 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 in The Observer, Laurence Marks wrote, "It is the first time in living memory that Grub Street has won such a victory over its oppressors". 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 permanently barred from denigrating Malcolm or his work Making Names. Making Names is the first book in literary history to be afforded such legal protection.
Malcolm campaigned against the charitable status and tax exemption of the Oxford University Press, and was described by Private Eye as "the scourge of OUP".
Making Names Malcolm self-published Making Names in 1992 under the imprint Akme. According to WorldCat, the book is held in 21 libraries. In 1999 he published his second book, The Remedy, an account of his battle with the Oxford University Press.
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 skeptical 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..."Andrew Malcolm, Making Names, AKME publications, 1993In May 1985, after nine months of negotiation, Making Names was accepted for publication, subject to certain revisions, by the Oxford University Press 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." OUP 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." 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."
In Hardy's own account, Malcolm's book then "fell victim to an internal disagreement at Oxford University Press" when its managing director, Richard Charkin, overruled Hardy's favourable view, 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.
Reviews In an affidavit for the damages assessment, Professor Roy Edgley of Sussex University said, "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."
Upon its publication in 1992, Making Names 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....Malcolm, as his title forewarns us, 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....The core dialogues in Making Names should prove to be a popular introductory text in public and college libraries, especially for students of philosophy, general studies, applied linguistics and English language teaching methods....Making Names is an original tour de force..."
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".
The October 1993 paperback edition carried commentary from Karl Popper, made in an April 1993 telephone call which Popper 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."
Arina Patrikova, who went on to win the 2005 Newdigate prize for poetry, reassessed the book in 2002 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."
Malcolm vs. Oxford University, 1986-1992 Following OUP's refusal to publish his book, Malcolm issued 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, although Deputy Judge Gavin Lightman found that Hardy had made a firm commitment to Malcolm, he concluded 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
Lightman's decision was 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." Malcolm was awarded damages and costs.
Authors' royalties and 'sheet dealing' While the contract case clarified and in certain respects extended authors' rights, the ensuing assessment of damages proceedings (1991–1992) shed light on modern royalty agreements. In particular, the assessment dealt with 'sheet dealing'. Rather than, as formerly, paying royalties based on a book's cover price, publishers nowadays often prefer to pay royalties based on the publisher's net receipts, a practice which facilitates, amongst other things, multinational 'sheet dealing'. One of Malcolm's witnesses, author and former publishing executive Frederick Nolan, explained how this could benefit publishers at the expense of authors:
Print on Demand In 1999, Malcolm was invited to write two articles for the Times Literary Supplement, the first about the constitution of Oxford University Press and the second about the legal implications of the print-on-demand technology Oxford University Press was then introducing. In the latter article, Malcolm argued: "There are several powerful reasons why authors with existing contracts might wish to enforce the reversion of their copyrights in their out-of-print (printed on demand) works, and there is waiting to be set an important legal precedent which would at once allow them all to do so."
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."
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. 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."
With OUP's charitable status already in the news, The Remedy 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. In 2001, Oxford finally lost a 25-year battle to retain its tax exemption in India. 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."